author: DeCARLO, Judge.

text:
    Chester L. WHITLEY, Jr. v. STATE.
    4 Div. 799.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      W. Donald Morgan, Jr., of Smith, Smith & Morgan, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Chester L. Whitley, Jr. was charged on October 9, 1978, with the offense of burglarizing an unoccupied dwelling, and, on September 14, 1979, the Russell County Grand Jury indicted Whitley for the crime of burglary in the second degree.

On October 1, 1979, the appellant appeared in the Russell County Circuit Court and applied for treatment as a youthful offender. This application was denied on October 12, 1979. On that date, he was arraigned and entered a plea of not guilty. Also, he filed a motion to quash the indictment on the grounds that the State of Alabama had denied him his right to a speedy and public trial. A hearing was held on the motion on October 19,1979, and the motion was overruled on November 6, 1979.

The trial was held on November 14, 1979, and the appellant was found guilty. On November 30, 1979, he was sentenced to six years imprisonment.

The indictment in this case, omitting the formal parts, charges:

“Chester L. Whitley, Jr., did, in the daytime, with the intent to steal, break into and enter the dwelling house of Virginia Akin, which was unoccupied at the time,

In support of this indictment, the State presented the following evidence.

Virginia Akins had lived at 903 26th Street, Phenix City, Alabama, for approximately twenty-two years. On September 14,1978, she left home to go to work about 8:50 A.M. Prior to leaving, she checked the doors, windows and screens and found that they were all locked. Returning from work at approximately 11:40 A.M., she found the kitchen window open and the screen lying on the ground below the window. She also noticed that two rifles, a pellet gun, a Columbia eight-track tape player with speakers, a G. E. portable T.V., and a box fan were missing. The witness estimated that the total value of these items was about seven hundred dollars.

Archie Akins, Virginia Akins’ husband, gave substantially the same testimony as that of his wife. However, Mr. Akins’ testimony included identification of the shotgun and weapons taken during the burglary.

After Detective Clifton Smith had taken the original report, Detective Aubry Har-bert of the Phenix City Police Department, conducted a “follow-up” investigation and found that a rifle and a shotgun had been pawned in Columbus, Georgia. One of the weapons was pawned at Herb’s Pawn Shop and the other at the Village Pawn Shop, both in the name of the appellant, Chester Whitley. The pawn tickets bore the appellant’s driver’s license number.

During the trial, Harbert identified the “pawn slips” and stated that he had seen them at the Village Pawn Shop and at Herb’s Pawn Shop in Columbus, Georgia. Also, he identified State’s Exhibit No. 1 as the shotgun found at Herb’s Pawn Shop and State’s Exhibit No. 2 as the rifle found at the Village Pawn Shop. According to Harbert, these items were taken to the police station and locked in the evidence room until the day of the trial when they were brought into the courtroom.

William Feinberg, owner and operator of the Village Pawn Shop in Columbus, Georgia, identified State’s Exhibit No. 4, as the original “pawn ticket” issued to Chester L. Whitley, Jr., the appellant. Feinberg testified that the “pawn ticket” was kept as a regular part of his business and that it was a permanent record in the store.

According to Feinberg, the “pawn ticket” showed that a twenty-two caliber Glenfield rifle, Model 60, bearing the serial number 70178607, had been “taken in pawn.” Also, the “pawn ticket” indicated the date of birth, color of eyes, weight and height of person pawning the gun and the date of the pledge. On the reverse side of the ticket there were three fingerprints, a signature of the person making the pledge, and the driver’s license number.

During the trial, Feinberg identified State’s Exhibit No. 2, a rifle with a “pawn ticket” numbered 945 and bearing the name of “Whitley.” Feinberg said that the amount of the loan was twenty dollars, to be paid on September 13, 1978.

Irvin Rosenberg, Jr., owner and operator of Herb’s Pawn Shop in Columbus, Georgia, identified State’s Exhibit No. 3 as “a pawn ticket” from his store which was prepared under his supervision. The “pawn ticket” was kept in the usual course of business as a permanent record at his place of business.

Rosenberg’s testimony concerning what the “pawn ticket” contained or bore on each side was substantially the same as the testimony of Feinberg. Rosenberg testified that State’s Exhibit No. 1, the shotgun, bore the same serial number as that on the pawn ticket marked “State’s Exhibit No. 3.”

Detective Harbert, recalled during the trial, testified that State’s Exhibit No. 3, the “pawn ticket” which he identified, bore the name of the appellant, Chester L. Whitley, Jr. Also he said that the ticket bore the driver’s license number of the appellant.

Detective Clifton Smith of the Phenix City Police Department testified that he made the original report of the burglary at the Akins’ residence on September 14, 1978. After his arrival, he determined that the burglar’s point of entry into the Akins' residence was through a kitchen window. His attempt to lift fingerprints was not successful. Also, the items described by Smith as those taken were precisely the same items described in the testimonies of Mr. and Mrs. Akins.

Ronald Menz, dispatcher with the Russell County Sheriff’s Department, identified the fingerprint card bearing the prints of the appellant. Menz testified thát he had placed the appellant’s prints on the card and that the card bore his signature and that of the appellant.

John Estes, on September 9, 1978, was a detective sergeant with the Phenix City Police Department. Estes testified that he, too, prepared a fingerprint card bearing the prints of the appellant, his signature, and the signature of Office Estes.

Lamar Miller was employed by the Alabama Department of Forensic Sciences as an examiner of documents. After his qualifications were stipulated to by the defense, Miller stated that he had compared State’s Exhibit Numbers 4, 5 and 6, and had found that the signatures on the two fingerprint cards and the pawn ticket were all written by the same person.

Tellis D. Hudson, a criminalist with the Alabama Department of Forensic Sciences, had examined in excess of 100,000 fingerprints during his seven years with the department. He testified that he had compared the fingerprints on State’s Exhibit No. 3 with the fingerprints on State’s Exhibit Numbers 5 and 6, had later, compared the fingerprints on the back of State Exhibit No. 4 with the prints on State’s Exhibit Numbers 5 and 6, and had found that all fingerprints on the different exhibits belonged to the same person.

At the conclusion of Hudson’s testimony, the State rested its case, and the appellant moved to exclude the State’s evidence. The appellant argued that the State failed to make a prima facie case because it did not show a breaking or entering, nor did it show the ownership of the premises.

The motion was overruled, and the defendant rested his case without calling any witnesses or presenting any evidence.

I

The appellant contends that the trial court committed reversible error by denying his motion to quash the indictment. He asserts that, because he was not brought to trial within the 180 days of his request for a disposition of the charges against him, the criminal complaint should have been dismissed with prejudice. Pursuant to Article III of the Alabama Code, § 15-9-81 (Supp. 1979).

Article 111(a) reads as follows:

“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, and the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decision of the state parole agency relating to the prisoner.” [Emphasis added].

The record clearly shows that the appellant’s original motion for a speedy trial went to the sheriff’s office, not to the “prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction.” In the present case, the “prosecuting officer” was the district attorney of Russell County. The district attorney’s office was not informed of the motion until May 25, 1979, and, at that time, the office began the steps necessary to return the appellant for trial.

The appellant has not made a proper request for disposition under the uniform mandatory disposition Detainer Act. The precise question of whether the appellant gave proper notice to the proper authorities has not been addressed by the courts in Alabama; however, it has been answered in other jurisdictions. The Tennessee Court of Criminal Appeals in State v. Grizzell, 584 S.W.2d 678, stated:

“[T]he requirement that written notice of the inmate’s request for final disposition be sent by registered or certified mail is more than a mere technicality.”

The court, in Grizzell, also said:

“[I]t is also obvious that if the notice requirements of the Interstate Compact on Detainers are relaxed to the extent sought here, an inmate could forego his rights under the Interstate Compact, wait more than 180 days, and then produce a bogus motion or other written ‘notice’ of his desire for speedy disposition, swearing that it had been mailed (and returned to him) in substantial compliance with the provisions of the Interstate Compact, and thus prevent prosecution altogether. As one court has noted, the failure of an inmate to comply with statutory procedure, after being notified of the requirements of the statute, may lead to a reasonable inference that the inmate is ‘ambushing’ the authorities involved. Ekis v. Darr, 217 Kan. 817, 539 P.2d 16, 22 (1975).”

See People v. Dally, 46 Ill.App.3d 195, 4 Ill.Dec. 756, 360 N.E.2d 1131; State v. Brockington, 89 N.J.Super. 423, 215 A.2d 362.

In People v. Jacobs, Colo., 596 P.2d 1187, the Colorado Supreme Court said:

“Compliance with the requirements of the Interstate Agreement on Detainers is essential. — Since the defendant did not make his April 1977 request for disposition in compliance with those requirements, his request was insufficient to trigger the state’s obligation under Article III.”

Also, the Court of Special Appeals of Maryland, in Isaacs v. State, 31 Md.App. 604, 358 A.2d 273, stated that the 180 day time period in which an accused out of state prisoner must be tried does not begin to run until after there has been a full compliance with the Interstate Detainer Act. In the case of McBride v. U. S., 393 A.2d 123, the Court of Appeals of the District of Columbia, after considering this question, held that the defendant was obliged to direct his written request to the prosecuting jurisdiction in order to trigger the 180 day speedy trial period. See Young v. Mabry (8th Cir.) 596 F.2d 339.

Based on the facts presented and the legal principles found in the cases cited above, we are of the opinion that there must be strict compliance by the prisoner with the requirements of Article III, otherwise, a conniving prisoner could finagle procedures to frustrate efforts of the prosecution to give the prisoner the benefit of the Interstate Compact on Detainers. The appellant’s contention that his conviction was vitiated by failure of the State to comply with the procedures of the Act is not well founded. It is our judgment that the appellant’s request for disposition was insufficient to trigger the State’s obligation under Article III.

II

Appellant insists that he was denied a speedy trial in violation of his constitutional right and that the trial court committed reversible error when it did not grant his motion to quash the indictment.

No constitutional basis exists for determining what amount of delay deprives a prisoner of his constitutional right to a speedy trial. This determination must be made on a case by case basis. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. However, the United States Supreme Court in Barker v. Wingo, supra, did set out factors which should be considered in determining whether deprivation of this constitutional right has occurred. Those factors have been set out in many cases, but can be found in Prince v. State, Ala.Cr.App,, 354 So.2d 1186; Kircheis v. State, 56 Ala.App. 526, 323 So.2d 412; Housel v. State, 3 Div. 189, Ala.Cr.App.Ms. (February 1977); Corn v. State, Ala.Cr.App., 387 So.2d 275 (1980).

Those factors are: (1) the length of delay, (2) the assertion by the defendant of his right, (3) the reason for the delay, and, (4)prejudice to the defendant.

Approximately eleven months elapsed between December 6, 1978, when the first request by Lamar Murphy, Sheriff of Russell County, was made and November 14, 1979, the date of the trial. This delay cannot be concluded to be “patently offensive” and unjustified. Prince v. State, supra. Also, this delay was not sufficient in and of itself to justify a finding that appellant had been deprived of his right to a speedy trial. There have been cases, such as Barker v. Wingo, supra, and Hopson v. State, Ala.Cr.App., 352 So.2d 500, both involving a delay of five years which, alone, was not sufficient.

Regarding the appellant’s assertion of his rights, we find that the district attorney’s office did not receive the appellant’s request for disposition until May 15, 1979. Afterwards, that office made a diligent effort to return the appellant and did in fact return him on September 27, 1979. Under these circumstances, we find that the point when the appellant began to assert his rights was in fact the date that the district attorney’s office received the appellant’s letter, dated May 25, 1979. United States v. Palmer (5th Cir.), 537 F.2d 1287.

As to the “reason for the delay,” we find that once the appellant’s letter was received by the district attorney’s office, the authorities took “affirmative action” for the return of the appellant. After arraignment on October 12,1979, the appellant was tried on November 14, 1979.

Under these circumstances, we believe that the State of Alabama was diligent in its efforts to secure the presence of the accused. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26. The facts outlined in this case do not demonstrate any “presumptively prejudical” delay, which is necessary to trigger an inquiry into the speedy trial question. United States v. Palmer (5th Cir.), 537 F.2d 1287.

If any delay occurred, it was occasioned because the appellant failed to comply with the requirements of Article III of the Uniform Detainer Act. Therefore, it is our judgment that the trial court’s denial of appellant’s motion to quash the indictment on the grounds that the appellant was denied a speedy trial was not error.

We have searched the record and have found no error prejudicial to the appellant. The judgment of conviction by the Russell Circuit Court is, therefore, affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte Chester L. WHITLEY, Jr. (Re: Chester L. WHITLEY, Jr. v. STATE of Alabama).
    79-905.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge. DeCARLO, Judge,

text:
    William Wayne HYDE v. The CITY OF BIRMINGHAM.
    6 Div. 238.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied June 30, 1980.
    J. Louis Wilkinson, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
   TYSON, Judge.

William Wayne Hyde was tried and convicted in Birmingham Municipal Court based upon a complaint charging him with “unlawfully [disturbing] the peace of others by having a firearm or firearms in his possession in a public place or within public view under circumstances where the natural tendency of such possession would be to provoke a breach of the peace, contrary to and in violation of Ordinance 79-71 of the General Code of the City of Birmingham, Alabama, 1964, as amended.”

Appellant appealed the conviction to the Jefferson County Circuit Court where he obtained a jury trial. The jury found him “guilty as charged in the complaint” and fixed his punishment at a fine of one hundred dollars. The trial court set sentence in accordance with the verdict of the jury and the costs of court were also assessed against the appellant. Additionally, the appellant was sentenced to a total of twenty-seven days hard labor for the fine and the costs of the case.

The facts giving rise to the instant charge, as established at trial, are as follows:

In the summer of 1979, a young black woman, Bonita Carter, was shot and killed by a white police officer outside one of two Jerry’s convenience stores located in the Kingston area of Birmingham, Alabama. Following that incident, racial tension was acute in the city and .open acts of violence and racial conflict occurred in the area near the two Jerry’s convenience stores. The two stores were located within five blocks of each other. The Bonita Carter shooting incident and the racial disturbances that followed were widely reported by various news media.

On July 6, 1979, at approximately 3:00 p. m., Officers John A. Gjellum and Chris Moore of the Birmingham Police Department received a radio dispatch to proceed to the area near one of the Jerry’s convenience stores which had been the scene of several disturbances. Upon arriving at that location, the two officers observed a black pickup truck, which had been described in the radio dispatch, located in the parking lot of the convenience store. The truck immediately crossed the street to the Holiday Inn parking lot where another police car, manned by Officers Daniel Phillips and Michael C. Shores, was parked. Three white males were in the truck and the appellant was driving.

Officer Phillips approached the appellant and asked him to leave the area because they were expecting trouble. About that time Officers Gjellum and Moore drove into the parking lot, got out of their car, and approached the pickup truck. Officer Gjel-lum approached the driver’s side of the truck and Officer Moore went to the passenger side. Both officers testified that from the outside of the truck they could clearly see a shotgun propped up against the seat of the truck between the appellant and the middle passenger. Officer Phillips testified that he was standing behind the driver’s door at that time and did not see a gun.

Officer Gjellum asked appellant to step out of the truck and then removed therefrom three pistols and the shotgun. According to Gjellum the appellant stated at that time that the guns belonged to him. Neither of the other passengers claimed ownership of any of the guns.

Appellant was not charged with unlawful possession of the pistols because he had a valid permit; he was arrested, however, on the instant charge.

Appellant testified in his own behalf that he was in the vicinity of Jerry’s convenience store on the day in question in order to pick up a friend and to go to target practice. Appellant disclaimed ownership of the shotgun and insisted that this friend, Wayne Sharp, brought the gun out of his house when he was picked up. Appellant explained that he stopped at Jerry’s convenience store to get some ice, grapefruit juice and cigarettes and then drove across the street to the Holiday Inn parking lot to speak to a police officer he mistakenly thought he recognized.

He also stated on cross-examination that he was aware of the shooting which had taken place two weeks earlier and that the area around the Jerry’s convenience stores had been the scene of late of violence and unrest.

I

On appeal appellant contends that Ordinance 79--71, General City Code of Birmingham, 1964, as amended, violates Article I, Section 26 of the Alabama Constitution of 1901.

Article I, Section 26, of the Alabama Constitution of 1901 provides as follows: “That every citizen has a right to bear arms in defense of himself and the state.”

It is well-settled and “universally recognized,” however, that this right of a citizen to bear arms in defense of himself and the state is subject to reasonable regulation under the police powers of the state. Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341, cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306; Jackson v. State, 37 Ala.App. 335, 68 So.2d 850 (1953).

• It is likewise well-settled that the State of Alabama has conferred the full measure of its police power on the City of Birmingham to protect the public’s safety, health, and welfare. § 11-45-1, Code of Alabama 1975; Holloway v. City of Birmingham, 55 Ala.App. 568, 317 So.2d 535 (1975).

The issue before this court on this appeal is whether the ordinance in question is a reasonable and valid exercise of the city’s police powers.

The ordinance in question, omitting formal parts, reads as follows:

“ORDINANCE NO. 79-71
“AN ORDINANCE TO MAKE UNLAWFUL THE POSSESSION OF A FIREARM IN A PUBLIC PLACE OR WITHIN PUBLIC VIEW UNDER CIRCUMSTANCES TENDING TO PROVOKE A BREACH OF THE PEACE.
“BE IT ORDAINED by the Council of the City of Birmingham as follows:
“Section 1. Definitions.
“For the purpose of this ordinance the following term shall have the following meaning:
“(a) Firearm : Any instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it and which has a barrel twelve inches or more in length.
“Section 2. Unlawful To Disturb The Peace Of Others By Possession Of Firearm In Public Place Or Within Public View Under Circumstances Where Possession Would Tend To Provoke Breach Of Peace.
“No person shall disturb the peace of others by having a firearm in his possession in a public place or within public view under circumstances where the natural tendency of such possession would be to provoke a breach of the peace.”

In treating a similar question, former Chief Justice Collier observed in State v. Reid, 1 Ala. 612 (1840), that:

“. .. The constitution of a State, is an instrument of restraint and limitation upon powers already plenary, so far as it respects the functions of government and the objects of legislation. We are then, to regard the provision in question, as a guaranty to the people of the right to bear arms, ‘in defence of themselves and the State,’ and an inhibition upon the Legislature to divest it by any enactment. “. . . The constitution in declaring that, ‘Every citizen has the right to bear arms in defence of himself and the State,’ has neither expressly nor by implication, denied to the Legislature, the right to enact laws in regard to the manner in which arms shall be borne. The right guaranteed to the citizen, is not to bear arms upon all occasions and in all places, but merely ‘in defence of himself and the State.’ The terms in which this provision is phrased seem to us, necessarily to leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals. .. .
“We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional. But a law which is intended merely to promote personal security, and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the constitution.” Id. at 616-617.

In the present case the ordinance is clearly intended to promote personal security and to put down lawless aggression and violence and to that end forbids the public possession of certain weapons “under circumstances where the natural tendency of such possession would be to provoke a breach of the peace.” This ordinance therefore is a valid exercise of this police power.

As stated in Abernathy v. State, 42 Ala.App. 149, 155 So.2d 586 (1962): “An act which would be lawful in some circumstances may amount to a breach of the peace if done under other circumstances.”

The undisputed facts in this case are that the area in which appellant was arrested had in recent days been the scene of racial unrest and violence. The “natural tendency” of the appellant’s open display of the shotgun in question would be to not only provoke, but to invite a breach of the peace. We are of the opinion that the City of Birmingham does not run afoul of this state’s constitution by its adoption of this ordinance which seeks to prevent lawless armed confrontations.

There is no error shown by this record. This cause is therefore due to be and is hereby

AFFIRMED.

HARRIS, P. J., and BOWEN, J., concur.

DeCARLO and BOOKOUT, JJ., dissent with opinion.

DeCARLO, Judge,

dissents.

Article I, § 26 of the Constitution of Alabama of 1901, declares: “That every citizen has a right to bear arms in defense of himself and the state.”

In the foregoing matter, the City of Birmingham justifies, through exercise of its police power, an infringement on this right to bear arms. The particular ordinance involved deprives citizens of bearing arms in a racially disturbed area because, from the City’s point of view, such bearing of arms would incite others to riot. This argument, I suggest, has no more merit than the argument that short skirts on women incite would-be attackers to rape.

This court in Morris v. State, Ala.Cr.App., 342 So.2d 417, recognized that, under T. 14, § 175, Code of Alabama 1940, Recompiled 1958, a person had a right, with a permit, to carry a pistol in a vehicle. The court also said the statute did not prohibit the carrying of an unconcealed pistol. The court commented that a person had a right to carry a pistol unconcealed in a “scabbard or holster, worn on the side and not covered.”

It appears that the Birmingham City Ordinance would not permit a person to go into an area with a “long gun” but would allow a person to enter the same area with a pistol or a revolver. Without question, the long gun carried in a truck would not incite a person to riot anymore than would a pistol or a revolver carried on a person’s hip. The City’s Ordinance is vague, unconstitutional, and an unwarranted infringement on the right of citizens to bear arms.

For the foregoing reasons, I therefore dissent.

BOOKOUT, J., joins in the above.


author: PER CURIAM.

text:
    Ex Parte William Wayne HYDE. (Re William Wayne HYDE v. The CITY OF BIRMINGHAM).
    79-771.
    Supreme Court of Alabama.
    Feb. 6, 1981.
   PER CURIAM.

Writ denied. No opinion.

MADDOX, JONES, ALMON, SHORES and ADAMS, JJ., concur.

TORBERT, C. J., and FAULKNER, EM-BRY and BEATTY, JJ., dissent.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James T. JORDAN v. STATE.
    7 Div. 715.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      Roger Killian, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., Elizabeth Evans Campbell, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of grand larceny of a truck. The court fixed his punishment at imprisonment for five years and sentenced him accordingly.

A short summary of the evidence seems sufficient for a discussion and consideration of the contention of appellant that there was “no substantial evidence of a felonious taking.”

The owner of the truck, Charles Houston, was the jailer of the DeKalb County Jail. Defendant and two other persons in custody in the jail, while in the process of escaping therefrom, locked Mr. Houston in a jail cell. They told him to empty his pockets. He complied by emptying his pockets of a billfold, his keys including the key to his truck, and some small change, which he placed where they told him to place them. While he was locked in the cell between fifteen and twenty minutes, the three prisoners escaped. Just as soon as he was released from the cell by the radio operator at the jail, Mr. Houston “checked” to see if the truck “was outside.” His testimony continued as follows:

“Q. What was the value of that truck at the time it was taken?
“A. $1,000.00.
“Q. When did you next see the truck? “A. On Wednesday after the escape on Sunday.
“Q. Okay, and where was it when you saw it?
“A. Parked back here in the parking lot.”

The evidence is not clear as to where defendant and the other escapees were captured, but defendant was captured and returned to jail within two or three days after the escape. The chief deputy sheriff asked him to show him where the truck was. Defendant went with the chief deputy sheriff on highway 35 East “near the Cherokee County line,” then on a side road for several miles, and showed him the truck in the woods. The truck was then returned to the parking lot of the jail. There was testimony that some time after defendant was captured and returned to jail, he told Mr. Houston “Well, we figured we would be good enough to leave your truck, and not destroy it.”

There was some undesirable vagueness about some of the testimony, but it was sufficient to constitute substantial evidence that defendant had participated principally, or as an aider and abettor, in the larceny of the truck. That there was no eyewitness testimony that defendant was ever in the truck does not force the conclusion that he did not participate in the taking of it from the parking lot at the jail and the asportation of it to woods near a side road where it was located. The loss of property by a felonious taking may be proved by facts and circumstances as well as by direct and positive evidence. If the evidence affords a reasonable inference that larceny has been committed and that the accused was a participant in the larceny, it is sufficient for a submission of the issue to the jury, which in turn determines whether the evidence is sufficient to prove defendant’s guilt beyond a reasonable doubt. Copeland v. State, 57 Ala.App. 482, 329 So.2d 171; Woods v. State, 57 Ala.App. 1, 325 So.2d 517, cert. denied, 295 Ala. 430, 325 So.2d 519.

In arguing the question of the sufficiency of the evidence, appellant emphasizes the short period of time between the taking of the truck and its return to the parking lot of the jail (approximately three days). A case similar in this respect, and in other respects, is Nolly v. State, 35 Ala.App. 79, 43 So.2d 841 (1950), in which defendant while confined to a jail overpowered an officer, took the officer’s gun, and “broke and ran out of the hall.” Defendant did not deny taking the pistol and keeping it two or three days and then delivering it to officers. The court said his claim that he was due the affirmative charge in his favor was “based primarily on the position that the essential element of intent or ‘animus furandi’ is not established by the evidence and that the inferences therefrom are of not sufficient potency.” The court held, as we do here, that the “scant delineation of the evidence which we have set out will serve to illustrate our view that the appellant was not due the general affirmative charge.”

Appellant seeks to predicate error upon the refusal of the following written charge:

“If you believe the Defendant took the vehicle with the intent to escape and to use it temporarily for that purpose, that is not a felony, and there would be no felonious intent and therefore, you could not convict.”

■Whether the particular offense of “escape” comes within the terms of the Code section making it a felony on the one hand, or within the language of the Code section making it a misdemeanor on the other hand, is irrelevant to the question whether one has the felonious intent, the “animus furandi,” the intent to commit a larceny, within the process of making the escape. The charge was properly refused.

Another insistence of appellant is somewhat similar to the one just discussed. He complains that the court did not allow defendant to show that he had been convicted for a misdemeanor of “escape,” under Code of Alabama 1975, § 13-5-68. The particular section applies to all escapes or attempts to escape that are not covered by other sections of the Code. Bradford v. State, 146 Ala. 150, 41 So. 471 (1906). The proposed evidence would have been irrelevant and immaterial to any issue in the instant case.

The court refused the following charge requested by defendant:

“Ladies and Gentlemen, I charge you that the Defendant has a right to testify in his own behalf or he has a right not to testify. The fact that he has not taken the stand is not a fact which should be considered or could be considered as evidence of his guilt.”

The defendant did not take the stand. The trial court did not charge the jury on the subject of his failure to do so. The charge should have been given. Thomas v. State, 139 Ala. 80, 84, 36 So. 734, 735 (1903); Salvadori v. State, 33 Ala.App. 372, 33 So.2d 752 (1948); Swindle v. State, 50 Ala.App. 403, 279 So.2d 574 (1973); Perry v. State, Ala., 368 So.2d 310 (1979); White v. State, Ala.Cr.App., 382 So.2d 1186 (1980). In each of the cases cited the trial court was reversed for its refusal of a charge similar to the one now under consideration, though not word for word the same.

We do not agree with appellee’s response to the effect that the charge is “elliptical.” In illustrating his claim that the charge is elliptical, appellee says that it “does not refer to ‘defendant’s’ not taking the stand and ‘defendant’s’ guilt, but to ‘his’ not taking the stand and ‘his’ guilt.” The substitution of the personal pronoun for its antecedent does not constitute an ellipsis. Harris v. State, Ala.Cr.App., 358 So.2d 482 (1978), cert. denied, Ala., 358 So.2d 487 is clearly distinguishable. In that case, it was held that there was an ellipsis in each of two charges, in that there was an omission of a noun as an antecedent of the personal pronoun “his.” In the charge in the instant ■ case, there is no omission of a noun as an antecedent of the personal pronoun “his.” It is clear that the personal pronoun “he” and the personal pronoun “his” are referable to the “Defendant,” the only person designated in the charge.

Appellee seeks to justify the refusal of the charge on the additional ground that it contains a “crossed-out” word. The reference is to the lining out of the word “the.” The charge is in pen and ink handwriting. The lining out of the definite article is also by pen and ink. Notwithstanding the lining out, the word is clearly legible. We see no reasonable basis for concluding that the lining out of the word caused it to have any misleading tendencies.

The charge was on the subject of a highly important right of a defendant, which was not otherwise mentioned. Its refusal constitutes error prejudicial to defendant, and the judgment should be reversed and the cause remanded for that reason.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under § 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 reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: James T. JORDAN v. STATE of Alabama).
    79-851.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Curtis Ray SHEFFIELD v. STATE.
    8 Div. 340.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      Donald E. Holt and Joe M. Patterson, Jr., of Holt, McKenzie, Holt & Patterson, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of Robert C. Tate in a killing connected with an independent trucker’s strike. A jury convicted the defendant of second degree murder and fixed sentence at thirty years’ imprisonment.

I

Although the evidence is wholly circumstantial, it is sufficient to support the jury’s finding that the defendant was guilty beyond any reasonable doubt.

The homicide occurred during the early morning of June 20, 1979, on Highway 72 near Tuscumbia. Shortly after midnight, a small number of men gathered outside the defendant’s trailer. They were “carrying on” and drinking beer. Several of the young men present carried some old truck parts to the edge of the highway and attempted to throw them at passing trucks. Witnesses for the State testified that the defendant made statements that the striking truckers were not doing enough to help themselves, that “they were going to need some help from just plain country folk” and that “the [independent] truck drivers weren’t doing enough to stop the trucks from — that it was going to take someone else to show them that we really mean business.” One witness stated that the defendant said that “he had something in the house that would shoot a radiator out or something.”

After the defendant made these statements, he entered his trailer and returned with a lever-action rifle and a pistol. There was general talk of “going up and shooting some trailers and tires.” One witness testified that the defendant was talking about shooting in fuel tanks. Several witnesses testified that the defendant cautioned to be sure and not hurt anybody.

Eyewitness testimony proved that the defendant and three other men went to the edge of a field near the highway. The defendant, with the lever-action rifle, and Roger Fuller, with a pistol, actually fired at several passing trucks. The defendant fired the last shot and then “it sounded like [a truck] was pulling off the side of the road.” There was evidence that one truck other than the deceased’s was struck by bullets — while traveling in the same general area of Highway 72 and very close to the time when the deceased must have been shot according to the State’s evidence.

The State proved that Robert Tate died from a single 30.30 caliber bullet fired from a 30.30 caliber Winchester lever-action rifle. The bullet entered the cab of Tate’s truck right under the driver’s windshield wiper and tore into his left leg. The severing of an artery and major vein caused massive bleeding which resulted in Mr. Tate’s death.

In reviewing a conviction based on circumstantial evidence, this Court must view that evidence in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (1979). In stating the facts in this opinion, we have omitted some facts which would tend to mitigate the defendant’s guilt; yet we have also omitted other facts which tend to implicate him. We have only attempted in our brief sketch of the State’s evidence to show that there exists a reasonable theory from which the jury could have concluded that the defendant was guilty. Cumbo, 368 So.2d at 875. After carefully reviewing the evidence, we can- only conclude that the jury’s verdict is authorized and supported by the evidence. In the weight to be given evidence “courts and juries must use common sense, common reason, and common observation of the usual acts of men and women under given circumstances.” Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926).

II

The defendant argues that the trial court erred when it refused to permit him to impeach the testimony of Roy Dean Morris by showing, contrary to Morris’ testimony, that Morris had seen or owned a certain stolen pistol.

Outside of the jury’s presence, the defendant proved that in July of 1976 a .22 caliber pistol and a 30.30 caliber lever-action Winchester rifle were stolen from the residence of Sonny Barfield. This burglary was never solved. Ray Shikle, who originally traded the pistol to Barfield, testified that in November of 1976, about four months after the burglary, he saw the same pistol in the possession of Roy Morris. Under cross examination Morris denied any knowledge of the stolen pistol.

Whether Morris was ever in possession of the particular stolen pistol is of no probative value in determining the guilt or innocence of the defendant. It is not even contended or alleged that the stolen pistol or rifle was in any way connected with Mr. Tate’s death. The defendant sought to prove that Morris was in possession of the stolen pistol in November of 1976. The murder occurred in June of 1979 but there is no contention that Morris still had the pistol. Considering all the circumstances, the possession of the pistol is so remote in time from the crime that its relevance and materiality rest in conjecture and speculation. White v. State, 380 So.2d 348, 350 (Ala.Cr.App.1980).

Refusing to allow a defendant to impeach a witness on an immaterial matter is not error. Johnson v. State, 365 So.2d 123 (Ala.Cr.App.), cert. denied, Ex parte Johnson, 365 So.2d 130 (Ala.1978). Eliciting immaterial testimony from a witness and then calling another witness to dispute the immaterial matter is improper impeachment. Weeks v. State, 346 So.2d 1181 (Ala.Cr.App.1977); Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516, cert. denied, 291 Ala. 628, 285 So.2d 525 (1973); Englerth v. State, 43 Ala.App. 663, 199 So.2d 678, cert. denied, 281 Ala. 720, 199 So.2d 682 (1967); C. Gamble, McElroy’s Alabama Evidence, § 156.01 et seq. (3rd ed. 1977). For these reasons, the action of the trial judge was proper.

Ill

The defendant next contends that the trial court committed error in refusing to allow a land surveyor to testify to the results of tests he made concerning the angles and heights a bullet would enter a truck from an area where footprints were discovered near Highway 72 where the deceased’s truck left the road.

The defendant had a land surveyor go to the area of the crime, set his transit at three different positions and measure the path, angle and distance a bullet fired from each of those positions would travel and strike a truck traveling on the highway. The trial court allowed the testimony on the surveyor’s tests and calculations at two positions at and near an “Army” billboard or sign near the highway. There was testimony that the defendant shot at the trucks in a location immediately next to this sign. This was the first position tested. Near this same sign, two 30.30 caliber rifle shells were found. This was the second position tested. The third position was in a ditch located on a bank of Highway 72 in an area where some footprints had been found. The significance, if any, of these prints was never established and there was no evidence to show that any shot was ever fired from this position.

Using the figures contained in a report of the state toxicologist, the surveyor concluded that bullets fired from each of the first two positions would not have entered the truck within the range of maximum and minimum angles stated in the report. However, the surveyor stated that a shot fired from the third position would have been within estimations of the report.

The State objected to the admission of the results of the calculations from the third position because it was on a hypothesis “without any factual basis.” The trial judge sustained this objection finding that “the question^] asked are based on facts not in evidence in this case.”

A properly qualified expert may testify to the trajectory or the direction from which a bullet was fired, Ivey v. State, 369 So.2d 1276, 1280 (Ala.Cr.App.), cert. denied, 369 So.2d 1281 (Ala.1979). While the State did not object to his qualifications, the surveyor was not qualified as a ballistics expert or even as one competent to testify to the trajectory of a firearm projectile. He was not initially qualified to any degree on the study of the dynamics and flight characteristics of projectiles. He readily admitted that he never observed the truck which the bullet struck. His findings were based on the opinions and findings of the state toxicologist which by the toxicologist’s own admissions were mere approximations and speculations.

Since the surveyor did not have firsthand knowledge of the data upon which his opinions were sought, that data had to be specified to him in a hypothetical question. McElroy, § 130.01. The rule is that a hypothetical question asked of an expert cannot be based upon facts which are not in evidence. McElroy, supra.

“[ A]n expert may give an opinion upon relevant matters under inquiry and he may base that opinion solely upon a hypothetical question without any personal knowledge of the matter inquired about. The hypothetical question should properly embrace only the facts in evidence and not certain matters as to which there is no evidence tending to support it. Rational inferences that may be drawn from testimony, as well as the positive and direct testimony itself, may form the basis for the question. Where the expert is not acquainted with the facts, which are in dispute, he may not express an opinion, but may be examined hypothetically." White v. State, 294 Ala. 265, 272, 314 So.2d 857 (1975).

However, even an expert may not testify as to the relative positions of the parties before a shot is fired. White, 294 Ala. at 272, 314 So.2d 857; Ivey, 369 So.2d at 1280.

Since there was no evidence that any shot was fired from the third location, the surveyor’s testimony on this position was not based on facts in evidence. See Sherrill v. State, 138 Ala. 3, 35 So. 129 (1902). Only speculation and conjecture support the assumption that the fatal bullet was fired from the third location. Consequently, the action of the trial court in refusing to allow his testimony on this matter was proper.

Moreover, we note that the defendant submitted evidence, which, if believed, tended to prove that the fatal shot was not fired from either location the State’s evidence supported. Having proved where the shot was not fired from, the defense could logically argue that it must have come from some other position.

IV

The question as to the validity of a search is a legal question for the trial court to determine on evidence heard in camera. Crowden v. State, 55 Ala.App. 325, 330, 315 So.2d 122, cert. denied, 294 Ala. 756, 315 So.2d 128 (1975). Once the State proved the legality of the search and seizure before the trial judge, it was not necessary to present that same predicate to the jury.

“Where the admissibility of the evidence depends on the legality of its seizure or other manner of procurement, the question whether it was legally obtained is ordinarily for the court. Thus it is generally for the court to say whether there was probable cause for the issuance of the search warrant under which the evidence was seized, whether the warrant and affidavit were valid, whether the premises searched were the premises described in the warrant, whether accused was lawfully arrested so as to render admissible evidence obtained as a result of the arrest, whether there was probable cause for an arrest without warrant or a search without warrant, whether consent to a search without a warrant was given, and if given whether it was lawful, or whether a search without warrant was unreasonable or illegal.
“Evidence offered in support of motions for the return of evidence and suppression of evidence need not be submitted to the jury since such motions are for the consideration of the court alone; ...” 23A C.J.S. Criminal Law § 1134b (1961).

The holding of Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976), that the State must prove the “Miranda” and “voluntariness” predicates before the jury is not analogous.

In addition to answering every question raised on appeal, we have searched the record for error and found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: ADAMS, Justice.

text:
    Ex parte Curtis Ray SHEFFIELD. (Re: Curtis Ray SHEFFIELD v. STATE of Alabama).
    80-33.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


text:
    James Hamby WEBB v. STATE.
    8 Div. 370.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.
    Donald R. White, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant’s initial conviction for second degree murder arising out of a vehicular homicide was reversed for the failure of the District Attorney to prove the proper predicate for the admission of the results of the chemical analysis of the defendant’s blood. Webb v. State, 378 So.2d 756 (Ala.Cr.App.), cert. denied, 378 Ala. 758 (Ala.1979).

On this appeal, the defendant again contends that the State did not lay the proper predicate for the admission of the test results. In Webb, 378 So.2d at 757, we set forth the predicate required to be established before the admission of any test result.

“In order to be valid the chemical analysis must have been performed (1) ‘according to methods approved by the state board of health’ and (2) ‘by an individual possessing a valid permit issued by the state board of health for this purpose’. Alabama Code Section 32-5-193(b) 1975. In addition the state must prove (3) that the particular test method used has been approved and adopted by officials of the law enforcement agency which administered the test, Alabama Code Section 32-5-192(a), Estes v. State, 358 So.2d 1050 (Ala.Cr.App.1978), cert. denied, 358 So.2d 1057 (Ala.1978), and (4) where a blood test is involved, that ‘only a physician, registered nurse or duly licensed clinical laboratory technologist or clinical laboratory technician acting at the request of a law-enforcement officer’ withdrew blood for the purpose of determining the alcoholic content therein. Alabama Code Section 32-5 193(c) (1975); Lankford v. Redwing Carriers, Inc., 344 So.2d 515 (Ala.Civ.App.), cert. denied, 344 So.2d 522 (Ala.1977).”

With deliberate and measured caution the State proved each and every element of the predicate.

This was the only issue raised on appeal. We have searched the record for error and found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte James Hamby WEBB. (Re: James Hamby WEBB v. STATE of Alabama).
    80-52.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Wade SEXTON v. STATE.
    6 Div. 144.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.

      Perry Hubbard and J. Foy Guin, III, of Hubbard, Waldrop, Tanner & deGraffen-ried, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

This case involves the embezzlement of a truck engine by the defendant, the former superintendent of a Tuscaloosa County automotive shop. The engine had been removed from a motor vehicle owned by the County because it was defective. A jury found the defendant guilty of the embezzlement of property “less than $25.00 as charged in the indictment.” This form of verdict was proper and responsive to. the indictment. Huffman v. State, 89 Ala. 33, 205 So. 619 (1889). Sentence was nine months’ imprisonment and a fine of five hundred dollars.

The controlling issue is whether or not an “agent, servant or employee” of a county may be prosecuted under Alabama Code 1975, Section 13-3-20, for the embezzlement of property belonging to the county.

Section 13-3-20, under which the defendant was indicted, is a penal statute and must be strictly construed. Spurlock v. State, 37 Ala.App. 390, 69 So.2d 293 (1953). That section provides:

“Any officer, agent, clerk, employee or servant of any incorporated company, association of persons, partnership or municipal corporation, or agent, clerk, employee, servant or apprentice of any private person or persons who embezzles or fraudulently converts to his own use or the use of another, or fraudulently secretes with intent to convert to his own use or the use of another, any money or property which has come into his possession by virtue of his office, agency, employment or apprenticeship shall be punished, on conviction, as if he had stolen it.” (emphasis added)

In Mehaffey v. State, 16 Ala.App. 99, 75 So. 647 (1917), an indictment under the forerunner of Section 13 3- 20 was declared to be fatally defective because it described the defendant as being a “servant, agent, or employee” when the statute, at that time, was limited to any “officer, agent, or clerk.” The indictment was defective because some of the alternative averments in the indictment did not describe a person within the statute. This rendered the indictment “fatally defective”.

The court found this defect to be “of substance” and to involve an element of the offense. Mehaffey, 16 Ala.App. at 100.

“That the defendant is an officer, agent, or clerk of an incorporated company is one of the essential elements of the offense sought to be charged by the indictment.” Collins v. State, 16 Ala.App. 176, 177, 76 So. 413, reversed on other grounds, Ex parte State v. Collins, 200 Ala. 503, 76 So. 445 (1917).

The defendant was an employee of the county. A county is an agency and political subdivision of the state created by law for the more efficient administration of government. Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 54 So.2d 442 (1951). Although it has been said that a county is “in a sense” a municipal corporation, Kumpe v. Bynum, 158 Ala. 311, 48 So. 55 (1908), it is not in fact a municipal corporation. Dunn v. Court of County Revenues of Wilcox County, 85 Ala. 144, 4 So. 661 (1887); Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1939). And although a county has been recognized as being a “quasi corporation” it is not a corporation proper. Housing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 14 So.2d 527 (1943); Marengo County v. Coleman, 55 Ala. 605 (1876). Although recognized by statute as a “body corporate”, Alabama Code 1975, Section 11 — 1 2, a county is a corporation only in a restricted sense. Hamilton v. Jefferson County, 209 Ala. 517, 96 So. 628 (1923); Askew v. Hale County, 54 Ala. 639 (1875). And, although a corporation may be included in statutes which refer to the rights of a “person” or “persons”, Calhoun County v. Brandon, 237 Ala. 537, 187 So. 868 (1939), it has been held not to be an “association”. In re Opinion of the Justices, 266 Ala. 363, 96 So.2d 634 (1957).

There are several long-settled rules of statutory construction which we are bound to follow in our review of this cause.

“A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i. e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). “One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing Young’s Case, 58 Ala. 358 (1877).
“No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.” Clements v. State, 370 So.2d 723, 725 (Ala.1979).

Just as the term “agent” as used in the embezzlement statute must be construed in its popular sense, Spurlock v. State, 37 Ala.App. 390, 69 So.2d 293 (1954), so must the term “association of persons”. While the term “association of persons” has been often and not inaptly employed to describe a corporation, United States v. Munday, 222 U.S. 175, 32 S.Ct. 53, 56 L.Ed. 149 (1911), United States v. Trinidad Coal and Coking Co., 137 U.S. 160, 11 S.Ct. 57, 61, 34 L.Ed. 640 (1890), we have not found any instance where the words have been held to include a “county” within their meaning. See Black’s Law Dictionary, “Association” (5th ed. 1979).

Our review convinces us that the term “association of persons” in its popular sense does not include a “county”. Consequently, it is our conclusion that a county employee may not be prosecuted under Alabama Code 1975, Section 13-3-20, for the embezzlement of property belonging to the county.

The State’s two arguments against the defendant’s contention that he was indicted under the wrong statute were both answered in Collins, supra, and Mehaffey, supra.

Although this issue was initially raised on appeal, it has not been waived.

“The defect being of substance and involving an element of the offense, the indictment will not support a judgment, and it is the duty of this court to notice it, although no objection was taken to the indictment in the trial court. Mehaffey, 16 Ala.App. at 100, 75 So. at 648.

For the reason stated, the judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Wade SEXTON v. STATE of Alabama).
    80-167.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Virgil Copeland PRICE v. STATE.
    6 Div. 280.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.
    William M. Dawson, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for murder in the first degree. Sentence was life imprisonment. The major issue on appeal is the admission of a formal written statement given by the defendant.

I

After shooting Chester Eugene Reeves, the defendant called the police and waited for their arrival. At the scene, Birmingham Police Officer Donald W. Toole advised the defendant of his constitutional rights. Officer Toole testified that the defendant then gave him the following statement:

“Well, Mr. Price [the defendant] told me that the victim came into his bedroom and woke him up and the victim asked him if he had anything to drink; and Mr. Price said, told the victim, ‘Puck you’; and the victim said, ‘Listen, you damn son of a bitch’; and Mr. Price then said, ‘Don’t call my 78 year old mother a bitch’. Mr. Price then said he went and got a .22 rifle and went back into the victim’s bedroom and the victim then said, ‘You are a son of a bitch’; and then the suspect pointed the rifle at the victim’s chest and pulled the trigger.”
* * * * * *
“He said that — He told us that he meant to kill the victim and that the victim told him when the suspect shot him, ‘You got me’, and then tumbled off the bed.”

Officer Toole stated that this was “not everything he said, but it’s a summation of what happened.” Before the jury, Officer Toole testified that he “just mainly asked him what happened, and he started rambling on about what happened.”

Sergeant Albert Wallace arrived at the scene and also obtained a second oral statement from the defendant.

“He told me, T killed him. I’ll tell you what happened.’ ”
******
“He went ahead and told me what happened — that they had an argument and that he shot him.”

After obtaining this confession, Sergeant Wallace took the defendant to City Hall and obtained a written confession. It is the admission of this third statement which is challenged on appeal.

The defendant does not challenge the vol-untariness and admissibility of the first two statements given by the defendant at the scene of the crime although their voluntariness is not admitted or conceded and despite the fact that their admissibility was challenged at trial. Without detailing the circumstances surrounding each of these first two confessions, we find that they were voluntary and properly admitted into evidence. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The written statement the defendant gave to Sergeant Wallace is as follows:

“What is your name? Virgil Price. How .. Virgil Copeland Price was his answer. (Q) How old are you Virgil? (A) 59. (Q) Knowing that you had been informed that you are charged with the death of Chester Reese, I’m going to read your rights to you at this time. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to your lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand each of these rights? (A) Yes, sir. (Q) That I have explained to you? (A) I listened to every word you said. (Q) Okay. Having these rights in mind, do you wish to talk to me now? (A) Yes, sir. And I said O.K. and His answer Are they any way you can get ahold of Pete Norris? (Q) You can call him if you want to. It’s up to you. (A) I don’t know how to call him. (Q) Okay. All right. (A) I would like to call him tonight. (Q) Okay. You want to go ahead and make your statement first and then we’ll look up — in the' phone book? (A) I’ll make my statement. (Q) Okay. (A) I’ve already made it. Question — All right. You’ve made to the officers. His answer was: I shot him on purpose. It’s like I told y’all. Question — Okay. All right. Answer — I meant to kill him. Question — Now you’re not doing what I asked you. I asked you to just answer my questions. (A) Well, I am. (Q) Okay. Do you know a man by the name of Chester Reeves? (A) That’s the one I shot. (Q) Okay. Does he live at your place, 1127 28th Street North? (A) He did. He lived there about a week. (Q) Okay. He came up about a week ago? Answer — He tried to whip me every time he saw me. Question — Okay. Now did you and Chester have difficulties today or this afternoon? (A) Yes, sir. (Q) And how many times have you had problems with him today? (A) He came in there and, uh, do you want me to tell you the whole story? (Q) If you would, just in your own words, tell me the whole story. (A) All right. I’m going to tell you. He came in there and told me, ‘Virgil, you got anything to drink?’ I knew he had a quart of whiskey of his own. I said, ‘Naw, I don’t want anything to drink.’ That’s the truth. And, uh, I’ll give you a drink. I said, Naw I don’t want a drink. I don’t want to drink with you ‘cause you and I don’t get along. And I say, When I rented to you, that I rented to the wrong man, and I don’t aim to drink with you or have no dealings with you. He said, ‘Can I go ahead and use your stove?’ I said, ‘Yep. You just clean up your mess if you make a mess in there, you clean it up’; cause I’m not physically able to clean up after everybody. And this no don’t get no maid service. Well, that made him mad. Well, he went on in there and went to bed — I thought he went to bed. I went on in there and got in my — I sleep in a little old single bed, which I like; I don’t have to, I got a double bed I could sleep in. He came in there and said, ‘You God-damn son of a bitch.’ I said, ‘Now listen here. You’re saying fighting words to me.’ My daddy’d turn over in his grave, and he lived to be 82. My mother lived to be 87. I said, ‘Now, don’t you call me another son of a bitch.’ Well, about the time, I’m telling you the whole truth, and you mark it down there and if it goes to court, I’ll still say that. About the time he got to the kitchen door, going in his room, he said, ‘You’re just a sorry son of a bitch.’ Well, I knowed that he’d done said the wrong damn thing then. If I could use that kind of language. I tried to quit cussing. But I walked over there and picked up my damn rifle — I had it standing just behind the curtain. And when he went in there and started to lay down, I shot the hell out of him. And I’m telling you just like the Lord knows, I meant to kill him, too. I didn’t do it unintentionally or it wasn’t no accident. I meant to kill him. And I’m saying that. I’ll tell the judge I meant to kill him. A fellow can’t call my mother, as good as a mother I had, and lived to be 87 years old and wait on me like she did — He can’t call her no son of a bitch. (Q) What did you shoot him with? (A) A .22 rifle. (Q) Is that the officer you showed the rifle laying on the bed? (A) Right. That’s it. (Q) Okay. Where was Reeves when you shot him? (A) He started to bed, but he never did get to the bed. (Q) Was he sitting down or standing up when you shot him? (A) Well, hell, he was fixing to lay down, I guess. And I told Melvin — Policemen have always told me if somebody’s coming a towards you, shoot them in the right titty. Well, I busted at him. I got a nephew that’s a policeman and I got a good friend that’s a policeman. (Q) Okay. (A) Well, I tried to get aim, but I can’t see good. I got my glasses with me now, and I got the best aim that I could at his right titty, and when I busted him, down, down he went. I thought, well, I done a good job, maybe. (Q) Okay. How many times did you shoot him?- (A) One time. (Q) And it was a .22 rifle — caliber rifle? (A) Right. (Q) Okay. At the time you shot him, was he coming towards you? (A) No, he wasn’t coming toward me. I’ll tell you that. (Q) Did he have any kind of weapon in his hand — knife, gun? (A) Uh, he had a, uh, switch blade knife. (Q) In his hand? (A) Naw. (Q) Where was it? (A) He had it in his pocket. (Q) Okay. So at the time you shot him — (A) I wouldn’t let him get it out of his pocket. (Q) At the time you shot him, he didn’t have anything in his hand? (A) Unk -uh. I ain’t lying to you, I’m telling you the honest truth. (Q) Okay. (A) If I shave my head and put me in the electric chair, I’ll tell the truth. (Q) All right. After you shot him, what did you do? (A) I went back in there and told Archie — He was upstairs. I went up there and told Archie — Went upstairs told Archie, I said ‘Archie, I believe I’ve killed me a man. If I didn’t, I meant to kill him.’ And he said, ‘Well, what are you going to do?’ I said, T don’t know. He fell over the side of the bed and I believe he’s dead — I don’t know.’ (Q) Who called the police — Who called the police tonight? (A) I went up to that nigger’s house, told him to call the law. I went down there to the phone booth, first going to call the Fire Department — See, they good in North Birmingham. They will run down there to anybody. When they went up there to Sadie’s house — Sadie got the law on the phone for me quick as you can — I ain’t calling no law. Well, I run on back down there to the phone booth below the house and I believe that 511, I believe that to the best of my knowledge it was — I said, T got a man up here I think’s dead. I just now shot him. Get the law up here as quick as you can.’ The lady that answered the phone, said ‘All right. They’ll be right there.’ (Q) Okay. (A) Well, about that time, here comes the Fire Department and the law and I said, ‘Well, if he ain’t dead, I meant for him to be dead.’ (Q) Virgil, let me ask you this: This statement you just made, is it a true statement, a voluntary — as to what happened at your house tonight? (A) Every word I’ve told you is the truth. (Q) Okay. (A) Every word. (Q) Since you’ve been in these police officers’ custody, have they mistreated you? (A) No, sir. (Q) Have they abused you? (A) Never. (Q) Have they told you what to say? (A) No, sir. (Q) Have they offered you money or any rewards to get you to make this statement? (A) No, sir. I ain’t never offered no policeman or officer in my life one dime. (Q) Okay. You say. (A) In my whole life. (Q) This is a true and voluntary statement? (A) And one of them’s never offered me anything. (Q) Okay. You haven’t answered my questions. Is this a true and voluntary statement? (A) Right.”

The defendant argues that this statement was involuntary because it was taken after he had exercised his right to counsel.

Before taking the statement, Sergeant Wallace advised the defendant of the “Miranda ” rights. Wallace testified that, at City Hall, the defendant said that he would like to call Pete Norris, a local attorney. Sergeant Wallace gave the defendant a telephone and “told him to go ahead”: “I gave him the phone and told him he could call.” Before the jury, Sergeant Wallace testified that he gave the defendant a telephone and a phone book: “He was sitting at a desk where the phone and phone book was. I slid it over to him.” However, the defendant did not contact Norris. According to Sergeant Wallace:

“A. Once we got to City Hall, he [the defendant] asked me would I call Mr. Norris.
“Q. Pete Norris?
“A. Yeah, said he would like to call Pete Norris, and I told him to go ahead.”
# * # * * #
“A. He said he didn’t know how to dial him. I said, ‘Well, do you want me to dial him?’ He said, ‘No.’ I asked him if he would like to go ahead and finish his statement and call him later, and he said he would do that.”

Later that same morning, the defendant asked Sergeant Wallace to call Mr. Norris. Sergeant Wallace contacted Norris at his office. Wallace testified that he did not call Norris before taking the defendant’s statement because he “would have woke him up at 1:00 in the morning.”

Sergeant Wallace stated that he obtained the statement merely as a “matter of record” since the defendant had already given an oral statement which included “some details and specifics.” Mr. Norris never did see the defendant or furnish him any legal assistance.

Before the jury, Sergeant Wallace testified that the defendant said he wanted to talk to a lawyer but that he went on and took the defendant’s statement “at his suggestion”. Wallace stated that he gave the defendant every opportunity to call: “I told him several times at the scene or anywhere else he could call whoever he wanted to.” The defendant did not attempt to use the phone book. Sergeant Wallace stated that there was no pause between the time the defendant stated that he would like to call Pete Norris and his response, “You want to go ahead and make your statement first and then we’ll look up — in the phone book?”

Sergeant Wallace stated that although the defendant had been drinking he “wasn’t impaired at all by alcohol when this came up.”

The defendant was placed in the city jail on July 20, 1979, and was examined by a physician’s assistant, Phillip Watkins, who testified that the defendant seemed stable: “Other than shaking, or anything like that, there was nothing that I could see that was wrong with him.”

A second physician’s assistant, Ned Whitehead, was called as a defense witness. He stated that on July 20th the defendant was malnourished and his “symptoms were very similar to a person who was about to go into DT’s, delirium tremens, but he had not actually gone into that stage.” At this time, the defendant was rational and “not intoxicated at all.” In Whitehead’s opinion the defendant’s condition was the result of the excessive use of alcohol over a long period of time.

The defendant testified that he had “several drinks that day”: “I guess I took five or six pretty good mixed drinks.” When he was talking to the police officers he was “high” but not drunk. In substance, the defendant stated:

“I told him [Sergeant Wallace] I did know Pete Norris and if I could get to talk to him on the phone, I’d like to have some legal advice for me. I said, ‘I happen to know Mr. Pete because he married a lady that I went to school with, and I do know him and I’d like to get some legal advice from him’, and that passed off at that and I didn’t ask any more. I just let it go at that, so I didn’t insist; I didn’t know that much about court. They read my rights to me, I didn’t know but what I had to answer everything that was asked.”
“I felt like they was officers and I was just another hand and I was supposed to answer what they asked me and I was supposed to talk to them.”

The defendant testified that Sergeant Wallace did not give him a telephone.

On cross examination, the defendant stated that before he shot Mr. Reeves it had been about an hour since he had had anything to drink. This was about midnight and he had had “some to drink after dark, besides that drink.”

The trial judge overruled the motion to suppress the confession finding and being “satisfied that this last statement is merely cumulative of the other statements given on that particular evening by this defendant.” In its ruling, the trial judge referred to the case of “Alice Price versus the State” as raising a similar but not identical point. The only “Alice Price” case we have been able to find is Price v. State, 52 Ala.App. 21, 288 So.2d 803 (1974), which does not involve the issue before us.

In allowing the confession into evidence, the trial judge did not rule that it was voluntary or made in compliance with the standards of Miranda. He merely found that it was cumulative of the two confessions already given. The trial judge, in effect and in fact, applied the standard of an appellate court in determining whether or not an error is harmless. Regardless of whether or not a statement is cumulative of prior statements, it should not be admitted into evidence until it is proven to be voluntary and intelligently given. Miranda, supra.

Miranda mandates that questioning must stop if the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking.” 384 U.S. at 445, 86 S.Ct. at 1612.

“The burden is on the State to establish waiver in every case in which it seeks to introduce a statement taken without the presence of counsel. That burden becomes far more difficult, if not impossible, to sustain when the record shows that a request for counsel was made which was not honored before questioning continued.”
Maglio v. Jago, 580 F.2d 202, 205 (6th Cir. 1978).

From the record it is not clear that the defendant was in fact asserting his right to counsel. From the defendant’s point of view, there would be no advantage to be gained from asserting his right to counsel so late in the game. For this same reason — because the defendant had already confessed — there was no urgency or need for Sergeant Wallace to obtain a written confession.

Reviewing the facts of this case we cannot say that the State met its heavy burden to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Hines v. State, 384 So.2d 1171, 1173 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980). Compare State v. Keesecker, 198 Neb. 426, 253 N.W.2d 169 (1977). The trial judge did not make such a determination and we do not consider the evidence so clear and convincing as to warrant such a finding by this Court. Therefore, the admission of the confession was error.

Finding error, we must next determine whether or not that error prejudiced the defendant. We have previously set out the text of all three statements given by the defendant.

“Where there is one confession by a defendant properly admitted into evidence and there was strong corroborative evidence of the guilt of the defendant, the admission of another confession, even though it should have been excluded upon objection, is harmless error.” Kelley v. State, 366 So.2d 1145, 1150 (Ala.Cr.App.1979) citing Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). The facts and circumstances of each individual case must be examined to determine whether or not the admission of the illegal evidence prejudiced the defendant. Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58, cert. denied, 291 Ala. 786, 286 So.2d 62, cert. denied, 416 U.S. 957, 94 S.Ct. 1972, 40 L.Ed.2d 308 (1974); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973); Myers v. State, 40 Ala.App. 617, 119 So.2d 602 (1960); Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360 (1960). In some cases it may be impossible to avoid the conclusion that a written confession was accorded greater weight by the jury than was the oral one even though the oral confession was identical in all material facts with the written one. People v. Garofolo, 46 N.Y.2d 592, 415 N.Y.S.2d 810, 389 N.E.2d 123 (1979). In others, harmless error may exist even though the objectionable statement conflicts with the defendant’s testimony at trial. People v. Webb, 83 Cal.App.3d 83, 147 Cal.Rptr. 608 (Cal.App.1978). In still other cases, the erroneous admission of a confession may constitute a sufficient basis for a reversal even if the evidence, absent the confession, establishes a prima facie case against the defendant. Chunn v. State, 339 So.2d 1100 (Ala.Cr.App.1976).

After carefully reviewing this record we cannot declare that the error in the admission of the third statement was harmless beyond a-reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Here, “the written statement may well have erased whatever doubt the jury entertained concerning the credibility of the witnesses upon whom the People had to rely to prove the contents of the unwritten one[s].” Garofolo, 415 N.Y.S.2d at 815, 46 N.Y.2d at 603. More importantly, we do not think a jury could read the written statement without being absolutely convinced of the defendant’s guilt of intentional and malicious murder. This statement tends to refute any defense the defendant might have had and may well have erased whatever doubts the jury entertained concerning the issues of self-defense, sudden passion and provocation. This written statement was more than cumulative of the two oral statements. It had the effect of intensifying and magnifying both the substance and effect of the oral statements leaving no doubt of the defendant’s guilt. Under these circumstances its admission was error prejudicial to the defendant.

Although the defendant’s guilt is clear, his criminality is established through his own statements. One of these statements, clearly the most damaging to the defendant, should not have been admitted because the State did not prove that it was voluntarily and intelligently given. For this reason the judgment of the Circuit Court is reversed.

REVERSED AND REMANDED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Virgil Copeland PRICE v. STATE of Alabama).
    80-169.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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