author: BOOKOUT, Judge. BOOKOUT, Judge.

text:
    STATE v. Lula Mae McCURLEY.
    1 Div. 227.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.

      Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellant.
    Richard D. Horne of Hess, Atchison & Horne, Mobile, for appellee.
   BOOKOUT, Judge.

On November 17,1980, the appellee, Lula Mae McCurley, filed a petition for writ of habeas corpus in the Circuit Court of Mobile County. The petition alleges that on September 21, 1978, the appellee had been convicted for selling pentazocine (also known as Talwin), was sentenced to five years’ imprisonment, which sentence was suspended, and appellee was placed on probation for five years. A fine of $5,000.00 and court costs in the amount of $307.70 were also assessed against appellee which she paid.

The habeas corpus petition also alleges that appellee is presently awaiting resen-tencing on a subsequent conviction for possession of controlled substances, and the September 21, 1978, conviction, supra, will be used as a prior conviction (to enhance the punishment) if not set aside. Appellee alleges that such prior conviction is null and void because pentazocine (Talwin) was held to have been added to the controlled substance list in an unconstitutional manner per Ex parte McCurley, Ala., 390 So.2d 25 (1980).

After due return to the writ was made, a hearing was held thereon, and the trial court issued the writ thereby (1) vacating the prior conviction in question and (2) ordering that the fine and court costs be repaid to the appellee. The State has appealed to this court challenging the authority of the trial court to grant the above relief.

I

Generally, the writ of habeas corpus is not available to persons not in custody such as on parole, on bail, or where the sentence is prospective only. Williams v. State, 42 Ala.App. 140, 155 So.2d 322 (1963); Shuttlesworth v. State, 42 Ala.App. 34, 151 So.2d 734 (1962); Magee v. State, 42 Ala.App. 71, 152 So.2d 443 (1963).

However, a writ of habeas corpus may issue against a judgment which is void on its face for want of jurisdiction. State v. Baker, 268 Ala. 410, 108 So.2d 361 (1959); Hable v. State, 41 Ala.App. 398, 132 So.2d 271 (1961); Argo v. State, 41 Ala.App. 347, 133 So.2d 201 (1961). Habeas corpus will lie where the invalidity of the prior court judgment shows on its face some fundamental illegality. Thomas v. State, 40 Ala.App. 697, 122 So.2d 535 (1960). If the invalidity of a judgment does not show on the face of the record proper (the indictment, judgment, etc.), but must be established by parol testimony, habeas corpus will not lie, but instead the common writ of error coram nobis is the remedy. Wiman v. Argo, 308 F.2d 674 (5th Cir. 1962), cert. denied, 371 U.S. 933, 83 S.Ct. 306, 9 L.Ed.2d 270.

In the instant case the prior record proper discloses that the petitioner was convicted for the “Sale of Pentazocine.” The Supreme Court of Alabama has held that pen-tazocine (Talwin) was not properly classified as a controlled substance by the State Board of Health and cannot constitute the basis for a criminal charge. Ex parte McCurley, supra.

No parol testimony was necessary in the instant case to establish the lack of jurisdiction as to the offense in the prior case. The courts of this state take judicial notice of the laws and statutes of the state. Thagard v. Brock, 282 Ala. 262, 210 So.2d 821 (1968). Pentazocine (Talwin) was not a controlled substance, and its possession or sale was therefore not illegal. A charge based on the sale of pentazocine was not an offense and was not a charge which would confer criminal jurisdiction upon the circuit court. Therefore, the prior judgment shows on its face a conviction for conduct which does not constitute a public offense and is thus void and subject to challenge by way of a writ of habeas corpus.

II

We find no authority for the trial court to order the state to repay to the petitioner the fine and court costs paid in the prior case in question. The order of the trial court amounts to a money judgment against the state and in our opinion violates Article I, § 14, Constitution of Alabama 1901.

Cases set out in annotations to Article I, § 14, supra in Vol. I, Code of Ala.1975, are legion to the effect that the state’s sovereign immunity is virtually complete and almost invincible. Sanders Lead Co. v. Levine, 370 F.Supp. 1115 (M.D.Ala.1973); Hutchinson v. Board of Trustees of Univ. Ala., 288 Ala. 20, 256 So.2d 281 (1971). Article I, § 14, supra, even prevents actions against the state to obtain refunds of taxes erroneously paid into the state treasury. Haden v. Lee’s Mobile Homes, Inc., 41 Ala.App. 376, 136 So.2d 912 (1961); Raible Co. v. State Tax Commission, 239 Ala. 41, 194 So. 560 (1939).

As suggested in Hutchinson, supra, the only relief available to persons such as the instant petitioner would be a “relief bill” by the legislature or a claim filed with the State Board of Adjustment per § 41-9-60, et seq., Code of Ala.1975.

The order of the trial court vacating the appellee’s prior conviction and sentence in Case No. CC-77-001286 is hereby affirmed; however, the order of the trial court mandating repayment to the appellee of the fine and court costs is reversed and the cause is remanded for judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

All the Judges concur.

ON REHEARING

BOOKOUT, Judge.

Appellee urges in application for rehearing that the rationale expressed in Haden v. Lee's Mobile Homes, Inc., 41 Ala.App. 376, 136 So.2d 912 (1961), cert. denied, 273 Ala. 708, 136 So.2d 920, would support the instant trial court’s order to repay the fine and court costs. We disagree.

Haden, supra, clearly states that Art. I, § 14, of the Alabama Constitution, “prohibits a personal action against the State Tax Commission to recover money paid as a license tax under protest.” The Haden decision points out that under the then revenue statutes, Tit. 51, §§ 890 and 891, Code of Alabama 1940, certain taxes could be paid under protest, and their validity or amount could be determined by an action in the nature of a declaratory judgment. That specific and limited statutory procedure did not authorize money judgments against the state or against the taxing official, and neither can it be extended to authorize a trial judge in a habeas corpus action to order the state to repay to a defendant a fine and court costs.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (Re STATE of Alabama v. Lula Mae McCURLEY).
    80-540.
    Supreme Court of Alabama.
    June 26, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Ex parte Lula Mae McCURLEY. (Re STATE of Alabama v. Lula Mae McCURLEY).
    80-539.
    Supreme Court of Alabama.
    Jan. 8, 1982.
    Rehearing Denied Feb. 5, 1982.

      Richard D. Home of Hess, Atchison & Horne, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

We granted the writ of certiorari directed to the Court of Criminal Appeals to review a question of first impression: whether monies paid as fine and costs imposed after pleas of guilty to criminal charges made pursuant to a statute subsequently determined, retroactively, to be unconstitutional in its application to defendant, must be refunded?

Petitioner, Lula Mae McCurley, pleaded guilty in 1978 to charges of sale of pentazo-cine hydrochloride (Talwin) in violation of the Alabama Uniform Controlled Substances Act, Code 1975, §§ 20-2-1, et seq. She received a five year suspended sentence and was ordered to pay a fine in the amount of $5,000 and court costs totalling $307.70, both of which she duly paid.

Subsequently, this court ruled in McCurley v. State, 390 So.2d 25 (Ala.1980), that Talwin had not been classified as a controlled substance under the requirements of the Act and we, therefore, reversed McCur-ley’s conviction for its sale. Following that decision, McCurley petitioned the trial court for the writ of habeas corpus to vacate the conviction and sentence. The trial court granted her requested relief and also ordered that she be repaid the amounts of the fine and court costs, from which judgment the State appealed.

The Court of Criminal Appeals affirmed the trial court’s judgment insofar as it vacated the conviction and sentence, but reversed as to the order for the State to repay the fine and court costs, saying:

“We find no authority for the trial court to order the state to repay to the petitioner the fine and court costs paid in the prior case in question. The order of the trial court amounts to a money judgment against the state and in our opinion violates Article I, § 14, Constitution of Alabama 1901.
“... [T]he only relief available to persons such as the instant petitioner would be a ‘relief bill’ by the legislature or a claim filed with the State Board of Adjustment per § 41-9-60, et seq., Code of Ala.1975.”

We find no Alabama case which has addressed the issue here presented. However, this very question was considered by the federal district court in United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972), aff’d 478 F.2d 835 (5th Cir. 1973), which declared:

“... While there are no means available to compensate a person who has been imprisoned for violating a statute that is subsequently found constitutionally void and retrospectively applied, there is always a means for such a person to recoup his losses when the loss takes the form of a monetary fine. The Fifth Amendment prohibition against the taking of one’s property without due process of law demands no less than the full restitution of a fine that was levied pursuant to a conviction based on an unconstitutional law. Fairness and equity compel this result, and a citizen has the right to expect as much from his government, notwithstanding the fact that the government and the court were proceeding in good faith at the time of prosecution.”

In Lewis, the federal government asserted, as does the State here, the defenses of sovereign immunity and availability to petitioner of another remedy. In affirming the lower court’s decision, the Fifth Circuit addressed these issues as follows:

“This cause would require less in the way of adjudication if the party holding funds exacted under an unconstitutional statute was not an entity which could and does assert sovereignty as justification for its refusal to restore such funds to them from whom they were received.
“The Government concedes, although it has little choice to do otherwise, that the judgments of the district court must be affirmed insofar as they set aside the convictions of Lewis and Willoz. The Government asserts that, although the statute under which the fines were imposed [was] in violation of the Constitution, nevertheless if there is to be any recovery, which the Government does not concede, it must be by a separate action brought under the Tucker Act. 28 U.S. C.A. § 1346(a). This statute is one which confers a jurisdiction upon the district courts. It is not procedural. We can see no reason why a person who has paid a fine pursuant to an unconstitutional statute should be required to resort to a multiplicity of actions in order to obtain reimbursement of money to which he is entitled. Since the district court was empowered to set aside the conviction, it could also correct the unlawful result of the conviction and require the repayment of the money collected as fines....
“The Government says that the appellants cannot recover in any event or by any existing remedial procedure because there is no express statutory authority for such relief. Just as the imposition of a fine is an incident of a criminal conviction, so is the direction for repayment an incident to the vacating and setting aside of the conviction.”

478 F.2d at 836.

Reasoning similarly, the Supreme Court of South Dakota in State v. Piekkola, 90 S.D. 335, 241 N.W.2d 563 (1976), pronounced:

“. .. Even as the court had the right to set aside Defendant’s conviction it had the right and the duty to set aside the resulting sentence, including the fine and court costs imposed. Once the conviction had been set aside the state was without a right to collect or retain the fine and costs and Defendant had a lawful expectation of their return. The refund was incident to the vacation of the judgment in question.
“. . . To petition for the return of a fine and of costs imposed on the basis of unlawful authority is no more a suit against the state barred by sovereign immunity than to petition or file for the return of money paid to the government as income tax in excess of the amount due. To make more of the action than that offends common sense and severely distorts the image of justice as fairness.”

And in People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975), the Supreme Court of Illinois concluded:

“... We are of the opinion that the money, having been received in payment of fines imposed as an incident to judgments of conviction, should be ordered refunded as an incident to the vacation of the judgments under which it was ordered paid.”

Our thinking accords with the rationale and holdings of these decisions from other jurisdictions. We therefore conclude the trial court was acting both within its authority, and judiciously, in ordering repayment of the amounts of the fine and court costs to McCurley. Equity and fairness demanded no less.

The judgment of the Court of Criminal Appeals is due to be reversed and this case is hereby remanded to that court for entry of judgment consistent with this opinion.

REVERSED AND REMANDED.

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


author: BARRON, Judge.

text:
    STATE v. Lula Mae McCURLEY.
    1 Div. 227.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
   BARRON, Judge.

In compliance with the opinion of our Supreme Court, we find that the trial court was acting both within its authority and judiciously, in ordering repayment of the amounts of the fine and court costs to Ap-pellee.

Having conformed our opinion to that of the Supreme Court of Alabama, 412 So.2d 1236 (Ala.1982), the judgment of the trial court is now due to be affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Joey Lynn SIMMONS, a/k/a Jimmy Lee Smith v. STATE.
    8 Div. 479.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-215.

      Warren E. Mason, Jr., Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Deborah Hill Biggers, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction on a plea of guilty of robbery in the first degree and sentence to imprisonment for thirty-five years.

During the arraignment it was made known to the Court by defendant’s attorney, and by defendant by documents signed by both, that defendant waived his right to a trial by jury and desired to plead guilty to robbery in the first degree as charged in the indictment. Among several questions the trial judge asked the defendant was the question, “What did you do that prompted you to plead guilty?” The defendant replied in part, “. .. I was drunk at the time and didn’t know what I was doing... .”

The only issue on appeal is whether the trial court should have accepted the plea of guilty without further inquiry of the defendant as to his intoxication. It is clear that in all other respects all requirements were met for the acceptance of a plea of guilty and adjudication thereon.

No part of the transcript, other than that which is contained in the statement of defendant quoted above, pertains to the extent of his claimed intoxication.

If a person is so drunk or so under the influence of intoxicating liquor or drugs that he is incapable of forming the required felonious intent to steal, he cannot be convicted of larceny. Johnson v. State, 32 Ala.App. 217, 24 So.2d 228 (1945); Green v. State, Ala.Cr.App., 342 So.2d 419 (1977).

Robbery, as now proscribed by statutory law, “embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.” Code of Ala., § 13A-8-40(b). The statement of defendant can be properly construed as an assertion that he was so drunk as to make him incapable of possessing the requisite criminal intent to commit the alleged crime. On the other hand, the statement, under the circumstances here involved, is somewhat cryptic and is worthy of further investigation as to its full signification.

Before coming to a conclusion as to the validity vel non of the judgment of conviction and sentence, we remand the case to the trial court with directions that it conduct a hearing at which the defendant will be given the opportunity to amplify his statement quoted above. If he does not avail himself of such an opportunity, the statement will be treated by us as insufficient to vitiate the judgment, which in all other respects is clearly valid. Whatever statement defendant makes on the hearing to be conducted will thereafter be considered by this Court in determining whether he was validly convicted. In conducting the hearing, the trial court should make clear to the defendant the effect of voluntary drunkenness upon the question of his guilt.

After the return by the trial court as to this order remanding the case to it for the purpose stated, each party shall have fifteen days to file a brief in this Court, and the opposing party shall have ten days thereafter to file a reply brief, before action by this Court on the issue then before it.

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.

REMANDED WITH DIRECTIONS.

All the Judges concur.


author: DeCARLO, Judge.

text:
    J. B. DILBECK v. STATE.
    7 Div. 867.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied April 20, 1982.
    William D. Scruggs, Jr., Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and Robert S. Thompson, Sp. Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Buying, receiving, concealing stolen property; three years, with ninety days imprisonment and the remainder on probation, and a fine of $500.

The State’s evidence showed that on July 19, 1978, several individuals broke into Valley Mart Grocery in rural Etowah County and took a quantity of merchandise, including cigarettes and canned goods. Barney Cason and Thomas Brown testified that they participated in the burglary and then sold the stolen goods to the appellant. Both men stated that they told the appellant the merchandise was stolen.

Officer Gerald Bethune participated in the execution of a search warrant at the appellant’s place of business. He found merchandise there which matched the description of items taken during the burglary and which was later identified by the proprietors of Valley Mart Grocery.

Appellant introduced evidence that he did not know the goods were stolen, that he had in fact bought merchandise from Cason and Brown, but that they had informed him they were closing down a store and selling out their inventory.

I

Appellant’s only contention is that the trial court erred by allowing the State to introduce evidence that cigarette cartons were among the items found in the search of his premises, and that he and Officer Bethune had an “altercation” when Bethune examined the cigarettes during the search. Appellant argues that, because he was not charged with receiving stolen cigarettes, it was error to admit evidence pointing to a collateral offense not charged in the indictment.

In our judgment, the trial court did not err by allowing evidence that cigarettes were found during the search and that appellant balked at Officer Bethune’s attempt to examine the cartons. Prior to Bethune’s testimony, the storekeeper testified, without objection, that the first items he noticed missing after the burglary were the cigarettes. Later, Brown, one of the burglars, testified without objection that cigarettes were among the stolen items he sold the appellant.

At any rate, evidence that the search revealed cigarettes pointed to one continuing offense and tended to identify the cigarettes as having been stolen with the canned goods, see Waters v. State, Ala. Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978), and was a circumstance to which the jury might look in determining appellant’s guilt, see Coplon v. State, 15 Ala.App. 331, 73 So. 225 (1916). See also Beckley v. State, Ala.Cr.App., 335 So.2d 244 (1976).

We have searched the record for error and have found none; the judgment of conviction by the DeKalb Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Charles JERNIGAN and Ann Jernigan v. STATE.
    4 Div. 937.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, April 23, 1982 Alabama Supreme Court 81-481.

      George C. Douglas, Jr. and J. Mark Murphy, Andalusia, for appellants.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendants, husband and wife, were convicted in the district court of Covington County for violating Code of Alabama 1975, Section 12-15-13, by refusing to comply with Alabama’s compulsory school attendance laws. Appeal to this court is upon the following stipulation of facts as authorized by Section 12-12-72.

“The Defendants, Charles and Ann Jerni-gan, were convicted in the Juvenile Court of Covington County, Alabama, of violating Section 12-15-13, Code of Alabama, 1975, (causing delinquency, dependency, or need of supervision of a child) based on their failure to send their children under the age of 16 to school in compliance with the Alabama Compulsory School Attendance Law, Section 16-28-1, et. seq., Code. “The Defendants are practicing Catholics who belong to a Catholic Order called the Society of St. Pius X. The educational doctrines of their Order are based on the traditional Catholic position that the education of children is the primary responsibility of the parents, and that the children should be brought up in a Catholic educational environment. Based on their religious convictions, the Jernigans refused to send their children to the local public school on the grounds that to do so would violate traditional Catholic prohibitions against secular education and would expose their children to non-religious educational influences. The Jernigans testified that they believed that if parents allow their children to be exposed to such secular education or influences, then the parents will have committed a mortal sin if the religious salvation of the children is thereby endangered.
“There is no parochial school in Coving-ton County. The nearest parochial school would be in Montgomery or Dothan.
“For the past year the Jernigans have been educating their children at home using a Catholic correspondence course. The Defendants testified that their children adhere to a regular schedule of study between the hours of 8:00 A.M. and 4:00 P.M. for more than three hours each day and for at least 140 days each calendar year. Mrs. Jernigan instructs her children in the English language but because she does not hold a State teacher’s license, she is unable to qualify under the existing law as a ‘private tutor.’ Mrs. Jernigan made several attempts to have the course under which she is instructing her children approved as a substitute for public or parochial school attendance, but was informed by the State Superintendent of Education that this is not permitted under present regulations. Mrs. Jer-nigan has a high school diploma, but does not have a college degree or formal educational training, so she could not qualify for a state teacher’s certificate which would allow her to meet the ‘private tutor’ provisions of the compulsory attendance law.
“The State obtained a conviction based on a prima facie showing that the children were not attending public school or an approved substitute and after the Defendants had been given written notice as provided for under Alabama law.”

The defendants contend that their convictions cannot stand in light of the doctrines postulated in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). Basically, they argue that the state must permit them to educate their children at home as an incident of their right to freedom of religion as protected under the constitutions of the United States and the State of Alabama.

In Yoder, members of the Amish religion objected to the Wisconsin compulsory education law insofar as it required them to cause their children to attend school past the eighth grade. They believed, in accordance with the well established tenets of the Old Order Amish religion, that sending their children to public high school would endanger the salvation of both the parents and their children. This danger lay in the strongly held and time honored central belief of the Amish faith that salvation requires life in a church community totally separate and apart from the outside world and its influence.

In reversing the convictions of the Amish parents in Yoder, the United States Supreme Court employed a balancing test.

“The court weighed the concededly valid interest of the state in imposing reasonable regulations for the control and duration of basic education against the fundamental rights asserted by the Amish to freely exercise their religion and to direct their children’s religious upbringing. The court concluded that the Amish parents had convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Amish communities, the hazards of enforcing the compulsory education law against them, and the adequacy of the informal vocational education provided Amish youth past the eighth grade. The court held that the state had failed to show how, on balance, its legitimate interests in assuring an educated, self-reliant and self-sufficient populace justified requiring Amish children to attend school for a period of up to two additional years in contravention of their religious beliefs.”
State ex rel. Nagle v. Olin, 64 Ohio St.2d 341, 415 N.E.2d 279, 285 (1980).

The court found that the Amish proved that their way of life was inextricable from their religious beliefs and noted that the Amish religion pervades and determines the entire mode of life of its adherents. Sending the Amish children to high school would contravene and endanger the entire way of life mandated by the Amish religion. Because Amish children are assimilated into an agrarian society removed from other worldly influences, the values, goals and attitudes of modern secondary education were found to be in sharp conflict with the fundamental mode of life mandated by the Amish religion, to substantially interfere with the religious development of the Amish child and his integration into the Amish faith community and to carry with it the very real threat of undermining the Amish community and religious practice as it currently existed. The Supreme Court held that the state’s interests in compulsory education for children to age 16, while important, were not sufficiently supported as applied to the established religious groups of the Old Amish Order and the Mennonites to outweigh the First Amendment free exercise of religion right with which the “brief additional period of formal education” was found to interfere. Yoder, supra; Hanson v. Cushman, 490 F.Supp. 109 (W.D.Mich.1980).

While the sincerity of the defendants’ beliefs is not questioned, the other facts of this case are significantly different from those in Yoder. In Yoder, the parents sought only to have their children exempted from compulsory attendance after completion of the eighth grade. The Amish did not object to elementary education through the first eight grades because “it does not significantly expose their children to worldly values or interfere with their development in the Amish community during the crucial adolescent period.” Yoder, 406 U.S. at 212, 92 S.Ct. at 1531. Here the defendants claim the right to educate their children through a program of home study free from the compliance with state education laws.

The concurring opinion of Mr. Justice White, in which Mr. Justice Brennan and Mr. Justice Stewart joined, emphasized that the small increment of additional schooling involved in Yoder was, for him, decisive:

“This would be a very different case for me if respondent’s claim were that their religion forbade (the) children from attending any school at any time and from complying in any way with the educational standards set by the State.”
Yoder, 406 U.S. at 238, 92 S.Ct. at 1544 (White, J., concurring).

In Yoder the court found that the additional one or two years of formal high school education (beyond the eighth grade until the child is 16) for Amish children “would do little” to serve the interests of the state in preparing citizens to participate effectively and intelligently in the political system. Yoder, 406 U.S. at 221, 92 S.Ct. at 1536. The court noted that the informal vocational education provided by the Amish was highly successful in preparing the child for life in the separated agrarian community that is the keystone of the Amish faith.

Here the defendants seek to exempt their children from all public education without any showing that the home education they practice is an adequate substitute or replacement. The stipulation of facts upon which this appeal is submitted does not include any indication of Mrs. Jernigan’s competence or ability to teach her own children other than the bare fact that she has a high school diploma. Unlike the Amish parents in Yoder, the defendants have not demonstrated that their home teachings are successful in preparing their children. for life in modern society. There is not even a contention made that the children are being prepared for anything other than life in society as the majority live.

Unlike the Amish in Yoder, the defendants have not shown that their entire way of life is inextricable from their religious beliefs or that public schooling would substantially interfere with their religious practices. Neither have the defendants demonstrated that they can replace the positive aspects of compulsory education through the manner in which they insist upon educating their children.

The defendants have not demonstrated that compulsory education will tend to harm their children’s salvation. The facts stipulated were that the defendants believe that “if parents allow their children to be exposed to such secular education or influences, then the parents will have committed a mortal sin if the religious salvation of the children is thereby endangered.” (emphasis added) Yet the defendants fail to show that a secular education conflicts with or endangers the religious values or beliefs or salvation of the children. This is in stark contrast to the conclusion of the court in Yoder.

“The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.
“The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”
“In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents’ entire mode of life support the claim that enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondent’s religious beliefs.”
Yoder, 406 U.S. at 218-9, 92 S.Ct. at 1534-5.

“There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” Yoder, 406 U.S. at 213, 92 S.Ct. at 1532; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Even though the providing of public schools ranks at “the very apex of the function of a State”, Yoder, supra, this paramount responsibility is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, “prepare (them) for additional obligations.” Pierce, 268 U.S. at 535, 45 S.Ct. at 573.

Balancing the interest of the State against the religious interests asserted by the defendants, we find that the Alabama Compulsory School Attendance Law as applied to the defendants does not violate any constitutional right of freedom of religion. Hill v. State, 381 So.2d 91 (Ala.Cr.App.1979), reversed on other grounds, 381 So.2d 94 (Ala.1980).

The defendants also argue that their liberty, privacy and family integrity are violated by that portion of the compulsory school law requiring private tutors to hold public teaching certificates. A state’s power to require basic education of its citizens in order to promote legitimate State interests is undisputedly recognized. Yoder, supra. Having a high responsibility for the education of its citizens, a state has the power to impose reasonable regulations for the control and duration of basic education. Yoder. The State of Alabama does not seek, as did the State of Oregon in Pierce, supra, to compel children to receive instruction from public schools or public school teachers only. And as Pierce pointed out,

“No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”
Pierce v. State, supra.

And although Pierce does stand “as a charter of the rights of parents to determine the religious upbringing of their children”, Yo-der recognizes that this power of the parent may be limited by the State. We find no merit in defendant’s contention. As the court stated in Meyer v. Nebraska, 262 U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 626 (1923): “Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto.” We find this statement to be equally true for children who must receive their education in the home and an ample justification for the State’s reasonably narrow requirement of board certification for public and non-public school teachers. And as we have indicated, the defendants have not demonstrated that they can and will continue to provide an equivalent education, and it is not incumbent upon the State to verify the same.

We find that the holding of Roe v. Connecticut, 417 F.Supp. 769 (M.D.Ala.1976), relied upon by the defendants, is inapplicable to the instant case. The requirements of the compulsory attendance law, as applied to these defendants, are narrowly and reasonably drawn and directed toward furthering a compelling State interest. There is no unreasonable unconstitutional interference with the right to family integrity in its requirements. The compulsory attendance law does not “sweep past the constitutionally permissible range of interference into the sanctity of the family unit.” Roe, 417 F.Supp. at 779.

We believe we have answered the defendants’ various other constitutional contentions in the foregoing parts of this opinion. We do not find that the statutory requirements are overbroad or unduly restrictive in purpose or effect as applied to these defendants. State ex rel. Nagle v. Olin, 64 Ohio St.2d 341, 415 N.E.2d 279 (1980); State v. Whisner, 47 Ohio St.2d 181, 351 N.E.2d 750 (1976). We do find the State’s interest in compulsory education is both legitimate and compelling after balancing the facts of this case. Hanson v. Cushman, 490 F.Supp. 109, 115 (W.D.Mich.1980).

We have reviewed the record in light of all the contentions raised and find no harm to the substantial rights of the defendants. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . “(T)he value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.”

        Yoder, 406 U.S. at 222, 92 .S.Ct. at 1536.


author: TYSON, Judge.

text:
    George Richard JONES v. STATE of Alabama.
    6 Div. 425.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, May 7, 1982 Alabama Supreme Court 81-483.

      Elizabeth T. Cvetetic, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

George Richard Jones was indicted for the armed robbery of one Robert Dickerson, Jr., by putting him in fear or by threat of violence to his person, etc. The jury found the appellant “guilty as charged” and the trial court, following a sentencing hearing, set punishment at 20 years’ imprisonment in the penitentiary.

This case arises from the armed robbery of the Civic Center Branch of the Birmingham Trust National Bank at approximately 1:40 p. m. on the afternoon of May 2, 1979. Employees of the bank activated the film equipment which took photographs of the robbery as the same was in progress. Subsequently, investigators made enlargements from various photographs taken from the video tape of the robbery in question.

Robert Dickerson, Jr. was branch manager of the bank on the date in question. He indicated that on this date he was talking with a customer when he was approached by a black male, slightly over six feet tall, wearing a Big Apple hat pulled over his eyes, brown button-up shirt, tennis shoes and lighter colored pants, who pointed a shotgun at him and required him and the customer to lie on the floor. He stated that the robbery covered a space of less than ten minutes and approximately $12,000.00 was removed from the bank. He stated that none of the proceeds was surrendered voluntarily and that the bank used dye bombs with bait money which would rub off on persons involved in the robbery.

Anthony Jones stated he was a customer in the bank who had been talking with Mr. Dickerson when he observed the appellant inside the bank pointing a shotgun at Mr. Dickerson. Mr. Jones made a positive in-court identification of the appellant. He stated that he had no prior knowledge before coming into court that the appellant would be seated at any particular place in the courtroom and on cross-examination stated that he had not been told by the prosecutor that the appellant was black or that he would be seated at counsel table during trial.

Herman Boykin, also called as state’s witness, testified that he was a customer inside the bank in question shortly before 2 p. m. on the afternoon in question when he saw the appellant and a companion and observed appellant as he went to a window with a shotgun. He made a positive in-court identification of the appellant. He stated that he was required to lie down on the floor and he observed appellant and a companion as they left the bank and that he saw a dye bomb go off and that the men dropped the bag of money and then tried to gather it up.

On cross-examination, Boykin stated that he did see a man seated at counsel table with his back to him the day before trial, but that he did not get a good look at the man and had not been told who was seated there, nor was he given prior to trial any information as to the appellant or his whereabouts in the courtroom.

James Calhoun stated he was a customer of the bank and had approached a drive-in window on the afternoon of May 2, 1979, when he looked in and saw a black man, whom he identified as the appellant, with a companion going through the drawers of the bank and that he saw them leave, heard a dye bomb go off and saw the men gather up the proceeds and run out of the bank.

On cross-examination he stated that he had been taken to the courtroom by the district attorney handling the case the day before trial and that he had seen some persons in the courtroom, but that the prosecutor did not tell him who would be in the courtroom or their whereabouts during the time of the trial. He stated that he believed he had seen a side view of the appellant the previous day, but he could make a positive in-court identification of appellant from having seen him the day of the robbery and did so based on his view of him inside the bank.

Events inside the bank were verified by other state witnesses and investigating officers from photographs and statements given to them by persons inside the bank on the date in question.

I

The appellant moved to exclude at the close of the state’s evidence and moved to suppress the identification by the state’s witnesses at trial. These motions were denied.

In brief appellant’s counsel cites Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); and Cannon v. State, 558 F.2d 1211, 5th Cir. (1977) in support of his motions.

With reference the testimony of the manager of the branch bank in question, Mr. Robert Dickerson, Jr., it should be here noted that the trial court granted appellant’s motion with reference his testimony as to his identification of appellant as he indicated that the prosecutor had told him on the day prior to trial that the appellant would be the party on trial the next day. The trial judge very carefully excluded this testimony and instructed the jurors not to consider such in their deliberations with reference the issues which would come before them.

However, the other state’s witnesses who made a positive in-court identification were either in the bank as customers or an employee and each very carefully testified that their identification of the appellant was based upon their observation of him and his companion inside the bank on the afternoon of May 2, 1979.

Each of the state’s witnesses was cross-examined by defense counsel as to their examination of photographs or a lineup before trial and also as to whether or not they had been brought into the courtroom the day before trial and as to what may have occurred with reference each witness at that time.

Each of the remaining state’s witnesses indicated their identification was based upon their view of him during the robbery of the Civic Center Branch of the Birmingham Trust National Bank on the afternoon of May 2, 1979.

In cases such as the instant cause, we are carefully required to weigh the evidence presented, including the cross-examination, to see if such testimony is tainted by virtue of pretrial procedures employed by the prosecution. In the case at bar, we find that those witnesses whose testimony identified the appellant as being one of the robbers on the date in question and as being inside the bank and pointing a shotgun at employees and removing the proceeds from the bank were very careful in identifying the appellant based upon their observation of the robbery while in progress. We therefore are of the opinion that the trial court properly submitted the remaining testimony to the jury and overruled the appellant’s motion to suppress and motion to exclude the testimonies at trial. Smith v. State, 53 Ala.App. 27, 296 So.2d 925 (1974); Childers v. State, 339 So.2d 597 (Ala.Cr.App.), cert. denied, Ala., 339 So.2d 601 (1976); Liptroth v. State, 342 So.2d 959 (Ala.Cr.App.), cert. denied, Ala., 342 So.2d 961 (1977); Dixon v. State, 357 So.2d 690 (Ala.Cr.App.1978); Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.) cert. denied, Ala., 373 So.2d 1211 (1979); McKinnis v. State, 392 So.2d 1266, (Ala.Cr.App.), cert. denied, Ala., 392 So.2d 1270 (1980).

II

Appellant’s counsel asserts that this cause is due to be reversed due to several instances which he alleges constitute “prosecutorial misconduct.” In particular, counsel asserts that such an atmosphere was created by the cumulative effect of the assistant district attorney’s actions that a prejudicial atmosphere was thus created. Counsel calls attention to instances at R. page 279, 308-310 and R. 320.

A

In reviewing the assertions of counsel, we note herein that the examination on R. 279 was with reference the witness Mr. Calhoun and his observations of the incident which occurred in the Civic Center Branch of the Birmingham Trust National Bank on May 2, 1979.

The witness indicated that the assistant district attorney did not say who in fact would be seated in the witness chair at trial. There was some colloquy between the attorneys and the court finally indicated to them to address their remarks to the court. The questioning then continued and the witness made a positive in-eourt identification of the appellant. We see no error.

B

With reference the exchange on R. pages 308-310, state’s witness Mr. Moynihan was on the witness stand and indicated that James Calhoun was a customer at a drive-in window. He also stated that Mr. Boykin was a customer within the bank. The court stated that this witness could not testify as to what Mr. Boykin had told him and subsequently admonished counsel that he could not reveal the results of his interview with one Anthony Jones; that such was inadmissible and to move along. Clearly, the refusal to allow hearsay into evidence was proper and no error resulted.

With reference the interrogation on R. 319 and 320, this was of the redirect examination of Sergeant Miller as to the results of his investigation. The Sergeant had examined certain photographs and had talked with various witnesses and he identified witnesses with whom he had conversed. He also stated that he had turned fingerprints over to the F.B.I. However, the court pointed out that the parties had stipulated that because the prints were smudged, no positive identification could be made. We see no error in the court’s rulings as to this witness.

C

Finally, with reference the testimony on R. 370-372, this involved the testimony of the appellant’s sister during cross-examination by the district attorney. She was asked if he had been down and talked with the district attorney following his brother’s arrest. With reference the specific question as to what defense counsel, Mr. Newman, told her to testify to, we quote R. 371 and 372 for clarity:

“Q And weren’t you and Mr. Newman out there talking about what you were going to testify to?
“A No.
“Q That’s not true?
“A That’s not true.
“Q Let me ask you, Ms. Tyler, isn’t it a fact that you stood out there in the hall and Mr. Newman told you as you stood there in the hall, you just go in there and testify and tell these ladies and gentlemen of the jury what I told you last night to tell us? Didn’t he make that statement?
“MR. NEWMAN: I object to that. That’s absolutely and thoroughly not true. That’s unbelievable.
“THE COURT: Overruled.
“Q That’s not true? He did not make that statement to you? You’re sworn to tell the truth. He didn’t tell you that?
“MR. NEWMAN: Objection.
“THE COURT: Overrule your objection.
“A He didn’t say that.
“Q What did he say?
“A He asked me was I all right. He told me not to be nervous, just answer the questions yes or no. That’s all.
“Q What else did he say besides that?
“A That’s all that he told me. That’s the honest truth.
“Q Did your brother George Jones own a car back then on May 2nd, 1979?
“A No.
“Q Do you know any of your brother’s friends back then?
“A No.
“Q Did you know any of George’s friends?
“A No.
“Q George Jones lived at your mother’s house and at your house?
“A Right.
“Q And you were over there from 7:00 o’clock til 5:00 o’clock everyday?
“A That’s true.”

In examining this exchange, it is clear that the witness gave a negative answer to the district attorney’s questions and the trial court correctly ruled on the objection. Clearly, no error occurred.

Ill

Finally, counsel calls attention to a number of jury charges which were refused by the trial court.

Particularly, counsel questions the trial court’s refusal to charge with reference the “probability of innocence” and “reasonable doubt as to guilt” which “may arise from only part of the evidence” and further as to the weight of the state’s witnesses’ testimony-

At the outset, we note that there was no exception to the oral charge of the trial court. We have carefully reviewed this charge and find that the trial judge did carefully cover the presumption of innocence, the weight and credibility of various witnesses for both sides, the elements of the offense in question, the identity of the parties, conspiracy and guilt beyond a reasonable doubt and to a moral certainty. We find no error in the refusal of the written requested charges. Section 12-16-13, Code of Alabama, 1975.

Moreover, inasmuch as counsel for appellant did not object or except as to the refusal of each of these requested charges in open court, he did not preserve the refusal of same for our review. Allen v. State, 1981, 414 So.2d 989 (Ala.Cr.App.).

We have carefully examined this record and find no error therein. The judgment of the trial court is therefore due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Phillip Eugene HAYES v. STATE.
    6 Div. 667.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, April 30, 1982 Alabama Supreme Court 81-488.
    James M. Jolly, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

Appellant questions the sufficiency of the evidence to support the verdict of the jury finding appellant guilty of robbery in the first degree as proscribed by Code of Alabama 1975, § 13A-8-41, which provides:

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) is armed with a deadly weapon or dangerous instrument; or
“(2) causes serious physical injury to another.
“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under sub-section (a) of this section that he was so armed.
“(c) Robbery in the first degree is a Class A felony.”

Appellant does not, and could hardly rightfully, take the position that there was insufficient evidence to identify the defendant as the person who, according to the undisputed evidence, obtained approximately eighty dollars from the cashier of a food store by holding what appeared to be a pistol in front of her face, asking “Do you see this?” and stating, “Give me your big bills,” which she did by taking them out of the cash register as he grabbed them out of her hand. She was positive in her identification of the defendant. Furthermore, latent fingerprints were afterwards lifted from a sack of coffee the robber was handling just before the robbery and were shown to match known fingerprints of the defendant. Appellant’s contention is centered upon the remarkable circumstance that some time after the robbery was committed and the robber had left the scene a toy pistol was found in the yard of the store. As to it, one of the officers testified:

“Q. Okay. Now, do you know who found the toy pistol?
“A. Yes, sir.
“Q. Did Rose Ann Terry [the victim] find it?
“A. No, sir.
“Q. Who found it, if you know? What was her name?
“A. Mrs. Williams.
“Q. Do you know where specifically it was found, what location, just outside the store?
“A. It was laying on the ground up toward the — as you face the diagram, toward the left corner of the store.
“Q. Front or in the back?
“A. It would be more toward the front.”

The indictment alleged that the robbery occurred “while the said Phillip Eugene Hayes was armed with a deadly weapon, a pistol, in violation of § 13A-8-41 of the Alabama Criminal Code.”

If there had been evidence connecting the robber with the toy pistol found in the yard, appellant’s studious and resourceful counsel would present a serious question as to whether the “prima facie evidence” presented by the victim that defendant was armed with a deadly weapon was overcome. However, such question is not now presently determinable in favor of appellant, as the evidence affirmatively shows that no fingerprint of any value was ever lifted from the toy pistol, and there was no evidence to support a reasonable inference that the toy pistol, instead of a real pistol, was used in committing the robbery.

From what has been said, it is to be concluded also that the evidence would not have justified the trial court in charging the jury “on lesser included offenses of robbery,” or “on the elements of robbery in the second and third degree,” which appellant contends the trial court should have done.

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

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

AFFIRMED.

All the Judges concur.


text:
    Wilbert Conrade SWANN v. STATE.
    1 Div. 320.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.

      David L. Barnett, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Mobile County returned an indictment for murder against the appellant, Wilbert Conrade Swann, and he entered a plea of not guilty, and was found guilty by a jury of murder as charged in the indictment. The appellant was duly sentenced to imprisonment in the penitentiary of the State of Alabama for a term of life, and he gave notice of appeal to this Court.

The appellant was at all proceedings in the trial court represented by counsel of his own choice, and is represented in this Court by the same counsel by appointment of the trial court. The appellant was given a free transcript. This appeal was submitted to this Court on briefs.

The appellant states four reasons in his brief why the trial court erred to the prejudice of the appellant. First, it is error to allow evidence to be introduced which is the product of a “stop and frisk” search when the only basis for the stop is appellant’s resemblance to a composite drawing of the suspect; second, it is error to continue to question a suspect who has invoked his right to counsel until counsel is present. A statement made under these circumstances is inadmissible; third, it is error to introduce a statement when there has been a suppression of a tape which is the best evidence of the statement, and it was requested by appellant, and ordered to be produced by the court; fourth, when there is no showing of the voluntary shooting of a pistol, there can be no conviction under Code of Alabama, Title 13A-6-2(a)(2).

The first error complained of by the appellant in his brief is that state’s witness, Officer Mickey Domen, did not have the right to stop and frisk the appellant when Domen found a .22 caliber pistol concealed on the appellant, the appellant was arrested for having a concealed pistol. There was a motion by appellant to suppress. On voir dire examination of Officer Domen, a member of the Mobile Police Department, by appellant’s counsel, we quote from the record:

“THE COURT: All right, go ahead.
“VOIR DIRE EXAMINATION
“BY MR. BARNETT:
“Q Let me ask you this, Officer Domen, you got a piece of paper from your squad or whatever it was with a description on it. Is that a fair statement?
“A Description, yes, sir.
“Q You went out there — the disturbance you went out to Solomon’s about didn’t have anything to do with this fellow, did it?
“A No, sir.
“Q You had already handled that when you saw him?
“A Yes, sir.
“Q In relation to when it happened, about how long after you handled that disturbance was it that you saw this fellow? What period of time elapsed from the time you handled that complaint until the time you saw this fellow?
“A Two or three minutes.
“Q Two to three minutes. All right, now, he hadn’t done anything in your presence, hadn’t committed any crime in your presence, had he?
“A None.
“Q You had no warrant for him, did you?
“A No, sir.
“Q So, the reason and is it a fair statement to say the only reason you went over and approached him is the likeness he bore to the description you were given in your squad before you went out that day?
“A Exactly.
“MR. BARNETT: That’s all I have, Judge. Based on that we move to suppress any evidence that they found from him based on the fact that it was illegally seized because the stop itself was not based on any kind of probable cause and wasn’t sufficiently legally correct in order to enable him to stop and frisk this fellow.
“THE COURT: Denied. Go ahead.”

There was evidence that Officer Domen had a description of the appellant as a murder suspect. It appeared later the pistol was the property of the appellant, and a bullet taken from the body of the deceased which caused her death was fired from appellant’s .22 caliber pistol, and that the arrest was made in the parking lot at Solomon’s Saloon. The arresting officer had a description of the murder suspect furnished by the Mobile Police Department.

We hold that Officer Domen, when he stopped the appellant in Solomon’s parking lot, had sufficient facts before him to cause Officer Domen to reasonably suspect that appellant had committed a felony, and the appellant being a murder suspect, the officer was justified in searching the appellant for a dangerous weapon, and upon finding a .22 caliber pistol on the appellant, the officer had a right to seize the pistol, and arrest the appellant for having it in his possession. Code of Alabama, 1975, Sec. 15-5-30 and Sec. 15-5-31; Andrews v. State, Ala.Cr.App., 406 So.2d 1041; Certiorari Denied, Ala. 406 So.2d 1045; Johnson v. State, Ala.Cr.App. 406 So.2d 446; Burch v. State, Ala.Cr.App. 375 So.2d 546; Robinson v. State, Ala.Cr.App. 361 So.2d 379; Certiorari Denied, Ala. 361 So.2d 383; Mauldin v. State, Ala.Cr.App. 402 So.2d 1106; Jones v. State, Ala.Cr.App. 401 So.2d 322.

The second error complained of by the appellant in his brief is that it is error to continue to question a suspect, who has invoked his right to counsel, until counsel is present. The appellant was arrested on a warrant charging him with murder. At the time of his arrest, before any questions were asked him, and in the presence of Police Officers Richardson, Boone, Williams, Webb, and his mother, his Miranda rights were read to him. We quote from the record:

“MR. DEEN: Read it like Detective Boone did.
“THE WITNESS: Best I can.
“A Number 1, you have the right to remain silent and not make any statements at all. Number 2, anything you say will be used against you in a court of law. Number 3, you have a right to consult an attorney before making any statement and have such attorney present with you while you are making a statement. Number 4, if you do not have enough money to afford an attorney, you have the right to have you one appointed by the court to represent you and consulting him before making any statements and to have him present while you are making a statement.
“Q Is that it?
“A Number 5, if you request an attorney no questions can be asked you until the attorney is present to represent you. Number 6, at any time during the questioning, you may request that the questioning be stopped and it shall be stopped. Then Sergeant Boone asked him if he understood his rights.
“Q What did he say?
“A He said he did.
“Q Did he appear to be intoxicated or on drugs at the time the statement was read?
“A No, sir. * * * ”

The appellant, while being transported from the place of his arrest to the police headquarters, and when no threats, or promises had been made to him to talk, talked with the arresting officers about the appellant's whereabouts on the day of the homicide, and for a few days ■ thereafter, and about the people he had been with, and about the ownership of a .22 caliber pistol owned by the appellant.

Appellant’s mother testified in substance that when the appellant was arrested, and before the officers took him downtown, she stated to the officers that she wanted to call Attorney David Burnett’s office so he would know about the arrest of the appellant. That Officer Webb went into the kitchen with her, and she made the call.

At no time after the appellant was read his Miranda rights, and said he understood them, or during the ride downtown, while he was talking with the arresting officers, did he request that his attorney be present, or that no further questions be asked until his attorney was present, or he could have an opportunity to talk with his attorney before answering further questions. The record shows that the questions asked were freely and voluntarily answered by the appellant. That he fully understood his Miranda rights.

When a suspect of a crime is fully informed of his Miranda rights, and knowingly, intelligently, and voluntarily proceeds to talk with the arresting officers, and fails to assert his right to remain silent, or have present his attorney, he waives the rights to remain silent, or have an attorney present during the conversation with the officers. We hold that the facts in this record show clearly that the appellant knowingly, intelligently, and voluntarily waived his right to have his attorney present during the talk with the officers. Dotson v. State, 288 Ala. 727, 265 So.2d 162; 48 Ala.App. 381, 265 So.2d 164; Certiorari Denied, 288 Ala. 742, 265 So.2d 175; Certiorari Denied, 93 S.Ct. 930, 409 U.S. 1117, 34 L.Ed.2d 701; Love v. State, Ala.Cr.App., 372 So.2d 414; Taylor v. State, 282 Ala. 567, 213 So.2d 566; Jackson v. State, Ala.Cr.App., 387 So.2d 316; Williams v. State, Ala.Cr.App., 384 So.2d 1205.

The appellant’s third contention in his brief is that the trial court erred to his prejudice when it allowed to be introduced into evidence a statement when there has been a suppression of a tape which is the best evidence of the statement, and it was requested by the appellant, and ordered to be produced by the court. With reference to the objection by the appellant on the ground that the tape is the best evidence of the statements that had been taped, we note that the testimony of Officer Richardson, who was present when the conversation between the appellant and the police officers who arrested the appellant was taped, was admissible into evidence after appellant was read his Miranda rights, and knowingly, intelligently, and voluntarily waived them. Upon a proper predicate a tape of a conversation, if available, may also be introduced into evidence. We quote from Elkins v. State, 250 Ala. 672, 35 So.2d 693:

“All that the accused voluntarily wrote or said which Í3 material to the charge, is competent against him because it is his own admission and against his own interest. The witness testifies not as to what the writing contains, but as to what he heard the defendant say. The court was not in error in allowing parol evidence of the statement made by the accused.”

McElroy’s Alabama Evidence 3rd. Edition, Sec. 200.19; Fleming v. State, 57 Ala.App. 556, 329 So.2d 616; McBryar v. State, Ala.Cr.App., 368 So.2d 568; Certiorari Denied, Ala., 368 So.2d 575; Beckham v. State, Ala.Cr.App., 389 So.2d 573.

We now consider the state’s failure to produce the tape of the conversation between the appellant and the officers. A copy of the tape was given to appellant’s counsel by state’s counsel a week before the day the trial was set, it was not legible, state’s counsel stated that he did not intend to attempt to place the copy in evidence, he did not have the tape. Appellant’s counsel only requested the tape of state’s counsel when the trial began, Officer Richardson had tried to locate the tape, but was unable to do so. The motion to produce the tape was not made until after the trial had begun. The court stated, as follows:

“THE COURT: All right, I’m going to overrule all your objections and I will deny your motion to suppress. If the tape exists, I’ve already granted the motion to give it to you but I can’t make them produce what they no longer have.
“MR. BARNETT: Thank you.
“THE COURT: We will be in recess for about five minutes.
“(Recess.)
“(Resumed. Jury present.)”

The trial court should not be put in error for failure to cause the state to produce a tape recording which would call for a delay in, or interruption of, a trial, in order to determine whether the tape still exists, or can be found. In view of the failure of the appellant to file a timely motion for the production of the tape, and to prove it was in the possession, or control, of state’s counsel, the trial court did not abuse its discretion to the prejudice of the appellant. The trial court granted appellant the right to receive and play the tape if state’s counsel had it, or could locate it during the trial. Fuller v. State, Ala.Cr.App., 338 So.2d 492; Juzang v. State, Ala.Cr.App., 348 So.2d 516; Oliver v. State, Ala.Cr.App., 399 So.2d 941.

Next we consider appellant’s fourth contention that when there is no showing of the voluntary shooting of a pistol, there can be no conviction under Code of Alabama, Title 13A-6-2(a)(2). State’s evidence tended to prove that on Wednesday, April 8, 1981 the deceased was a sixteen-year-old girl who lived in Baldwin County, Alabama; that about 10:30 P.M. the deceased and a boy friend left deceased’s home, and went to the Met in Mobile, Mobile County, where they had several drinks; that the deceased refused to dance with her date, and refused to leave with him, but danced with another person; her date gave the deceased her purse out of the trunk of his car and left, and early the next morning heard about her death, and gave the Mobile Police a description of the person he last saw the deceased with; the nude body of the deceased was discovered at about 7:00 A.M. on Demotrop-olis Road in Mobile County, and the clothing of the deceased was found about 175 feet away from the body; deceased’s i. d. card, and other personal effects were found near the body. State’s evidence further tended to prove that on Thursday, April 9, 1981, the deceased was at Shotgun’s, a bar in Mobile County, at about 12:30 A.M.; that she was with two men, one whom looked like the appellant; that at 4:30 A.M. she was still with the two men; that later that afternoon the witness who had seen the deceased at Shotgun’s at 12:30 A.M., gave the Mobile Police a description of the two men she was with. State’s evidence further tended to prove that on April 11, 1981, shortly after 2:26 A.M., Officer Domen of the Mobile Police Department was leaving the parking lot of Solomon’s in Mobile, Alabama when he noticed two men and a woman leaving Solomon’s; that one of the men, the appellant, especially fit the description of a composite picture handed to Domen earlier that night by the Police Department of Mobile; that the officer approached the two men, and patted them down, and found a .22 caliber, automatic pistol on the appellant; that the pistol was confiscated, and the appellant arrested for carrying a pistol without a permit; that the appellant asked the officer if anyone had been arrested for shooting the girl on Demotropolis Road. State’s evidence further tended to prove that the deceased died from a .22 caliber bullet found in the head of the deceased, and fired from the .22 caliber, automatic pistol, at close range, from about six inches to a foot and a half; that the .22 caliber, automatic pistol was the property of the appellant.

State’s witness, Tony Simms, testified, in substance, as follows: That he and the appellant were good friends; that witness Simms now stood charged with the murder of the deceased also; that Simms and the appellant met the deceased for the first time at about 9:00 P.M. on April 8, 1981 in the Met, a bar in Mobile County; that they danced, and had a few drinks; that the deceased was with another man, but he left about 11:00 or 12:00 o’clock; that Simms and the appellant went to the “Met” in Simms’ Buick car; that Simms, the deceased, and the appellant went in Simms’ car to the Shotgun’s where the three stayed about 20 or 30 minutes; that they rode around a while, and the appellant and the deceased had sex. That Simms did not have sex with the deceased because he could not have an erection; that the appellant and the deceased got on the back seat of the car, and the appellant pulled the clothes off the deceased, and was having sex with her, and when she pushed him up the second time, the appellant shot her; Simms stated to the appellant, “Wilbert, you shot her,” and he said, “I know it;” that the appellant drug her nude body out of the car, and her clothing was thrown out of the car, and her purse emptied along the road. That the appellant had a gun which was in his back pocket; that Simms attempted to clean the blood off the back seat of the car, but could not remove it all; that it all happened about 6:00 in the morning. State’s evidence further tended to prove that a sample of blood taken from the back seat of Simms’ car, and a sample taken from the ground where the body was found, and a sample taken from the body of the deceased, were all group A, and that about 40% of the people have that kind of blood.

The appellant testified in his own behalf. His testimony was substantially the same as Simms’ testimony, except the appellant testified that Simms shot the deceased, and helped get the body out of the car, and that the appellant did not have the gun in his back pocket, but his gun was left in the glove compartment when he was at the Met. There was a conflict in the testimony as to how the appellant got the gun back. Code of Alabama, 1975.

“Sec. 13A-6-2. Murder.
“(a) A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person; or
“(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person.”
“(b) A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof. This subsection does not apply to a prosecution for, or preclude a conviction of, manslaughter or other crime.”

A positive intent to cause the death of the deceased is an essential element of murder. An intent to cause the death of the deceased may be inferred from the character of the assault, the use of a deadly weapon, and all other attending circumstances surrounding the death of the deceased. We hold that under the facts in this record it was a question for the jury to decide who shot the deceased, and if the shooting was intentional. That state’s evidence fully sustains the jury’s verdict of guilty as charged in the indictment. Code of Alabama, 1975, Sec. 13A-6-2-murder, supra; Harjo v. State, Ala.Cr.App., 395 So.2d 1104; Certiorari Denied, Ala., 395 So.2d 1105.

There being no reversible error, the judgment of the trial court is due to be, and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte TOWN OF GULF SHORES. In re TOWN OF GULF SHORES v. Linda Trabosh JONES.
    1 Div. 390.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.

      Mary E. Murchison & Margaret G. Thomas, Foley, for petitioner.
    W. Kenneth Gibson of Taylor, Benton & Gibson, Fairhope, for respondent.
   TYSON, Judge.

The Town of Gulf Shores, Alabama, presents this court with a Petition for Writ of Mandamus, seeking to require the circuit court to set aside its order and judgment entered on February 4, 1982, determining that Linda Trabosh Jones was due to be discharged, in that no arraignment appeared on the record, and that the court then granted the defendant’s oral motion to so discharge the said Linda Trabosh Jones.

The issue thus presented by this record is whether or not there was a proper arraignment in this cause of Linda Trabosh Jones and if not did the circuit court err in granting the defendant’s oral motion to discharge the said Linda Trabosh Jones.

There is no transcript of the evidence of the proceedings in either the Municipal Court of Gulf Shores or the Circuit Court of Baldwin County in this cause.

However, a duly certified copy of the proceedings in the municipal court showing that Linda Trabosh Jones was charged by information in the Municipal Court of Gulf Shores for the offense of driving under the influence of alcohol, to which she entered a plea of not guilty on December 9,1980, and thereafter, upon trial, was found guilty and fined $200.00 plus costs is filed. Notice of appeal was given on December 15,1980, and a certified transcript of the inferior court proceedings forwarded to the circuit court under date of December 17, 1980, and docketed in the Circuit Court of Baldwin County on December 19,1980. Thereafter the trial docket sheet of the circuit court indicates the cause was continued on four different occasions commencing on February 12, 1981 until trial was held on February 4, 1982, wherein the jury found the defendant “guilty of driving under the influence of alcohol.” However, on this same date, on oral motion by the defendant to discharge defendant because no arraignment appeared in the record, the trial court granted said motion and discharged the defendant.

Thereafter, the Town of Gulf Shores filed affidavits of record through the firm of Murchison and Thomas, setting forth that no record exists with reference to the comments of the circuit judge made prior to the taking of the testimony on the date of trial, to-wit February 4, 1982, but asserting that the trial judge read the charge, and stated that Jones had heretofore pled not guilty to the charge. A second affidavit is in the record, dated March 17, 1982, indicating that while no record of the proceedings before the circuit judge exists, that a brief statement of the cause was read from the “Solicitor’s Complaint” which is attached as Exhibit D and was read before testimony was given in the cause. These two affidavits are not challenged either in the circuit court or in the record filed in this court by either the district attorney’s office or the circuit judge. See Rule 10(d) ARAP. There was no petition filed either in circuit court or in this court to correct or modify the record in this cause. See Rule 10(f), ARAP.

We do have, however, the answer of the circuit judge which accepts notice of the petition but neither admits or denies the allegations of the Petition for Writ of Mandamus and submits to the jurisdiction of this court.

I

In Ludlum v. State, 52 Ala.App. 631, 296 So.2d 254 (1974), we find the following:

“Presiding Judge Bricken, speaking for this Court in Chesnut v. State, 35 Ala.App. 376, 47 So.2d 248, stated the following:
‘There can be no trial on the merits in a criminal case until the defendant has pleaded not guilty, or this plea has been entered for him by the court; Jackson v. State, 91 Ala. 55, 8 So. 773, 24 Am.St.Rep. 860; Howard v. State, 165 Ala. 18, 50 So. 954; Bowen v. State, 98 Ala. 83, 12 So. 808; Childs v. State, 97 Ala. 49, 12 So. 441.’
“This Court, in McClendon v. State, 44 Ala.App. 558, 216 So.2d 302, observed: ‘There is no recitation in the judgment entry of the defendant’s having made a plea to the complaint. Nor is there any showing that he stood mute and had a plea of not guilty entered for him by the court. Tit. 15, Sec. 276, Code of Ala., 1940.
‘In Bray v. State, 16 Ala.App. 433, 78 So. 463, the coui;t stated:
‘It is well settled that the judgment of conviction in a criminal case must affirmatively show that the defendant pleaded to the indictment, or that, standing mute, the court cause the plea of not guilty to be entered for him.’
“See also Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90; Jackson v. State, 91 Ala. 55, 8 So. 773; Sexton v. State, 29 Ala.App. 336, 196 So. 742, cert. denied, 239 Ala. 662, 196 So. 746.
‘The absence of a plea by the defendant or one of not guilty entered by the court on his behalf must also cause a reversal.’ See Rorex v. State, 44 Ala.App. 112, 203 So.2d 294.”
“Most recently this Court, through Almon, J., in Newsome v. State, 49 Ala.App. 248, 270 So.2d 680, stated:
‘... This oversight could have been cured by the trial court’s entering a plea of not guilty for appellant as if he had stood mute when called upon to plead to the indictment. This could have been done at any time before or during the trial before the jury retired since it is obvious from the record that the trial was conducted with the full consent and participation of the appellant. Fernandez and White v. State, 7 Ala. 511; Carr v. State, 43 Ala.App. 481, 192 So.2d 741. The mere notation, ‘issue being joined’ has been held to satisfy the requirement of an arraignment and plea. Clayton v. State, 16 Ala.App. 432, 78 So. 462.”

The Town of Gulf Shores first asserts, citing Rorex v. State, 44 Ala.App. 112, 203 So.2d 294 (1967) and Pugh v. State, 343 So.2d 793, 795 (1977) that in the absence of an arraignment shown by the record in the circuit court that this court may look to the supporting documents to see if in fact an arraignment took place in the inferior court. The Town of Gulf Shores, through counsel, also cites this court’s recent opinion in Holden v. City of Huntsville, 407 So.2d 179, affirmed 407 So.2d 182 (Ala.Cr.App.1981), for the proposition that this court may look to the records of the inferior court to see if the proper notice requirements were complied with under the applicable statute and also if, in fact, a proper warrant was made in the inferior court.

The inferior court, of course, is not a court of record and on appeal therefrom, the appellant is entitled to a trial de novo in circuit court. This is what transpired in the instant cause.

We do not agree with the attorneys for the Town of Gulf Shores that Borex and Pugh, supra, support its argument that this court may look to the proceedings in the inferior court to determine whether or not there was a proper arraignment in this cause. We do not believe these two cases support this argument. Rather, these cases point out the necessity of an arraignment on a charge such as the case at bar of a misdemeanor; the offense in question being driving while under the influence of alcohol.

The appellant is entitled to an arraignment in circuit court since such proceeding is a trial de novo.

II

However, neither Jones nor the circuit judge has filed an answer or affidavit to counter the affidavits filed in circuit court by the Town of Gulf Shores and made a part of this record, on Petition for Writ of Mandamus, which affidavits show the fact that following the granting of the motion to discharge by the circuit judge, there was nevertheless evidence to support the assertion that a “new arraignment” was held just before trial in circuit court by reading the “Solicitor’s Complaint.” See O’Leary v. State (Alabama Supreme Court, January 9, 1981) .and Rule 10(d) A.R.A.P. However, the failure to then obtain a plea or enter a plea for Jones renders this void.

As noted in Ludlum, supra, the failure to enter a plea of not guilty could have been cured by the entry of such by the circuit judge at any time before the jury retired. The responsibility to enter this upon the record falls upon the circuit judge.

On trial de novo, the circuit judge has the duty to ensure that the defendant pleads to the solicitor’s complaint or to enter a plea for him if he or she stands mute after hearing the complaint read.

Inasmuch as the finding of guilt by the jury in circuit court is without legal force or effect, the accused was not entitled to be discharged; rather, the accused is entitled only to a new trial.

The peremptory writ of mandamus will issue, commanding the circuit judge to set aside those aspects of his order, judgment and decree of February 4, 1982, which are inconsistent with this opinion. The peremptory writ is hereby granted.

WRIT GRANTED.

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

BARRON, J., concurs in result.


text:
    Oscar W. NILSON, Jr. v. STATE.
    2 Div. 326.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.

      Laird R. Jones of Argo & Enslen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to one indictment charging unlawfully obtaining a controlled substance by the use of a forged prescription, Alabama Code 1975, Section 20-2-70, and was sentenced to thirteen years’ imprisonment.

The defendant also pled guilty to escape in the second degree, Section 13A-10-32 (Amended 1977), and was sentenced as an habitual offender to thirteen years’ imprisonment (to run concurrent with the drug conviction) on recommendation of the State. Three remaining cases were nol prossed on recommendation of the State. In each case the defendant waived a sentencing hearing.

On appeal, the defendant argues that his plea of guilty to the indictment charging escape was not voluntarily and intelligently entered because there is no showing in the record that he was represented by counsel at his prior convictions or that he knowingly waived the right to counsel at that time. Under Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), a prior conviction cannot be used to enhance punishment unless the accused was represented by counsel or waived that right.

The record shows that the defendant admitted the two prior convictions:

“THE COURT: ... (I)t is the understanding of this Court that you have been convicted of two prior felonies; is that correct?
“MR. NILSON: Yes, sir. In the State of Louisiana.”

Under Donahay v. State, 287 Ala. 716, 255 So.2d 599 (1971), this case is due to be affirmed.

“In our opinion, when a defendant through his own counsel, freely admits his conviction of a crime, unless he qualifies his admission, he admits all of the ingredients needed to prove the conviction of the crime . . .. ”
******
“By his act of admitting the prior conviction, we think the defendant relieved the State from the burden of proving any of the matters that ordinarily would attend establishing the prior conviction.”
******
“Were it otherwise, an admission of prior conviction, made with undisclosed qualifications, would result in the nullification of the admission. The action would be pointless, unless designed to ensnare the opposition, which proposition we do not entertain in this case. We think there is a difference between there being a deficiency in the required preliminary proof as a foundation for the introduction of a certified copy of a record of conviction, as where the record is silent as to the presence of legal counsel, and an admission by the defendant of the fact of his prior conviction. The admission would seem to us to supply ail of the necessary requirements for this area of proof in the case. Donahay, 287 Ala. at 719-19, 255 So.2d 599 (emphasis added).

See also Douglas v. State, 406 So.2d 1051, 1052 (Ala.Cr.App.), cert. denied, Ex parte Douglas, 406 So.2d 1053 (Ala.1981); Thompson v. State, 405 So.2d 717, 720 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 405 So.2d 721 (Ala.1981); Moseley v. State, 398 So.2d 357, 359 (Ala.Cr.App.), cert. denied, Ex parte Moseley, 398 So.2d 359 (Ala.1981). This is to be contrasted to and compared with the case of a silent record. See Hollingsworth v. State, 410 So.2d 133 (Ala.Cr.App.), cert. quashed, 410 So.2d 134 (Ala.1981).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Carolyn GOODMAN v. STATE.
    3 Div. 460.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Richard D. Shinbaum, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   CLARK, Retired Circuit Judge.

This is an appeal from a denial of a petition for writ of error coram nobis, which petitioner filed soon after the denial by the Alabama Supreme Court of her application for writ of certiorari to the Court of Criminal Appeals, which had affirmed her conviction of receiving, retaining, or disposing of stolen property. Goodman v. State, Ala.Cr.App., 401 So.2d 208, cert. denied, 401 So.2d 213 (1981). As explained in the opinion on that appeal, the indictment was for receiving stolen property in the first degree and the conviction was for receiving stolen property in the second degree by reason of the fact that the evidence showed that the value of the property alleged to have been stolen did not exceed the $1,000.00 required as the minimum value of property to support a charge of receiving stolen property in the first degree. Code of Alabama 1975, § 13A-8-17.

The basic allegation in the coram nobis petition was that defendant’s “conviction was based in part on the testimony of Witness Chris Hobbs, said testimony being perjured and false” and that the “State of Alabama had knowledge of the perjured testimony at the time of the trial.”

As supportive evidence for the crucial allegations in the petition as to the charge of “perjured and false” testimony offered by the named witness, appellant relies upon what some witnesses on the hearing of the petition testified as to what the witness Chris Hobbs said to Connie Sue Fuller soon after Chris Hobbs had testified on the trial of the case. Connie Sue Fuller testified on the hearing of the coram nobis petition as follows:

“I was sitting on the bench and he walked up to me and he said — let me get it exact — he says, T hope I didn’t hurt Carol by testifying against her.’ I said, ‘Well, if you told the truth, you didn’t.’ I said, ‘You did tell the truth, didn’t you?’ He said, ‘No, I’m not getting into it any more than I have to.’ ”

There was evidence on the hearing of the coram nobis petition that at least two law enforcement officers of the City of Montgomery, who were attending the trial as witnesses, reported to the prosecuting attorney what they understood Chris Hobbs said to Connie Sue Fuller in substantially the language given by Connie Sue Fuller. The information did not come to the attention of the court during the trial of the case.

Chris Hobbs did not testify on the hearing of the petition for writ of error coram nobis.

The law has been clearly established on the issue now presented. Summers v. State, Ala.Cr.App., 366 So.2d 336, 341-343 (1978), cert. denied, 366 So.2d 346; King v. State, Ala.Cr.App., 349 So.2d 620, 621 (1977), cert. denied, 349 So.2d 621, with citations of authorities, suffice, we think.

In King v. State, supra, at 349 So.2d 621, we find:

“In Ex parte Brannan, 41 Ala.App. 500, 139 So.2d 349 and Horsley v. State, 42 Ala.App. 567, 172 So.2d 56, this Court held that to obtain coram nobis relief from a conviction on the ground of perjured testimony the testimony must be shown to have been knowingly used by the prosecution and the convict must not have been negligent.”

In Summers v. State, supra, at 366 So.2d 343, it is stated:

“In order to obtain a new trial on the basis of the use of perjured testimony by the State, a defendant must allege and prove (1) that the testimony was perjured; (2) that the perjured testimony was on a matter of such importance that the truth would have prevented a conviction. Ex parte Reliford, 37 Ala.App. 697, 75 So.2d 90 (1954); (3) that the prosecution had knowledge that the testimony was perjured; and (4) that the defendant was not negligent in discovering the falsehood and in raising the issue ...”

The trial judge was in a better position than the court on appeal to determine the strength of the evidence on the hearing on the coram nobis petition that Mr. Hobbs had committed perjury as a witness for the State on the trial of the case. The judge on the hearing of the petition was the judge who presided on the trial of the case. There is some difference between the language of one witness who testified on the hearing as to what Chris Hobbs had said to her and the testimony of the only other witness on the hearing as to what he had heard Chris Hobbs say. One witness testified that in answer to her question to Hobbs, “You did tell the truth, didn’t you?” Hobbs replied, “No, I’m not getting into it any more than I have to.” The other witness testified that he heard Hobbs say, “That he had to lie on the stand.” The trial judge could well have determined that the ambiguity of one witness as to what Hobbs had said and the vagueness of the paraphrase of the other witness as to what Hobbs had said combined to keep the evidence from being strong enough to convince, the trial judge that Hobbs had sworn falsely on the trial. Neither witness as to what Hobbs had said testified on the hearing of the petition that any part of Hobbs’ testimony on the trial was untrue in his testimony. His testimony on the trial consisted of approximately ten transcript pages.

There is no contention that the prosecution had any knowledge or any reason to believe until after Hobbs had testified that any of his testimony was false. The District Attorney at the time of the trial, who testified on the hearing on the call of the petitioner, testified:

“Richard, I don’t recall whether or not I talked to them about that during the trial or after the trial. At some point, that allegation came to my attention.
“Q. And did they tell you that one of the witnesses at trial had advised that he had perjured himself?
“A. Richard, I recall that that allegation was made. I don’t know who brought it to my attention or when it was brought to my attention. I know the allegation was made.”

The police officer who heard the statement said:

“We talked with the prosecutor — I don’t recall if it was during the trial or after the trial ...”

The police officer, who was with the officer who overheard the statement of Hobbs, testified on the hearing that the matter was called to the attention of the prosecutor. As to the time it was called to the attention of the prosecutor, the witness said:

“As my recollection is, it was during the course of the trial. At what point, I don’t remember, no, sir.”

Whatever evidence there was from which it could be inferred that either of the first two elements of a valid ground for a petition for writ of error coram nobis pertaining to the alleged perjury that met the requirement of either the first or the third element set forth above in the statement quoted from Summers v. State, supra, was weak and inconclusive. There was no evidence that provided the second element set forth in the cited case, that the alleged perjured testimony “was on a matter of such importance that the truth would have prevented a conviction.”

The trial court was not in error in denying the petition; its judgment 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.

      . The name “Carol” is found at times in the transcript and the record, particularly on the first page of the record on appeal, instead of the name “Carolyn,” the name usually stated in the transcript and record proper as the given name of the appellant.


text:
    Willie McCLOUD v. STATE.
    4 Div. 929.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.

      R. Bruce Hall of Conway & Hall, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Murder in the first degree; life.

The State’s evidence established that on October 13, 1978, appellant and the victim were having an argument over money when the appellant pulled a pistol, fired at the victim, and fled the scene.

In December, 1978, the Houston County grand jury indicted appellant for first degree murder but Houston County authorities were unable to locate appellant to effect the arrest warrant. Sometime before April 9,1979, investigators learned that appellant was incarcerated at the Federal Correctional Institute in Atlanta. A de-tainer was lodged against appellant on that date.

On January 15, 1981, officials at the Atlanta federal prison informed Houston County authorities that appellant had a presumptive parole date of February 25, 1981, and inquired whether they intended to assume custody of him before that. Appellant was subsequently returned to Houston County and arraigned on the murder charge June 3, 1981.

On June 12,1981, appellant filed a motion to dismiss the indictment alleging that he had been denied the right to a speedy trial. The motion was denied and appellant was tried and convicted on June 22, 1981. He claims that the trial court erred by denying his motion to dismiss the indictment because he was not given a speedy trial.

In order to resolve this issue we must assess (1) the length of the delay, (2) the reason for the delay, (3) the accused’s assertion of his right, and (4) the prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Appellant’s right to a speedy trial attached (if not on the date of his indictment) at least on April 9,1979, the date a detainer was lodged against him in favor of the Houston County district attorney. See Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980). The length of the delay, therefore, was approximately twenty-six and one-half months.

The reason for the initial delay was due in part to appellant’s flight from the State and the resulting inability of Houston County authorities to locate him. However, once local officials determined that he was incarcerated in the federal prison at Atlanta, they were under a constitutional duty to make a “diligent, good-faith effort” to secure him for prompt trial. Prince v. Alabama, 507 F.2d 693 (5th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 147, 46 L.Ed.2d 108 (1975); McCallum v. State, 407 So.2d 865 (Ala.Cr.App.1981). The record before us does not reveal any effort on the part of the State, between April 9, 1979, and January 15, 1981, to return appellant to Alabama for trial. In our judgment, therefore, the reasons for the delay rest equally with the appellant and with the State.

The record also discloses, however, no demand by appellant during this period for a trial. In fact, appellant’s first and only assertion of his right to a speedy trial came ten days before his actual trial, and twenty-six months after he learned that a detainer was placed against him because of a first degree murder charge in Houston County. The third factor is thus not in appellant’s favor.

Finally, at the hearing on appellant’s motion to dismiss alleging denial of a speedy trial, he offered no evidence of prejudice due to the delay. He stated that he was “up for parole” from the Atlanta federal penitentiary but he did not assert that the pending murder charge in Alabama damaged his chances for parole or deprived him of any other benefits to which he might have been entitled. In short, we do not believe that appellant demonstrated any prejudice from the delay. We hold that he was not denied his constitutional right to a speedy trial.

We have searched the record for error and have found none. Therefore, the judgment of conviction by the Houston Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.