author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Nell BROOKS and Sharon Brooks v. CITY OF BIRMINGHAM.
    6 Div. 278.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      G. Bennett Haynes, Jr., of Legal Aid Society of Birmingham, Birmingham, for appellants.
    Catherine S. Roberts, Asst. City Atty., Birmingham, for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On an appeal from a conviction in the Municipal Court of the City of Birmingham, a jury found each of the appellants guilty on a complaint based on Section 54-1 General Code of the City of Birmingham, 1964, as last amended, which provides:

“It shall be unlawful for any person to go upon or remain upon the lands, buildings or premises of another or any part, portion or area thereof after having been forbidden to do so, or warned not to do so, either orally or in writing, by the owner, lessee, custodian or other person in possession thereof, his agent or representative, or after having been forbidden to do so or warned not to do so by a sign posted on such land, building, premises or part, portion or area thereof at a place where such sign may be reasonably seen; provided that this section does not apply to police officers in the discharge of their duties.”

The two cases were consolidated for trial with the consent of defendants. The jury fixed the punishment of each at a fine of $100.00, and the court rendered judgment accordingly.

A major insistence of appellants is that the ordinance upon which each was tried is “inconsistent” with Code of Alabama 1975, § 13-2-100. If true, the ordinance is invalid. Constitution of Alabama 1901, Article IV, Sec. 89; Code of Alabama 1975, § 11-45-1.

Code of Alabama 1975, § 13-2-100 provides:

“Any person who, without legal cause or good excuse, enters into the dwelling house or on the premises of another, after having been warned within six months preceding not to do so; or any person, who, having entered into the dwelling house or on the premises of another without having been warned within six months not to do so, and fails or refuses, without legal cause or good excuse, to leave immediately on being ordered or requested to do so by the person in possession, his agent or representative, shall, on conviction, be fined not less than $25.00 nor more than $100.00 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than three months.”

The asserted inconsistency between the ordinance of the City and the law of the State is based upon the omission from the ordinance of the substance of the provision in said law that limits the offense proscribed to conduct occurring within six months after an accused had been given the prescribed warning. Appellants rely upon Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979) and other cases cited therein. We think a correct determination of the particular issue is to be found in the conclusions reached by Judge DeCarlo in Atkins, wherein he soundly sets forth differences between municipal ordinances and general laws of a state that constitute inconsistency and those that do not constitute inconsistency.

“Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the local law prohibits anything which the State law permits. Ligon v. City of Gadsden, [21 Ala.App. 312, 107 So. 733] supra. See also Kim v. Town of Orangetown, 66 Misc.2d 364, 321 N.Y.S.2d 724". Atkins, supra, at 369 So.2d 325.

Code of Alabama 1975, § 13-2-100 does not permit one to trespass upon the property of another, even though he may never have been warned not to do so. In the area of private property, there are private rights. The appropriate state can and should protect those rights, but it is without power to permit a violation thereof. The possessor of real property has the legal right to freedom from an invasion of the real property by anyone without the possessor’s permission express or implied. In Atkins, the alleged offense was not on private property, but on a “public street or highway.” Private rights of no one other than those of Atkins were involved.

In Atkins, supra, at 369 So.2d 326, it is stated:

“We recognize that a municipal ordinance which enlarges upon the provisions of a State statute by requiring more restrictions than the State law is not unconstitutional as long as the State statute is not exclusive. State ex rel. Woodruff v. Centanne, 265 Ala. 35, 89 So.2d 570. However, the ordinance here in question does not enlarge upon any existing State statutes; no such statute exists on the State level. ... ”

Therein lies a distinguishing difference between Atkins and the instant case. The ordinance now under consideration does enlarge upon the provisions of the statute on the subject, does require more restriction than the statute, which, however, according to Atkins, is not thereby rendered invalid “as long as the'State statute is not exclusive.” In the light of the difference between the nature of, and the rights affected by, the ordinance and comparable statute, as shown by the circumstances in Atkins, and the nature of, and the rights affected by, the ordinance and comparable statute in the instant case, the statute here involved is not, and does not purport to be, exclusive, as shown by the authority relied upon and cited in Atkins, State v. Centanne, in which it is stated at 265 Ala. 37 and 89 So.2d 571:

“It is well settled that the fact that an ordinance enlarges upon the provisions of a statute by requiring more restrictions than contained in the statute creates no ‘conflict,’ unless the statute limits the requirements for all cases to its own prescriptions. Smith v. Town of Notasulga, 257 Ala. 382(2), 59 So.2d 674; City of Birmingham v. West, 236 Ala. 434, 183 So. 421; Mitchell v. City of Birmingham, 222 Ala. 389, 133 So. 13.
“The provisions of the ordinance here in question, to which we have referred, do no more than add restrictions to the statutory provisions in that respect. The statute does not prescribe restrictions to be exclusive of all others. Therefore, the first contention of appellant cannot be sustained.”

The ordinance under which the defendants were charged and tried is not inconsistent with general statutory law of Alabama.

Appellants seem to contend also that the • ordinance violates “the equal protection and due process clauses of the United States Constitution and the Constitution of the State of Alabama.” They do not present any argument or submit any authorities in support of such contention, and we conclude that it is not well taken.

Another issue raised by appellants is stated in their brief as follows:

“Without evidence of authority in the Board of Directors of the Mall Merchants Association to bind its members, did Marcie Phillips have the agency authority to give a valid warning against trespass on behalf of Parisians, Inc.”

Marcie (Marcy) Phillips was the person who, according to the undisputed evidence, warned the defendants not to go upon the premises. According to her testimony, she was employed by Alabama Farm Bureau Insurance Company and the Eastwood Mall Merchants Association. Alabama Farm Bureau Insurance Company was the owner of Eastwood Mall, a large suburban shopping center in Birmingham. The merchants, who constitute most if not all the tenants thereof, belong to the Eastwood Mall Merchants Association. Parisian, Inc., a corporation, was one of said merchants. The defendants had entered the store of Parisian, Inc. at the time they were charged with a violation of the ordinance, having arrived there by passing through or over ways provided for the merchants in general and their customers and prospective customers. The position of Marcy Phillips was that of “Marketing Director” of Eastwood Mall. Her duties as summarized by her were to “promote and advertise the Mall and run the office there at the Mall and also work security.” She said, “Well, I’m over the security people that I hire in the Mall.” She testified that she was at a meeting of the Board of Directors of the Merchants Association, which Mr. Ferrell Wood, property manager of the Mall for Farm Bureau Insurance Company, and Mr. Alex Frank Farris, III, who had charge of the “leasing and management of the entire shopping center,” also attended. She stated specifically:

“Q. Then you received direction from Board of Directors of the Merchants Association to tell Nell and Sharon Brooks to stay off the Mall?
“A. Yes.”

Appellants apparently rely upon the principle that one who is merely an agent or employee of the possessor of real estate does not necessarily have the authority of the possessor to warn persons to stay off the property. The principle is illustrated in some of the cases cited by appellant, such as Arrington v. State,168 Ala. 143, 52 So. 928, and Woodruff v. State, 170 Ala. 2, 54 So. 240. In Templin v. State, 159 Ala. 128, 48 So. 1027, the one giving the warning was an agent of the one in possession and he was also an “officer of the law.” It was held therein that in warning one to stay off the particular property he, according to his own testimony, was acting as an officer of the law, and not as an agent or employee of the owner of the property, the one in constructive possession thereof. The cases relied upon by appellants are all distinguishable. Ms. Phillips had much more than the limited authority of many of the agents and employees of the various tenants of the Mall. In warning undesirable persons not to come on the premises, she was acting within the line and scope of her broad authority.

“To hold that ... a managerial officer of a corporation or other designated official with authority in excess of that of only an employee, does not have the power to warn off a trespasser, or to warn against trespassing, under Tit. 14 § 426, Code 1940, or Act No. 533 approved September 16,1963, Laws 1963, p. 1146, without, . . . as to the president, general manager, or general superintendent of a corporation, the express authorization of the stockholders or board of directors, is neither practical nor useful and we have found no prior case in Alabama which intimates that such is or should be the law....” Johnson v. State, 277 Ala. 655, 659, 173 So.2d 824, 827 (1965).

Although Ms. Phillips was not the “president, general manager, or general superintendent” of Eastwood Mall Merchants Association, the nature and breadth of her duties and authority encompassed the implied duty and authority to protect the premises against unlawful intrusion thereon. In addition, she had the express duty and authority to do so by virtue of the action of the board of directors.

The incident upon which each complaint is based occurred on September 7, 1979. The evidence shows that the warning given defendants was soon after the disturbance by defendants at Eastwood Mall in January 1979. Appellants argue that “The Court below erred in allowing Marcie Phillips (pp. 30-33 of the Transcript) and Officer Ben Kelley (pp. 49-51 of the Transcript) to testify at length as to a prior event involving the Appellants.” The reference is to the incident that occurred in January 1979. There was considerable testimony by the named witnesses as to what occurred, but there was little objection by defendants to such testimony, and to some of such testimony defendants’ objection was sustained. From the pages of the transcript cited by appellants, we quote from all of the testimony as to which any objection by defendants was interposed. In the testimony of Ms. Phillips on pages 30-33, the transcript shows:

“Q. Have you had occasion to see Nell and Sharon Brooks at Eastwood Mall?
“A. Yes.
“Q. Would you relate to the Court on what occasion you did see them?
“A. The first time I saw them was in a case where I was a witness in an assault case where I saw them in Wendy’s Sportswear.
“Q. Would you relate to the Court when that was and what you saw happen?
“MR. HAYNES: Your Honor, we are going to object to the question “what happened?” That’s the specifics of a case that’s already been disposed of.
“THE COURT: I’m going to let her testify to it. I’m going to let her testify as to what she saw.
“A. I happened to be in Wendy’s Sportswear at the time, and that’s when I first saw Nell and Sharon and Shirley Brooks. They walked in and a disturbance was caused. It was in January.
“Q. Would you relate to the Court when this was, please, Ma’am?
“A. It was January of last year, January 3rd.
“Q. Please tell the Court what you saw happen.
“A. They beat up the owner.
“MR. HAYNES: Objection. That’s a conclusion.
“THE COURT: You can describe what you saw.
“THE WITNESS: They beat up the owner of Wendy’s Sportswear.
“Q. How did they do that, please, Ma’am?
“A. With their fists, and they scratched him and pulled his glasses off and pulled his hair out and beat him up very badly.
“Q. Did each of these two women here participate in that fight?
“A. Yes, they did.
“Q. You saw them strike that person?
“A. Yes, I did.
“Q. Do you know whether or not the person that was struck received any injuries and whether or not he received any medical attention?
“A. Yes. He was beaten up very badly.
“THE COURT: All you’ve got to do is object.
“MR. HAYNES: I do.
“THE COURT: I sustain it. She can describe what she saw. What else beyond that is immaterial, I think, in my judgment.
“Q. Did you see any blood on that occasion?
“MR. HAYNES: Objection, Your Hon- or.
“THE COURT: Overruled.
“A. Yes.
“Q. Who was bleeding on that occasion?
“A. Jerry Routman, the owner of Wendy’s.”

It may well be that the court should have been stricter on the State by limiting it more than it did as to what it showed with reference to the trouble that formed the basis for the warning given defendants, but the mere fact that defendants had created a disturbance in the past in the nature of a breach of the peace was not a barrier to the admission in evidence of some testimony as to what occurred, in order to show that the warning given defendants was not one that infringed upon any of their constitutional rights by some invidious discrimination against them. Although a store owner has the right to exclude some persons from his store, when open to the public in general, he does not have the right to select his customers to the exclusion of others proceeding within their constitutional rights. Some testimony as to the disturbance in January 1979 was admissible as relevant to any question as to the legality of the warning. We do not find that any overruled objection to such testimony was addressed to testimony that was substantially distinguishable from testimony as to which no objection was made. In none of the testimony of Ms. Phillips, do we find any definitely adverse ruling as to any definite objection of defendants that constituted error prejudicial to defendants.

From the cited pages (49-51) of the transcript as to the testimony of Officer Ben Kelley, we quote the parts thereof that include any objection by defendants:

“Q. All right, sir. What if anything did you see after you arrived and saw that they were being detained?
“A. I saw the store was in disarray, with hangers knocked down, clothes knocked down and everything else, and obviously in disarray. I questioned the Brooks and the owners of the store. They stated that they had an altercation.
“MR. HAYNES: Objection as to what they stated, Your Honor.
“THE COURT: Sustained.
“Q. Did Nell and Sharon Brooks make any statement to you on that occasion?
“MR. HAYNES: Objection, Your Hon- or, that’s on another case that’s' been previously disposed of. No showing of any Miranda warning or anything else.
“THE COURT: Don’t have to be in a misdemeanor. I’m going to sustain it.
“Q. All right, sir. Would you relate to the Court when that was?
“A. I don’t have the reports in front of me. As I said, I have been very sick. I’m supposed to be at the doctor right now. But if I had the reports in front of me-
“MR. HAYNES: Your Honor, we object to what the reports would show.
“THE COURT: Just state your best judgment. Talking about ’79 aren’t we?
“THE WITNESS: Yes, sir.
“Q. Just give me the month, if you recall?
“A. Ma’am, I wish I could help you, but I have been sick for two weeks in bed. I’m supposed to be there now.”

As the quoted material shows, the court ruled in favor of defendants on their objection(s).

We find no error in the record prejudicial to either defendant and the judgments of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . The agent was a “rider or overseer” of workers.

      . The agent was a rental agent.

      . The omissions are express applications to the pastor of a church.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Jerome PELMER v. STATE.
    6 Div. 295.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Robert R. Bryan, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Jerome Pelmer was indicted and tried on one count of grand larceny, § 13-3-50, Code of Alabama 1975, and one count of buying, receiving or concealing stolen property, § 13-3-55, Code of Alabama 1975, stemming from a purse snatching incident in Birmingham, Alabama. The trial court, pursuant to Pelmer’s motion to exclude State’s evidence made at the close of the State’s case, granted the motion as to the latter count but submitted the determination of the larceny count to the jury, which found Pelmer “guilty as charged.” He was sentenced by the trial court to five years imprisonment.

Mary Rutledge, called on behalf of the State, testified that, between 12:30 and 1:30 p. m. on May 23,1979, she had been running some errands at the Century Plaza shopping center in Birmingham, and was returning to her car when “I saw this car pull up. I could sense it over my left shoulder. I thought it was stopping to let someone out” (R. 18). Instead, she stated, a person “ran to me and said, ‘Get me that purse,’ and snatched my purse and we started struggling” (R. 18). Mrs. Rutledge described the car as a white Ford Torino, and the person who grabbed at her purse as a black male, about six feet tall, with plaited hair. After a period of two of three minutes, the black male was able to wrest the purse from Mrs. Rutledge and then return to the Torino, which contained several other black persons. Mrs. Rutledge stated that her purse was worth about $30.00, and that it had contained her eyeglasses worth $135.00, her husband’s watch, which she had taken to be repaired, and $3.00 in cash.

She further testified that, as the Torino drove off, she screamed for someone to stop it, and that another vehicle blocked the Torino, forcing it to turn around and proceed on another route. She noted the license plate number of the car to be ECG-999, and she furnished the police with this information. Mrs. Rutledge identified appellant as the person who had grabbed her purse and stated that she had seen him later on that same day, some three hours after the incident at the police station. She testified that she recovered her purse and checkbook, and that her husband’s watch was later returned to her by the police.

On cross-examination, Mrs. Rutledge denied that she had earlier told the prosecutor and the police that she was not sure of the identity of appellant as the one who took the purse, but did acknowledge that appellant’s hair had been arranged differently.

Pauline Posey testified that, on May 23, 1980, she was also present at the Century Plaza shopping center when she saw a man “coming toward me. He came from just out of nowhere” (R. 34). She stated that she saw the man “grab this lady and sling her down” (R. 35), and that she commenced to scream and run toward the two. By the time she arrived at the spot where the attack had occurred, the man had fled to a car containing two other persons. Ms. Po-sey stated- that she wrote down the tag number of this car and gave it to a by-stander to phone in to the police. The witness identified appellant as the man who had taken the purse from the other woman.

On cross-examination, Ms. Posey testified that she had noticed that the assailant’s hair was “twisted up” and that he had been wearing a “dingy white looking” cover-all, but that she was not certain as to whether he had had facial hair. She further stated that she had first identified appellant as the assailant on the day before the trial while he was in the courtroom, but admitted that he had been the only black person in the room at the time. Ms. Posey also stated that she had told Mrs. Rutledge that she had identified appellant as Mrs. Rutledge’s assailant. •

John Harold Jones, a patrolman with the Birmingham Police Department, testified that he was working on May 23, 1980, on the day shift when around 2:00 p. m. he observed appellant in a 1974 Ford Torino with the license plate number ECG-999. Officer Jones stated that he had heard over his radio that this vehicle had been involved in a purse snatching at Century Plaza shopping center, and that it was registered to a James Lewis, residing on 44th Place North. The officer stated that he proceeded to the vicinity of that location to keep a watch out for the Torino and that he found the car parked there. As he passed the vehicle it began to move away from the curb, and Officer Jones stopped it. The officer stated that he removed three black males from this car and ordered them to “spread” on the vehicle, at which point one broke and ran into a crowd which had gathered. Officer Jones testified that he then subdued the remaining two and placed them in his police car until the arrival of another police car, at which time the two were separated. Officer Jones further stated that he searched the Torino and found a child, which he released to the custody of relatives, and a purse.

Officer Jones stated on cross-examination that appellant told him that Jimmy Gregg had run from the scene, but that he (the officer) did not know whether Gregg was ever apprehended. He further stated that he found the purse on the back floorboard, and that it was of a composition that did not lend itself to fingerprint examination.

On re-direct, the witness testified that he remembered that appellant had plaited hair at the time of arrest and that he was un-plaiting the hair during the drive to the police station.

George Hayes, a detective sergeant with the same department, testified that he conducted the follow-up investigation of the purse snatching at Century Plaza on May 23, and that he had talked to Mary Rutledge on the afternoon of that day at the police station during the course of that investigation. He also stated that he saw appellant that day as well at the station, and had occasion to talk with him after advising him of his Miranda rights from a printed card. Appellant, upon being asked if he understood his rights, said, “I do” (R. 62), and further agreed to talk to him and Officer Jones, who was also present. Sergeant Hayes further stated that appellant was not promised anything and that he was not given any reward or hope of reward, nor was he threatened, intimidated, or coerced. According to Sergeant Hayes, appellant stated that, though he had been present when Mrs. Rutledge’s purse was snatched, Jimmy Gregg had actually taken the purse and that a watch from the purse had later been sold at a local business establishment. The rest of the purse’s contents was discarded on Interstate 59 near the Tallapoosa Street exit. Sergeant Hayes testified that his search at that location proved negative, but that he did recover the watch at the establishment named by appellant. According to the witness, appellant had, at the time of his arrest, plaited hair. He further stated that James Lewis was arrested with appellant, but that Jimmy Gregg had never been apprehended. Mrs. Rutledge, when shown appellant and Lewis, made no positive identification, according to Sergeant Hayes.

At this point the State rested, and appellant’s motion to exclude was granted as to the buying, receiving, or concealing count of the indictment.

Appellant did not present any witnesses nor did he testify at trial.

I

Appellant’s sole contention on this appeal is that he was penalized for exercising his right to a trial by jury by receiving a five year sentence when, if he had pled guilty the day before, as he desired, he would have only been sentenced to two years by virtue of a plea-bargaining arrangement with the prosecutor.

It appears from the record that the prosecutor, counsel for appellant and appellant had all agreed that, if appellant would plead guilty to the buying, receiving or concealing count of the indictment, a sentence of two years would be recommended to the court. It is evident that the trial court was indeed made aware of the existence of this agreement, and confirmed its terms with appellant, although it is by no means clear that the court intended to abide by the agreement, or in fact accept appellant’s guilty plea. Pursuant to the expressed desire of appellant to so plead, however, the court proceeded to examine him concerning the voluntariness of the proposed plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and it additionally appears that appellant executed some type of “Ireland” form, Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), though the form was omitted from the record. See R. 5, 101-105 (we need not quote the colloquy between the trial court and appellant, as it is evident that the voluntariness of the proposed guilty plea is not in issue here). After the Boykin colloquy, but before formally accepting or rejecting a plea from appellant, the court further questioned him as to the ramifications of a guilty plea in light of the provisions of the Habitual Offender statute, § 13A-5-9, Code of Alabama 1975 (Acts 1977, No. 607, p. 812, § 1235; Acts 1979, No. 471, § 1; Acts 1979, No. 79-664, § 1):

“THE COURT: * * * How do you plead to the charge of buying, receiving and concealing of stolen property? I might also say this: This is something else I really ought to tell you. You know about it because your lawyer and you were talking about it. You understand under the new code it has a habitual offender statute. Do you know what I mean when I say that? If you have another trial, that occurred after January 1, where the offense occurred after January 1, the way the courts are construing this at the moment, all prior felonies can be placed against you. As I recall, three is life imprisonment, is it not?
“MR. BARBER: With three priors, the fourth conviction of a Class A felony.
“THE COURT: In any event, I’m trying to tell you this felony you’re considering now pleading guilty to, plus the two prior felonies that you already have acquired, when you have another conviction it is going to be very, very hard on you; do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: And I want to particularly tell you I was here when you were just arrested on a robbery charge. You were just arrested on it, so you’re looking right in the face of a robbery trial right now. Did that occur before or after January?
“MR. BARBER: It's my understanding it was around-I believe the warrant was issued yesterday, so I would assume it was after.
“THE COURT: That’s a very, very serious matter. In other words, because you were just arrested on a Class A felony occurring after January 1 and you were found guilty of that Class A felony, that’s life imprisonment; is that right, Mr. Barber?
“MR. BARBER: Yes, sir.
“THE COURT: Without parole?
“MR. BARBER: Without parole.
“THE COURT: Mr. Pelmer, this is a very, very serious step that you’re taking in pleading guilty to this case, I’m telling you right now from the bench, because you’re looking-I’m trying to tell you you don’t have something in the offing that you may or may not be arrested for, you have been arrested on the writ that was just given to you, served to you, that took you upstairs right within the past two hours. This is a very serious step to take, because if you’re guilty of this robbery and it’s a Class A felony, you’re looking at life imprisonment. You better think real, real good about this plea because this is important.
“If you want to talk to him about this again-
“MR. BRYAN: I have discussed it with him at length. I would ask maybe if he could have a few more minutes' to think about it.
“THE COURT: I think so.
“MR. BRYAN: Very good. Could he talk with his wife for a few minutes?
“THE COURT: Well, I think he could talk with his wife. Let him talk with his wife. Let him go back in that witness room and let both you gentlemen go back with him.
“(Whereupon, a recess was had, after which the following proceedings were had and done:)
“THE COURT: Mr. Pelmer, I’m sure I don’t have to tell you this takes a lot of serious thought. I want to emphasize one thing, for the record, your lawyer, Mr. Bryan, is probably the best criminal lawyer in this county. I would say that absolutely unequivocably, and I’m sure any judge in this courthouse would agree. If he’s not the best, he’s among the best, let’s put it that way. His advice deserves a lot of attention. I don’t know how long he’s been practicing, but I know from my time here I have seen him practice all kinds of criminal cases. He’s as good as any lawyer in this whole county. You just give his suggestions a whole lot of thought and his advice a whole lot of thought.
“All right. We’ll recess until tomorrow morning. Everybody take your seats. “I think while we’re here, and for the benefit of this man, I’m going to read into the record what the code says.... (R. 8-12)

The following day, appellant pled not guilty, and was subsequently tried and convicted by a jury.

Ordinarily, of course, this Court is not free to review the propriety of a sentence which is within the statutorily prescribed limits, as is this sentence of five years. Jenkins v. State, Ala.Cr.App., 367 So.2d 587 (1978), cert. denied, Ala., 367 So.2d 590 (1979); § 13-3-50, Code of Alabama 1975 (sentence upon conviction of grand larceny “not less than one nor more than ten years”); but see, Proposed Alabama Rules of Criminal Procedure 31.2 (providing a scheme for sentence review). The issue raised by appellant, however, concerns interference with the basic constitutional right to a trial by jury, U.S.Const. Amend. VI, Ala.Const. Art. I, § 6, and in this particular context we must examine the propriety of the trial court’s action in sentencing appellant to what amounts to an enhanced term of imprisonment.

While we have found no Alabama decision directly on point, we agree with the numerous cases from the Federal and other state courts that a defendant may not be punished with an enhanced sentence after preliminary plea negotiations solely because he elected to take his case before a jury; the effect of such a practice would obviously be “to chill the assertion of constitutional rights by penalizing those who choose to exercise them,” United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). See, United States v. Wiley, 278 F.2d 500 (7th Cir. 1960); Baker v. United States, 412 F.2d 1069 (5th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970); United States v. Stockwell, 472 F.2d 1186 (9th Cir.), cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); Hess v. United States, 496 F.2d 936 (8th Cir. 1974); United States v. Derrick, 519 F.2d 1 (6th Cir. 1975); United States v. Capriola, 537 F.2d 319 (9th Cir. 1976); Blackmon v. Wainwright, 608 F.2d 183 (5th Cir. 1979); People v. Morales, 252 Cal.App.2d 537, 60 Cal.Rptr. 671 (1967), cert. denied, 390 U.S. 1034, 88 S.Ct. 1432, 20 L.Ed.2d 293 (1968); People v. Snow, 26 Mich.App. 510, 182 N.W.2d 820 (1970), affirmed in part, 386 Mich. 586, 194 N.W.2d 314 (1972); Buckner v. State, 56 Wis.2d 539, 202 N.W.2d 406 (1972); People v. Morgan, 14 Ill.App.3d 232, 302 N.E.2d 152 (1973), affirmed, 59 Ill.2d 276, 319 N.E.2d 764 (1974); Commonwealth v. Staley, 229 Pa.Super. 322, 324 A.2d 393 (1974); City of Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342 (1978). Likewise, however, we must acknowledge the difficulty of ascertaining when a trial judge has an improper motive in sentencing a defendant to a term greater than that discussed at some previous point, as, more often than not, a judge furnishes no reasons for his decision in that regard.

The mere fact, standing alone, that a sentence meted out after a jury trial is greater than one possibly discussed in preliminary negotiations is not, in itself, indicative of any improper motive. United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976); United States v. Araujo, 539 F.2d 287 (2d Cir.), cert. denied, 429 U.S. 983, 97 S.Ct. 498, 50 L.Ed.2d 593 (1976); People v. Busch, 15 Ill.App.3d 905, 305 N.E.2d 372 (1973); People v. Houston, 21 Ill.App.3d 209, 315 N.E.2d 192 (1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975). This stems from the accepted proposition that no constitutional difficulty is presented by a sentencing scheme which .allows for some sentence concessions if a person pleads guilty, as opposed to seeking a jury trial. See, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978); Cf. ABA Standards Relating to Pleas of Guilty § 1.8(a) (listing factors to be applied in such instances). Similar propositions have been adopted in other factual contexts, and thus a greater sentence may be meted out in certain instances upon a retrial after the reversal of the original conviction, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (must show aggravating circumstances occurring since original trial), and see Proposed Alabama Rules of Criminal Procedure, 26.12(a) (same), or upon a trial de novo, where such a system is employed. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); Howell v. City of Birmingham, Ala.Cr.App., 383 So.2d 567, cert. denied, Ala., 383 So.2d 570 (1980) (holding there was “no unconstitutional ‘price’ placed on the defendant’s demand for a jury trial on appeal from the municipal court”); Clark v. City of Mobile, Ala.Cr.App., 357 So.2d 675, cert. denied, Ala., 357 So.2d 680 (1978). Yet, the courts have made a distinction, albeit not always clear, between an increased sentence after a not guilty plea based upon various factors, and one imposed solely as a penalty for seeking a trial by jury, holding that the latter is an improper motive. The comments to ABA Standards Relating to Pleas of Guilty § 1.8(b) (prohibiting this motive in sentencing) state:

“The Advisory Committee believes that there is an essential difference between system A, in which defendants who go to trial receive the greatest punishment justifiable under accepted principles of penology and some defendants who plead guilty or nolo contendere receive something less because of the circumstances surrounding their plea, and system B, in which disparity results from giving defendants who stand trial greater punishment than can be justified.” (Footnote omitted)

We must thus agree with the cited authorities that the record must clearly indicate, over and above the fact of disparate sentences, that the trial judge had some vindictive motive in sentencing a defendant to an enhanced term.

To this end, appellant necessarily premises much of his argument on the assumption that the trial court would have agreed with the plea bargain and sentenced him to two years in accordance therewith, and thus the court possessed no reason to increase appellant’s sentence after a jury trial. While appellant relies on North Carolina v. Pearce, supra, and its progeny, which would require a showing of aggravating circumstances between the time of an original trial and a retrial at which an increased sentence is given, we find the decision of United States v. Stockwell, supra, more on point. In Stockwell, the trial judge actually told the defendant that, if he were to plead guilty, he would receive a three year sentence, but, if he elected a not guilty plea and jury trial, he would be sentenced to between five and seven years upon conviction. The defendant pled not guilty, was convicted and sentenced to seven years. On appeal the case was remanded for resen-tencing, the Ninth Circuit stating that:

“... [OJnce it appears in the record that the court has taken a hand in plea bargaining, that a tentative sentence has been discussed, and that a harsher sentence has followed a breakdown in negotiations, the record must show that no improper weight was given the failure to plead guilty. In such a case, the record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.”

In reading Stockwell with other Federal cases on this point, we are of the opinion that Stockwell would be limited to those instances where the trial court, and not the prosecutor, plea bargains with a defendant; in such instances, Stockwell would mandate an affirmative showing that the trial judge had other reasons for the enhanced sentence.

On the facts of the instant case, however, we do not find that the trial court had either accepted the two year sentence [indeed, the court merely acknowledged that the sentence “has been recommended to me” (R. 7)], or promised appellant that he would receive that sentence. Cf. Blackmon v. Wainwright, supra (comments of judge did not amount to offer); Griswold v. City of Enterprise, Ala.Cr.App., 384 So.2d 1219 (1980) (error to disallow defendant’s withdrawal of guilty plea when court refuses to be bound by terms of plea bargain); English v. State, 56 Ala.App. 704, 325 So.2d 211, cert. denied, 295 Ala. 401, 325 So.2d 216 (1975) (same); Proposed Alabama Rules of Criminal Procedure, 14.3(c) (judge may be bound by acceptance of terms); Fed.R. Crim.Proc., 11(e) (judge not to enter plea negotiations); ABA Standards Relating to Pleas of Guilty, § 3.3(a) (same). Similarly, it is not readily apparent that the trial judge would have in fact accepted appellant’s plea of guilty, if it had been offered, given the harsh provisions of the Habitual Offender act and its potential application to appellant; the acceptance or rejection of the plea would have been committed to the court’s sound discretion in such an instance. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); James v. State, Ala.Cr.App., 380 So.2d 995 (1979), cert. denied, Ala., 380 So.2d 999 (1980). We thus decline the opportunity to require a trial court to supply reasons affirmatively upon the record in a situation where it has not manifested itself as a party to a plea bargain, but we do cite with approval the language of the Sixth Circuit in United States v. Derrick, supra:

“It is difficult to urge that trial courts express themselves freely upon the record when it can be shown that in doing so, they subject themselves to greater risk of reversal or remand. The proper answer, we believe, lies in the understanding of the respective roles of the trial bench and the appellate court in the judicial system and in understanding that the ends of justice are best and necessarily served when each performs its task openly and honestly, even at the risk of exposing error.”

We have, however, carefully examined the record and conclude that there is no indication that the trial judge was in any manner seeking to punish appellant for electing a jury trial on a not guilty plea. In sentencing appellant the following was said:

“THE COURT: All right. You heard the verdict. In accordance with the jury verdict the defendant is adjudged guilty. “Do you have anything to say before sentence is pronounced against you?
“THE DEFENDANT: I just want to explain why the kid was in the car at the time. Your Honor, my kid had a bad fever and I was trying to get away to Century Plaza to get some money from my wife. She worked at El Chico at the time. Boom, it just happened all at once, you know. But I do regret having the kid in the car at the time.
“MR. BRYAN: I might mention just if the Court will consider in sentencing, that he has been employed since he’s been out of the service continually-Well, through yesterday-at El Chico.
“THE COURT: Service carries great weight with me.
“MR. BRYAN: And I might also ask the Court to bear in mind the defendant wanted to plead guilty for the extent of his involvement in this yesterday, and it was only in response to my suggestion and my advice that this case was tried in view of this new habitual offender statute.
“THE COURT: The fact that he’s found guilty in no wise mitigates or slackens or slows at all your advice. Your advice was just as right as rain in my judgment. “All right. Be the judgment and sentence of the Court that the defendant be imprisoned in the penitentiary for a term of 5 years . ... ” (R. 94-95)

While the court did not furnish any reasons as to why appellant received five years, either during sentencing or at the hearing on the motion for new trial, we note that the court was aware of appellant’s history of prior felony convictions (R. 73-74). Further, appellant was found guilty of grand larceny by the jury, but had apparently discussed a two year sentence on the buying, receiving, or concealing count. When these factors are combined with the testimony as adduced at trial, ample reasoning exists to support the trial court’s actions. Authorities cited. In any event we are not inclined to second guess the trial court on this matter where, as here, no improper motives affirmatively appear.

Having carefully examined the trial record, we find that a jury question was presented as to appellant’s guilt and determine that there were no improprieties in the sentencing process which would dictate a remand. The judgment and sentence below are therefore

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Milton STEELE, alias v. STATE.
    6 Div. 785.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Walter P. Crownover of Crownover & Mountain, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: twenty years’ imprisonment.

Around 8:00 a. m. on December 15, 1977, appellant and three of his younger brothers, Eric, Cedric, and Melvin, arrived at Druid High School where his brothers attended school. The disputed testimony, taken in the light most favorable to the State, revealed that the four brothers went inside to lie in wait for Lee Angelos Williams, a student who had quarreled and fought with Eric the night before. While the victim was climbing the stairs to his second floor homeroom class, Cedric stepped out and asked Williams why he had “jumped on his brother” and pushed him down the stairs to a platform between the two flights of steps. Cedric, joined by Eric, then began punching and kicking the victim into the corner of the platform. At some point the appellant jumped into the fracas and stabbed Williams while muttering, “I’m gonna kill you.” Finally, Melvin ran up the stairs and struck Williams over the head with a weapon described as a “nunchkus” (two wooden sticks with metal tips connected by a metal chain).

Shortly after the ruckus began, the appellant said, “Let’s go,” and the four fled out of a nearby doorway to their car parked in the school parking lot. In the meantime, students witnessing the incident notified the school principal who met the bleeding victim as he was being carried down the hall to the nurse’s station. Two motorcycle policemen and other investigators arrived at the scene as well as paramedics who transported Williams to a nearby hospital. The appellant and his brothers were apprehended within minutes after fleeing the scene.

I

At trial appellant’s counsel objected to the prosecutor’s attempt to prove the character and reputation for truth and veracity of the appellant and other witnesses at school rather than in the community where they resided. Appellant contends that the trial court committed reversible error in overruling those objections.

The State, following the cross-examination of Williams wherein his testimony was impeached, attempted to rehabilitate his testimony by proving that he enjoyed a good reputation at school. After the prosecutor laid the proper predicate, the following occurred:

“Q. Do you know Lee Williams’ reputation in the community for truth and veracity?
“MR. CROWNOVER: We object Your Honor, please.
“MR. JAFFE: Your Honor, may I approach the bench?
“THE COURT: All right, approach the bench.
“(At this time both the attorneys for the State and for the defendant had a conference at the bench outside the hearing of the jury wherein the following occurred). “THE COURT: All right.
“MR. JAFFE: Your Honor, we’d like to cite you the case of Daniels versus State and Dowell versus the State. We submit this goes to of [sic] a statement by a witness has been contradicted that this can be used in support of his testimony.
“THE COURT: I overrule the objection.
“MR. CROWNOVER: We except, Your Honor.
“THE COURT: All right.
“(Back in open court wherein the following occurred in the presence of the defendant, his counsel, all officers as required by law and the jury.)
“Q. Do you know Lee Angelo Williams, over the past two years are you familiar with his reputation in the community where he lives and in school where he attends for truth and veracity?
“A. I cannot answer that question as far as the community is concerned, I do not have that knowledge, I can respond to the part of the question as to his reputation at school.
“Q. All right, sir. Please do.
“MR. CROWNOVER: Your Honor, we object.
“MR. JAFFE: If Your Honor please, work or school is considered in the community if the witness is familiar with it.
“THE COURT: All right, I’ll overrule.
“MR. JAFFE: All right, sir.
“MR. CROWNOVER: We except.
“Q. You are familiar with it in the school, .is that correct?
“A. That’s correct.
“Q. And you’ve known him for two years in the school?
“A. That’s correct.
“Q. All right, sir. What is, in terms of whether it’s good or bad, what is Lee Angelo Williams, this student, his reputation as being a truthful person, is it good or bad?
“A. To my knowledge, it’s very good.” (Emphasis added.)

After the appellant and his character witnesses took the stand, the State called Marion Bryant to rebut appellant’s reputation for truth and veracity. Appellant’s counsel specifically objected that the State had not laid a proper predicate. Ms. Bryant, who taught the appellant for nine months some three years prior to the incident, testified that he had a bad reputation for truth and veracity at school, but admitted she knew nothing about his reputation in the community where he lived. The State also attempted to prove the bad reputations of appellant’s three brothers for truth and veracity. All three brothers had testified for the appellant. In rebuttal the State recalled Douglas Killough, their high school principal, who avowed that they all had bad reputations for truth and veracity. He stated that he only knew their reputations at school and admitted th^t he could not testify as to their general reputations for truth and veracity in the community where they lived.

It should first be noted that, with one exception, appellant’s counsel assigned no grounds for his objections to the testimony in question. Our supreme court stated in Wallis v. Rhea & Ross, 10 Ala. 451 (1846), and later quoted with approval in Brown v. State, 229 Ala. 58, 155 So. 358, 360 (1934):

“Undefined objections should never be made to the admission of evidence; and it may be laid down generally, that if the party making them, will not particularize, the court is not bound to cast about for the grounds upon which, in the mind of counsel, they are rested, but may promptly disregard them. . . . ”

Cited in Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974); Prince v. State, 50 Ala.App. 644, 282 So.2d 83 (1973). Therefore, the appellant, by his general objections, has presented nothing for this court to review.

The only specific objection raised by appellant’s counsel was that the State had not laid a proper predicate for Ms. Bryant’s testimony. We conclude that the trial court correctly overruled the appellant’s objection as the State properly predicated Ms. Bryant’s testimony by establishing that she had taught the appellant for nine months and had heard and observed others speak of the appellant. Although other grounds for objection may have been assigned, review on appeal is limited to the ground assigned. Prince v. State, supra.

Even had the appellant properly preserved the question for review, his contention would fail. As early as 1909, Alabama courts have recognized that:

“The general rule is that, in order to impeach a witness by proof of bad character, the predicate is a knowledge of his character in the community or neighborhood in which he resides; but the term ‘community’ or ‘neighborhood’ is not susceptible of exact geographical definition, but means in a general way where the person is well known and has established a reputation. The inquiry is not necessarily confined to the domicile of the witness, but may extend to any community or society in which he has a well-known or established reputation. It is a matter of common knowledge that many men have their domicile at one point and business at another, spend much of their time at the latter, and in fact have a better established reputation there than at the place of their actual domicile. . . . ”

Richard P. Baer & Co. v. Mobile Cooperage & Box Mfg. Co., 159 Ala. 491, 49 So. 92, 95 (1909). See also: Chavers v. State, Ala.Cr.App., 361 So.2d 1096, reversed on other grounds, Ala., 361 So.2d 1106 (1978); Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927); Marasso v. State, 18 Ala.App. 488, 93 So. 226 (1922).

This court quoted Professor Wigmore in Chavers v. State, supra, at 1103, explaining:

“ ‘But in the condition of life today, especially in large cities, a man may have one reputation in the suburb of his residence and another in the office or the factory at his place of work. . . . There may be distinct circles of persons, each circle having no relation to the other, and yet each having a reputation based on constant and intimate personal observation of the man.’ ”
Wigmore on Evidence § 1616 (3rd ed. 1940).

See also: Gamble, McElroy’s Alabama Evidence, § 26.02(5) (3rd ed. 1977).

It appears that due to the increasing mobility of modern society a person may have separate and distinct reputations in his working community and his residential community. As most teenagers attend school rather than work and spend seven to eight hours each day, nine months per year, in school, it necessarily follows that they would become known and establish reputations among their classmates and teachers. The school, under those circumstances, becomes one of the “distinct circles” from which a person’s reputation may be established. Therefore, the trial judge properly admitted the reputation testimony in question.

II

Appellant argues that reversible error resulted from the refusal of the following requested charges:

“Defendant’s Charge # 22
“The Court charges the jury that to reduce an offense to an assault and battery, it is not necessary that the defendant, at the time he struck the blow, was unconscious of what he was doing, but, if there was a sufficient provocation to excite sudden passion, and the defendant acted under such passion, then the presumption is that the passion disturbed the sway or reason [sic], and made him regardless of his act, if you believe from the evidence, that the blow struck by Milton Steele resulted from heat of passion, engendered by an attack upon his younger brother and not from malice, then you cannot convict the defendant of assault with intent to murder.”
“Defendant’s Charge # 23
“The Court charges the jury that if you believe from the evidence, that Milton Steele struck Lee Angelo Williams with a knife, without malice, but as the result of a heat of passion, engendered by Lee Angelo Williams having attacked his younger brother, then you cannot convict the defendant of assault with intent to murder.”
“Defendant’s Charge # 26
“The Court charges the jury that if you believe from the evidence that the defendant, at the time he struck Lee Angelo Williams with a knife, did so as a result of a heat of passion, engendered by an attack upon his younger brother, then you cannot convict the defendant of assault with intent to murder, but assault with a weapon, or assault and battery at the most.”
“Defendant’s Charge # 27
“The Court charges the jury that if you believe from the evidence, that Milton Steele struck Lee Angelo Williams with a knife, without malice, but as the result of a heat of passion, engendered by Lee Angelo Williams having attacked his younger brother, then you cannot convict the defendant of assault with intent to murder but of assault with a weapon or assault and battery at most.”

Appellant submits that these jury instructions would have made it clear to the jury that the attacks on the appellant’s brother were sufficient provocations to rebut the imputation of malice. We believe the trial judge correctly refused those charges.

It is generally recognized in Alabama that the State must prove intent and malice in order for a defendant to be guilty of assault with intent to murder. Crear v. State, Ala.Cr.App., 376 So.2d 778, cert. denied, Ala., 376 So.2d 788 (1979); Coleman v. State, Ala.Cr.App., 373 So.2d 1254 (1979); Lawhon v. State, 41 Ala.App. 577, 141 So.2d 205 (1962). Both malice and intent to murder may be inferred by the jury from the character of the assault, the use of a deadly weapon, and other attendant circumstances. Helton v. State, Ala.Cr.App., 372 So.2d 390 (1979); Snipes v. State, Ala.Cr.App., 364 So.2d 424 (1978); Hall v. State, Ala.Cr.App., 348 So.2d 870, cert. denied, Ala., 348 So.2d 875 (1977). A knife has been classified as a “deadly weapon” under § 13-1-45, Code of Ala. 1975; Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92 (1973); Roberts v. State, 49 Ala.App. 729, 275 So.2d 709 (1973). However, this court wrote in Hamm v. State, 56 Ala.App. 632, 324 So.2d 345, 346 (1975):

“A killing and sudden passion, excited by provocation, without malice, is ‘manslaughter,’ since malice and heat of passion cannot co-exist, and is not murder. Smith v. State, 31 Ala.App. 12, 11 So.2d 466, cert. denied, 243 Ala. 627, 11 So.2d 473. To authorize a conviction for assault with intent to murder, evidence must show an assault with intent to take life, under circumstances which, if death had resulted, would have constituted murder. Thompson v. State, 37 Ala.App. 446, 70 So.2d 282.”

Charge No. 22 omits the principle that the appellant’s brother must be free from fault in bringing on the difficulty before the appellant can legally strike a blow in his defense. The appellant could not claim justification in defense of another where the person defended was not free from fault. That principle was aptly stated in Weaver v. State, 1 Ala.App. 48, 59, 55 So. 956 (1911):

“As a general proposition, the right of one to defend another is coextensive with the right of the other to defend himself, and the one who defends the other is upon no higher plane than the one defended; and, so, if the one defended is not free from fault in bringing on the difficulty, his defender cannot be, for when one intervenes to defend another, even though that one be in imminent danger to life or limb, he does so at his peril, if he strikes in defense of one not free from fault in bringing on the difficulty . .. . ” (Citations omitted.)

Even if the appellant, as Charge No. 22 instructs, acted under sudden passion engendered by an attack on his brother, still his sudden passion is not legally recognized nor the provocation legally sufficient if the brother was not free from fault in bringing on the difficulty. Otherwise, defendants would be entitled to have similar charges given to the jury under ridiculous circumstances. For instance, suppose two brothers rob a bank and one is assaulted by a bank guard and the other stabs the guard to free his brother. No court would be justified in submitting to the jury the narrow principle of law that one acting on sudden provocation engendered by an attack on his brother may be acquitted of assault with intent to murder. Such a charge under the circumstances would not only be misleading, but would likewise be abstract under the particular facts of the case. Clark v. State, 54 Ala.App. 183, 306 So.2d 51, cert. denied, 293 Ala. 749, 306 So.2d 54 (1974); Clark v. State, Ala.Cr.App., 333 So.2d 885, cert. denied, Ala., 333 So.2d 890 (1976); Slaughter v. State, 47 Ala.App. 634, 259 So.2d 840, cert. denied, 288 Ala. 751, 259 So.2d 845 (1972).

Likewise, Charge No. 22 was properly refused in the instant case even though very similar verbiage was approved under certain factual circumstances set out in Smith v. State, 86 Ala. 28, 5 So. 478 (1888). In that case the charge in question began “To reduce the offense to an assault and battery” and concluded with “if the jury believe this from the evidence, they may find him guilty of assault and battery merely-”

In the instant case, Charge No. 22 purports to instruct the jury at the beginning on the standard for reducing the offense to assault and battery, but after setting out the proposition of law stated in Smith ends with a charge that the jury “cannot convict the defendant of assault with intent to murder.” The charge in Smith, supra, began as an instruction as to what circumstances may reduce the offense to a lesser offense, and it concluded by giving the jury the option of returning a verdict as to that lesser offense. However, the instant charge begins to instruct concerning a lesser offense, but concludes in language which appears to direct a com-píete acquittal under the hypothesis used. The charge is, therefore, confusing and misleading in concluding with a different instruction than that with which it began.

Charge Nos. 23, 26 and 27 each omit the necessity of the brother being free from fault as set out concerning Charge No. 22, supra. Additionally, the trial court gave an extensive and comprehensive oral charge to the jury, among other things, defining the crime charged; explaining malice and intent; explaining and defining adequate provocation and passion; and instructing on the principles of law concerning defense of another and self-defense. Those principles of law which appellant attempted to set out in the refused charges referred.to above were properly explained in the court’s oral charge. Section 12-16-13, Code of Ala. 1975.

At the end of the trial court’s oral charge, both the appellant and the State announced “No objections.” The appellant’s contention for the first time on appeal that a portion of the oral charge was incorrect is not subject to review. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967); Tuck v. State, Ala.Cr.App., 384 So.2d 1240 (1980).

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Wendell TINKER v. STATE.
    7 Div. 696.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Robert B. French, Jr., Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charges that before the finding of this indictment Wendell Tinker and Mary McBryar, whose names to the Grand Jury are otherwise unknown than as stated, unlawfully and with malice aforethought, did assault George Smith, with the intent to murder him, contrary to law and against the peace and dignity of the State of Alabama.”

A trial was had and the jury was unable to reach a verdict. A mistrial was entered of record. The State then elected to sever the defendants and try appellant. He was arraigned in the presence of retained counsel and pleaded not guilty. The jury returned a verdict finding appellant guilty of assault and battery and assessed a fine of $500.00 against him. As additional punishment the Court sentenced appellant to six months in the county jail. Appellant gave notice of appeal and is represented by trial counsel.

The evidence adduced during the trial was in hopeless conflict which only a jury could resolve. The conflicting testimony was resolved against appellant.

George Smith was the victim and the State’s principal witness. He was a former brother-in-law of Sherman McBryar who was previously convicted of murder in the first degree and sentenced to life imprisonment in a totally unrelated case. His conviction was affirmed by this court in 1979. Ala.Cr.App., 368 So.2d 568, writ denied, Ala., 368 So.2d 575. Appellant’s name was mentioned in this case as having taken part in the murder for which Sherman McBryar was convicted.

Smith and McBryar had married twin sisters, Brenda and Linda. When Sherman McBryar and his wife were divorced he married Mary Nunnelly whose former husband, Donald Nunnelly, married Linda. Appellant is also a brother-in-law to Sherman McBryar, having married Sherman’s sister, Jewell. At the time of appellant’s trial Sherman was serving a sentence in the Federal Penitentiary in Atlanta on a kidnapping conviction. These matters are set forth here as background information to show the relationship of the parties in a complex situation stemming from multiple divorces and remarriages. Appellant permitted Mary Nunnelly McBryar, Sherman’s new wife, to live in a trailer located on his property while Sherman was serving the federal sentence in Atlanta.

It would be accurate to say that hard feelings were rampant and that discord played a major role in the actions of this trouble-torn family. There were accusations and counter-accusations, recriminations heaped upon recriminations, all of which culminated in the shooting of George Smith by appellant on Saturday, August 13, 1977.

Smith had improved a house to sell and this house was burned. Smith suspected appellant and Mary McBryar of starting the fire and accused them. Appellant denied any involvement in the arson. Appellant accused Smith of shooting at his house on several occasions while he was working in Tennessee. Smith denied the shootings. On August 4, 1977, Smith ran an ad in a local paper in Trenton, Georgia, where the burned house was located, offering a $500.00 reward for information leading to the conviction of the person or persons burning the house. He did not receive any information and a week later he ran another ad, increasing the amount of the reward to $1,000.00. He did not receive a response to this ad.

The passage of time only served to fan the smouldering flames engendered by hard feelings resulting from the wife swappings. There were fights between Mary McBryar and Linda Faye Nunnelly, the former Mrs. McBryar. Several arguments developed over title to certain furniture and other matters resulting from the inter-marriages.

The defense claimed that Smith and those associated with him harassed appellant and the people living with him by making numerous telephone calls to his residence. He had his telephone number delisted from the telephone book. The defense claimed that after appellant’s telephone number was de-listed Smith started driving by appellant’s residence and shooting into his camper and into his front yard and also into the McBryar automobile. Smith denied these accusations. Mrs. McBryar and Mrs. Tinker contacted the Sheriff’s Office and reported these incidents and it was suggested that Mrs. McBryar move to Georgia to get away from Smith. This suggestion was unacceptable to either Mrs. McBryar or the Tinkers. Mrs. McBryar was told she could have a warrant issued for the arrest of Smith, but she declined, saying she did not want to swear out a warrant.

On Thursday, August 11, 1977, Smith allegedly called appellant at his job in Chattanooga, Tennessee, and told him that he had information that he was involved in burning his house. Appellant told Smith that he did not burn his house and was not concerned with it. He then warned Smith to stop coming to his house and shooting. Smith denied that he had been shooting at or around appellant’s house.

Finally, on Saturday, August 13,1977, the ill feelings between the parties reached a climax. Smith purportedly drove his Nova Chevrolet car to the Sand Mountain Supply near Ider, Alabama, in DeKalb County, Alabama, to buy a window for a building project. The store was closed and he then drove by Shiloh to see if Mary McBryar was still living at appellant’s house. As he passed the residence he saw Mrs. McBryar in the yard near her trailer. According to Smith he was driving at a speed of 35 miles an hour. Appellant contended that Smith shot at Mrs. McBryar. Smith denied the shooting. Mrs. McBryar grabbed a shotgun which she had been shooting that morning with appellant showing her how to eject the spent shells and got into her car to chase Smith. Appellant’s wife told him not to let Mrs. McBryar go alone and appellant got in the car and took the shotgun as they chased the Smith vehicle. It was a pump type shotgun. Mrs. McBryar was driving at a high rate of speed in attempting to overtake Smith’s car.

Approximately a mile from appellant’s residence Smith saw the McBryar car approaching in his rearview mirror. Smith testified the McBryar car rammed his car in the rear. Appellant stated that Smith put his car in reverse and rammed the McBryar car. After the collision and while Smith was trying to get his ear started again, Mrs. McBryar pulled her car alongside Smith’s car and appellant pointed the shotgun at Smith and fired at point-blank range. Smith ducked behind the car door and the shot missed him. Smith raised up and heard a clicking noise as appellant ejected the spent shell. Ducking as appellant fired the second shot, Smith was struck a glancing blow to his head by several pellets. Smith stated, “I went back down behind the door and told him he had shot my brains out.” At this point Smith said Mrs. McBryar opened the driver’s door of his car and had a soft drink bottle in her hand. He stated:

“It was a 16 ounce bottle, and it was full, and I looked at her and I was trying to hear what was going on with the shotgun and she broke the bottle over my head, and then she got out and I was crouched down in the seat looking backwards, and she reached back in and got me by the hair and jerked me, and I came up into the line of fire and he shot me in the back.”

Smith jumped from his car and grabbed the barrel of the shotgun and a struggle ensued between Smith and appellant for possession of the weapon. While the struggle was in progress Mrs. McBryar broke four more 16 ounce bottles on Smith’s head, saying, “Won’t anything kill this s.o.b.” Finally, Smith released the gun because the shotgun blasts had fractured his hip bone and he was in intense pain and had lost a lot of blood. Smith drove to the sheriff’s office in Trenton, Georgia, where he was removed to the hospital.

Appellant raises several issues on this appeal which he contends entitle him to a reversal. He claims the trial court erred in allowing the prosecuting witness to testify that he had information that appellant participated in an arson in Georgia in 1977 and a murder in 1971. He contends that this testimony was introduced as evidence of bad character, which tended to establish in the defendant a criminal propensity. The record reflects that the State’s purpose in adducing this evidence was to establish the relationship of the parties and was not offered to prove the truth of the matter asserted. The State’s theory was that the statements of Smith to appellant were such as to supply appellant with a motive to kill Smith and from this motive the jury could infer the intent to kill when he fired the shotgun at the victim.

In Nickerson v. State, 205 Ala. 684, 88 So. 905, the Supreme Court quoted McAdory v. State, 62 Ala. 154, as follows:

“It is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense.”

Moreover, Smith’s testimony concerning the telephone conversation with appellant does not violate the hearsay rule because it was material to prove that appellant had a specified motive to commit the act charged. McElroy’s Alabama Evidence, Section 273.-02.

The trial court gave careful instructions to the jury that they were not to consider the evidence as proof of the commission of the arson and murder but merely as proof of the contents of the conversation between Smith and appellant. These instructions rendered harmless any error that might have occurred in the admission of this telephone conversation with appellant. McElroy’s Alabama Evidence, Section 12.01. Appellant reserved no exceptions to the oral charge to the jury.

The evidence is uncontroverted that appellant shot at Smith three times at close range with a pump shotgun and hit him once. There was no believable testimony that the victim was armed at the time of the shooting incident. That appellant was guilty of the offense for which he stands convicted was admitted by appellant during his testimony.

From the record:
“Q. After the cars got stopped, what happened?
“A. He (the victim) fell down in the floorboard, and I shot, and then he raised his head up again, and I shot at him again, and he kept trying to squirm around there, and so I shot him the third time.
“Q. And what shot did you hit him?
“A. The last one I think.”

The circumstances surrounding the shooting precluded any claim of self-defense. Appellant testified he never saw the victim with a pistol, that the victim had not shot at him, but only tried to wrest the shotgun away from appellant after appellant shot him.

During his motion to exclude the State’s evidence for failure to make out a prima facie case of assault with intent to murder, appellant’s counsel admitted the State had proved the offense of assault and battery, “perhaps aggravated assault.”

Error which might be prejudicial in a close case does not require reversal when evidence of guilt is strong. U. S. v. Lipscomb, 435 F.2d 795 (Fifth Circuit 1970). An error as to a ruling on the admission of evidence is rendered harmless to the accused where his own testimony establishes his guilt. Miller v. State, 168 Ala. 100, 53 So. 278.

Appellant claims the trial court committed error in allowing the State to introduce into evidence pages from a transcript of a previous trial where Mrs. McBryar testified inconsistently with her testimony in appellant’s trial. Only two pages of the transcript of the previous trial were allowed into evidence. The court blocked out all testimony except that relating to the inconsistent testimony of Mrs. McBryar. These two pages reflect the following:

“Cross Examination
By Mr. Rayburn:
“Q. You are Mary McBryar?
“A. That’s right.
“Redirect Examination
By Mr. French:
“Q. One other question since he went into it. Who shot George Smith?
“A. I did.”

Thus, it is affirmatively shown that appellant’s own counsel brought out Mrs. McBryar’s inconsistent testimony, and he has no right to now complain about his counsel’s actions. Mrs. McBryar was shown the transcript of her previous testimony where she was asked who shot George Smith and her reply was, “I did,” but she said she did not remember it.

In Lawson v. State, 36 Ala.App. 438, 57 So.2d 643, the court held that the credibility of a witness may be attacked by showing that at a previous time and place he made a statement which was out of accord with testimony given at the instant trial. The court went on to hold:

“It may be noted that, before the prior contradictory character of evidence is admissible, the witness involved must either deny he made the previous statement or testify that he does not remember making it.” (citations omitted)

This is precisely the procedure followed in this ease. See also Johnson v. State, 43 Ala.App. 224, 187 So.2d 281.

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

AFFIRMED.

All the Judges concur, except BOOK-OUT, J., who concurs in the result only.


text:
    James Thomas CARTER v. STATE.
    7 Div. 765.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Charles A. McGee, of Traylor & McGee, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment revoking the probation of appellant as to a judgment on April 3, 1979, adjudging him a youthful offender and committing him to “the custody of the Director of the Department of Corrections for a period of 3 years.”

On April 22, 1980, the probation officer of DeKalb County, filed a “delinquent charge,” denominated “Violation of Condition No. 2: New Offense: Murder,” setting forth, inter alia, that on or about April 19, 1980, the probationer had an altercation with one Charlie Ray Nash at a residence in Collinsville, Alabama, and that while Charlie Ray Nash was standing in the front yard, the probationer shot Nash with a pistol. It was further stated in the charge that “Nash was hit one time in the chest area and later died from this wound.” A copy of the charge was served upon the probationer, an attorney was appointed to represent him, and a hearing was held May 8, 1980, at which the probationer appeared with his appointed attorney. Evidence was presented, including testimony of the probation officer and Chief of Police Clement Osborn of Collinsville.

A major insistence of appellant is that there was “no evidence of a corpus delicti” as to the alleged murder and that there was no evidence “that Appellant’s criminal agency caused the deceased’s death.”

The probation officer testified that Charlie Ray Nash had been a complaining witness against the appellant in previous cases. Chief of Police Osborn testified that he knew both the appellant and Charlie Ray Nash, that on April 19, 1980, he received a call “to go to the scene of a homicide in Collinsville,” and when he arrived there, he found other officers already present and “checking the patient, Charlie Ray Nash, to determine if he was alive.” He said they checked his vital signs “and determined that he was dead at the time” they arrived. He observed a wound on Nash, a puncture wound “of the chest,” that appeared to him to be a gunshot wound. He further said that on the next day he had an interview with the appellant, and that after all appropriate warnings had been given to him as to his constitutional rights, appellant told him that he and Charlie Ray Nash had had an argument, that before either of them left the premises the appellant obtained a pistol and shot at Nash. On cross-examination, his testimony was in part as follows:

“Q. Events immediately prior to and at the time of the shooting.
“A. Okay. He stated that when his mother and Charlie Ray were standing out in front of the house, that Charlie Ray drew back his hand like to hit his mother, and let’s see. I believe right after that statement he said, ‘That’s when I shot him.’
“Q. Okay. Did he tell you he thought he was about to harm his mother?
“A. I don’t believe he put it that way. I don’t believe he used that word.
“Q. Did he say anything about he thought he was going to hit his mother?
“A. That’s what I just said. The other details . . .
“Q. Did he tell you whether or not he meant to shoot him?
“A. Whether he meant to shoot him?
“Q. Uh-huh.
“A. No, he didn’t say that.
“Q. Did he ever say T didn’t mean to kill him.’?
“A. Yes, that’s correct. He said that.”

Chief Osborn testified on' re-direct examination that appellant said that at the time he shot, his mother was “on her way back into the house.” According to the witness,

“She wasn’t standing next to Nash?
“A. No, sir. According to Mr. Carter’s statement they had finished their discussion and she had turned to go back in, and Charlie Ray Nash had turned away from her.
“Q. So, they were not even facing each other at that time?
“A. According to the statement, that’s correct.”

To justify the revocation of probation, it is not necessary that the evidence be strong enough to convince the court beyond a reasonable doubt that the probationer has violated a term of his probation. It is sufficient if the court is reasonably satisfied therefrom of the truth of the charge. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Martin v. State, 46 Ala.App. 310, 241 So.2d 339 (1970); Wright v. State, Ala.Cr.App., 349 So.2d 124 (1977); Thompson v. State, Ala.Cr.App., 356 So.2d 757 (1978). There was sufficient evidence to justify the trial court in concluding that the corpus delicti had been shown and that appellant was the person who murdered Charlie Ray Nash.

Appellant’s only other contention is that the trial judge did not “give a written statement as to the evidence relied on and reasons for revoking probation.” The record is to the contrary. The proceedings, including all of the testimony, were reported and transcribed by a court reporter. At the conclusion of the evidence and argument of counsel for the respective parties, the court stated:

“All right, Gentlemen, I’m reasonably satisfied from the evidence that has been presented that the defendant has committed an unlawful homicide while on probation, and I will, for that reason, revoke his probation and require him to serve the sentence originally imposed in this case.”

In one of the paragraphs of a three-paragraph recorded judgment of the trial court and signed by the trial judge, it is stated:

“The court is reasonably satisfied from the evidence that the defendant has violated the law by committing an unlawful homicide as set forth in the delinquency report and therefore the court hereby revokes the defendant’s probation and requires the defendant to serve the remainder of his three-year sentence imposed by this court on April 3, 1979. The defendant is given credit for 30 days jail time toward his three-year sentence.”

A part of the written “delinquency report” to which reference in the judgment was made is as follows:

“The alleged offense allegedly occurred on or about 4-19-80. According to Investigating Officers, the incident took place at the house of Ms. Odell Hill located in Collinsville, Ala. Carter was at Ms. Hill’s house and the victim, Charlie Ray Nash, drove up to the house and got into an argument with Carter. Ms. Hill then broke up the argument. Charlie Ray Nash then went out and got a gun out of his car and came back into the house, and he and Carter got into another argument. Nash then left and went out the front door. At this time, it was alleged that Carter’s step-sister, Christine Smith, passed a pistol to Carter. Carter then went out the back door and around Ms. Hill’s house. At this time, Charlie Ray Nash and Carter’s mother, Jeanette Carter, were standing in the front yard talking. It was at this time that James Carter allegedly shot Nash. Nash was hit one time in the chest area and later died from this wound. Carter was arrested on 4-20-80 by Dekalb County Law Enforcement Officials and charged with the offense of Murder.”

There is no contention that any of the requirements and guidelines which must be met for minimal due process to be accorded a probationer other than a “written statement by the judge as to the evidence relied on and reasons for revoking probation,” were not met. We take it that the requirement of a “written statement by the judge as to the evidence relied on and reasons for revoking probation” relates to a matter of substance and not mere form, so as to correctly inform probationer of the “evidence relied on and reasons for revoking probation.” That he was correctly informed before the hearing that he attended was completed there can be no reasonable doubt and some of it was already in writing; all of it was reduced to writing either contemporaneously or in due course. That no doubt existed as to the “evidence relied on and reasons for revoking probation” is emphasized by the fact that immediately after the court announced that “for that reason” it revoked his probation, his attorney said:

“Judge, Mr. Carter would like to give notice of appeal at this time and point out to the court that he is indigent and cannot afford a transcript.”

Appellant’s right to a “written statement by the judge as to the evidence relied on and reasons for revoking probation” was not violated. See Thompson v. State, Ala.Cr.App., 356 So.2d 757 (1978).

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . Set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and reiterated in Armstrong v. State, 294 Ala. 100, 102-103, 312 So.2d 620 (1975).


text:
    Henry N. WILEY, alias v. STATE.
    8 Div. 352.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Bruce Sherrill of Sherill & Batts, Athens, for appellant.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a verdict and judgment finding defendant guilty of murder in the first degree of William Clark, alias Bud Clark, and sentencing him to life imprisonment.

Lieutenant George Clem of the Police Department of the city of Athens testified that about 1:50 A.M. January 4, 1979, he received a call to go to 804 Lucas Street; he went and found the alleged victim lying on his bed. The victim was dead at the time. The witness testified that he viewed the body after it was removed to the funeral home and observed “several stab wounds on the chest and shoulders.” The victim’s son, Jerome Clark, was in his father’s house at the time Lt. Clem arrived at the scene.

Jerome Clark testified that he had been awakened by the scream of his father and observed a man, whom he identified as the defendant, stabbing his father. He further testified:

“I got up and eased out the door. So when I got out on the porch I hollered and the dude looked around and so I ran out in the road.
“Q. Okay. What did you do after you got out of the house?
“A. Well, I ran out in the road and then I ran back around to the back. About that time he had left and my dad had come out on the front porch.
“Q. You saw your father sitting on the front porch?
“A. Yes, sir.
“Q. How close did you get to him?
“A. Well, I came back on the front porch and he told me to go over next door and call the law.
“Q. Was he bleeding?
“A. Yes, sir.”

Willie Pointer, another witness for the State testified that some time during the night January 3-4, 1979, the defendant talked with him for about five minutes. Upon being question as to what defendant said to him, the witness testified:

“A. At first, he said he had killed a man and I asked him who.
“Q. Told you he had killed a man?
“A. Yeah.
“Q. Did he tell you who he had killed? “A. When I asked him.
“Q. Who did he say he had killed?
“A. He said he had killed Bud Clark.
“Q. What did you say?
“A. I said I didn’t believe it.
“Q. Did he tell you how he had killed Bud Clark?
“A. Told me he had stabbed him.
“Q. Did he tell you what he stabbed him with?
“A. Butcher knife.
“Q. Okay. Was the Defendant drinking?
“A. He had been drinking.
“Q. Had you ever seen the Defendant intoxicated before?
“A. Yeah.
“Q. In your opinion, was he intoxicated?
“A. No.”

On January 6, 1979, Lt. Clem obtained a written statement from defendant in which he admitted that late at night (two nights before) he and a woman with whom he was staying on Lucas Street had been drinking and they went to another house on Lucas Street and went in the house. He said:

“The man in the house got up out of bed when we went in and Elize hit him and he pushed her back, then I stabed [sic] him with a pocket knife. I think I stabed [sic] him in the stomach the first time, then I stabed [sic] him some more but I don’t know how many. After stabing [sic] this person several times we left the house... . ”

The statement consisted of two pages that commenced with the printed acknowledgment that the one making the statement had been advised and duly warned of his right to the advice of counsel and that he was not required to incriminate himself, that he expressly waived his “right to the advice of counsel,” that the statement was made of his own free will “without promise of hope or reward, without fear or threat of physical harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever.” Lt. Clem testified that the handwriting on the statement was his own and that defendant affixed his signature to both pages of the written statement. Lt. Clem further testified:

“Q. Did you tell him that anything he said could be used against him in Court?
“A. Yes.
“Q. Did you tell him he had the right of a lawyer for advice before you started asking him any questions and to have a lawyer with him during questioning?
“A. Yes.
“Q. Did you tell him that if he could not afford a lawyer that one would be appointed for him before questioning started?
“A. Yes.

A major insistence of appellant is that the trial court erroneously admitted the “confession” of appellant. In his brief .he states as reasons therefor the following:

“Here, Appellant had been incarcerated in the Athens City Jail for a period of 48 hours. The officer interrogating the Appellant testified that Appellant had signed a waiver of rights and that the waiver process took only about two or three minutes (R--51). The Defendant had not been informed by the interrogating officers that he was charged with murder before the statement was taken (R-51). The Appellant was played a tape containing statements made by Willie Pointer; and afterwards, Appellant gave the police a statement. In light of all of these circumstances, Appellant’s statement was not of a voluntary nature.

We are unable to agree with appellant that the circumstances stated by him in his brief vitiate a waiver of his Constitutional rights to an attorney and against self-incrimination. There was a lengthy in cam era hearing on the question. Appellant had been in the jail for a period of forty-eight hours before the statement was taken. He was confined on a charge unrelated to the killing of Bud Clark. The court was justified in concluding that the circumstance did not adversely affect the voluntariness of the incriminating statement. As to the time involved in the “waiver process” Lt. Clem said, “Probably two or three minutes or so, I didn’t time it. I don’t know.” Although Lt. Clem did not tell defendant that he was charged with murder before the statement was taken, he did tell defendant that he “wanted to talk to him about the murder of William Bud Clark.” It was not inappropriate for Lt. Clem to give defendant the benefit of the information that Lt. Clem had been given by Willie Pointer, which was conveyed in the best way possible for accuracy by permitting defendant to listen to the tape of the statement made by Willie Pointer.

The only other contention of appellant is that the “autopsy report was erroneously admitted in the absence of the preparer and the Appellant was deprived of his right to cross examination.”

The objection made to the introduction in evidence of the report was as follows:

“We object to the introduction, Your Honor. We would like to state into the record the reasons for the objection. The Defendant objects to the introduction of State’s Exhibit Number Seven for the reasons that the contents of this Exhibit are hearsay. That the preparer of this report, Mr. John H. Kilbourn, is not present in Court and the Defendant is denied the right to cross examine this Defendant. The introduction of this Exhibit into evidence denies the Defendant the right to be confronted by the witnesses against him. The introduction of this Exhibit into evidence is not an exception to the hearsay rule. The introduction of this Exhibit into evidence is not allowed by the Business Records Act of the State of Alabama. This Exhibit is not a record taken in the due course of business as that term is employed by the Legislature of the State of Alabama. This report violates the Defendant’s Constitutional rights.”

The “autopsy report,” constituting “State’s Exhibit Number Seven,” was admitted in evidence over defendant’s objection. According to the testimony of Brent Wheeler, a criminalist for the Alabama Department of Forensic Sciences, it had been in his “custody and control as laboratory supervisor with the Department of Forensic Sciences.” He said:

“The primary investigator in the case involving the State’s Exhibit Seven was John Kilbourn. The report consists of several memorandums prepared by one Mr. John Kilbourn. Memorandum by me, also. A memorandum by another member of my office in Huntsville, Martha Odom. A memorandum by another employee of my office in Huntsville, Rodger Morrison. The report, itself, the certified copy comprises State’s Exhibit Seven is several different reports. But the chief investigator was Mr. Kilbourn since it was a death case.”

Code of Alabama 1975, § 12 -21-35, provides in pertinent part:

“All transcripts of books or papers, or parts thereof, required by law to be kept in the office, custody or control of any public officer, agent, servant or employee of any municipality, city or county of the state of Alabama or the United States, when certified by the proper custodian thereof, must be received in evidence in all courts . . . . ”

In Bickerstaff v. State, Ala.Cr.App., 369 So.2d 315, 316 (1979), it is stated:

“Reports of a State toxicologist and copies thereof are public records which are likewise admissible when offered into evidence. Seals v. State, 282 Ala. 586, 604, 213 So.2d 645 (1968); Alabama Code § 12 - 21 -35 (1975); also see Alabama Code § 36-18-2 (1975). ...”

The quoted statement disposes of defendant’s asserted grounds of objection to the effect that the exhibit constituted hearsay and did not constitute any exception to the rule of exclusion as to hearsay. Moreover, we should state that grounds of objection to the effect that the exhibit is not allowed as evidence under the “Business Records Act of the State of Alabama,” and that it was not taken “in the due course of business” as that term is employed in legislation, are not well taken, as obviously the exhibit was not admitted on the theory that it was such a business record.

Defendant’s objection to the introduction of the exhibit to the effect that it “violates Defendant’s Constitutional rights,” that Mr. Kilbourn was not in court and the defendant was “denied the right to cross examine,” and that the introduction of the exhibit into evidence denied “the Defendant the right to be confronted by the witnesses against him,” deserves further consideration. As to this contention, appellant relies largely upon Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975), which in many respects is like and indistinguishable from the instant case, but in some respects it is different and is to be distinguished from the problem now presented. The reversal in Lowery was largely by reason of the trial court’s admission in evidence of a certified copy of a death certificate of the victim of an alleged murder by defendant. It was held that its admission over an appropriate objection of the defendant, that it should be predicated by testimony of the physician who signed the death certificate, impinged upon his right to confrontation by witnesses against him, guaranteed by the Sixth Amendment of the Constitution of the United States, which now by judicial interpretation has been held to be applicable to trials in the state courts pursuant to the Fourteenth Amendment. It seems clear that in Lowery the objectionable feature of the death certificate was in the showing therein of the cause of victim’s death, which was an essential averment of the indictment charging defendant with the murder of the victim. To that extent the content of the death certificate in that case is like the portion of the autopsy report in this case, which states that the “cause of death” was “hemorrhage as a result of multiple stab wounds.” The remainder of all of the seven page report, denominated therein “Autopsy Protocol,” is a tribute to the accuracy, ability and thoroughness of the toxicologist, but to laymen it consists of minutiae of little, if any, significance. In this respect, the document was different from the document forming the basis of the reversal in Lowery.

Another distinguishing difference between this case and Lowery is that apparently in Lowery there was no evidence, independent of the certificate of death, that constituted evidence that the victim’s death was caused by wounds that other evidence showed were inflicted by defendant. In the instant case, there was testimony of the Limestone County Coroner, who also examined the body of the deceased. He testified that in his opinion the cause of Bud Clark’s death was “Hemorrhage due to multiple stab wounds.”

There was involved in Lowery the testimony on the trial, of a physician who treated the victim prior to his death. He did not view the victim after his death, but he was allowed to testify, over the objection of defendant, that in his opinion, based on personal information and on his examination of hospital records not made by him, the victim “died of the wounds that he sustained.”

In Lowery v. State, at p. 371, it is stated: “We are not holding that a certified copy of a death certificate is inadmissible. We hold that such cannot be used as the sole evidence in a criminal prosecution for murder to prove the cause of death where live witnesses are available to the state, but are not used for that purpose. Likewise, it cannot be used in conjunction with other documents introduced pursuant to Act No. 77, supra [Act No. 77, Acts of Alabama, 1965, 2d Special Session, approved September 30, 1965] or statutes of similar import where the end result would be proof of such key element of the murder charged solely on the basis of certified copies of documents, but without bringing forth available witnesses to confront the defendant or offer him an opportunity to cross-examine them concerning their conclusions.
“The burden of proof in all criminal prosecutions rests upon the State, with the presumption of innocence attending the defendant until that burden of proof has been met. To allow the State to simply introduce a certified copy of a death certificate and thus shift the burden to the defendant to disprove the facts set out therein would be an unconstitutional burden of such weight as to deprive a defendant of a fair trial and due process of law.”

With full adherence to Lowery, supra, and measured by its standards, we find that the trial court was not in error in admitting in evidence State’s Exhibit No. 7. Furthermore, we note that the objection made by defendant was to the exhibit as a whole, not to separate portions thereof that include many entries that do not constitute any charge against defendant or tend to prove any essential elements of the indictment, and therefore could not reasonably be held to have deprived defendant of his constitutional right to confrontation by witnesses against him. It appears that some of the contents of the exhibit were favorable to defendant, particularly that part thereof utilized by defendant on cross-examination of the witness as to an analysis of a blood specimen of the victim showing 0.22% ethyl alcohol.

The opinion of the coroner that the stab wounds were the cause of the victim’s death was undisputed. There was no indication in the evidence to the contrary. Irrespective of any question whether State’s Exhibit 7 should have been admitted in evidence, the admission did not cause any substantial injury to defendant.

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

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

AFFIRMED.

All the Judges concur.