author: BOWEN, Judge.

text:
    Glenn DOLVIN v. STATE.
    8 Div. 235.
    Court of Criminal Appeals of Alabama.
    Aug. 21, 1979.
    Rehearing Denied Oct. 2, 1979.

      William L. Chenault, III of Chenault & Chenault, Travis W. Hardwick of Hardwick, Knight & Belser, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

On August 16, 1970, Charles Ray Lovett disappeared from his home in Decatur. His skeletonized remains ' were unearthed in Sanford, Florida, on December 9,1977. The defendant was indicted and convicted for the first degree murder of Lovett. Because the evidence is insufficient to connect the defendant with the killing of Lovett, we reverse that conviction.

On appeal the State adopts the statement of facts set forth in defendant’s appellate brief as “substantially correct”. In arguing the issue on the insufficiency of the evidence the State recites those facts which it alleges support the inference of the defendant’s guilt. The State’s own factual statement reveals the glaring insufficiency of the evidence to connect the defendant with the crime. From the State’s appellate brief:

“The prosecution began its case by proving a motive for the murder. Morgan County Circuit Clerk Cleo Teague took the stand and testified that in March, 1970 Appellant was indicted for grand larceny of Charles Ray Lovett’s automobile; Lovett was listed on the back of the indictment as a witness for the State and Lovett’s address was also shown on the indictment. Moreover, at the time of Lovett’s disappearance the grand larceny charge against Appellant was still pending.
“The testimony of J. R. Garrett showed that Appellant was in the State of Alabama during the months of July-August, 1970. In early August Garrett observed Appellant proceeding with a piece of paper in his hand to Freemont Street where Lovett resided; Appellant glanced up and down the street as if trying to ascertain precisely where Lovett lived, then turned and left.
“Rickey Hames stated that on August 16, 1970, the day of Lovett’s disappearance, Appellant came to a service station and asked for directions to Freemont Street. Hames showed Appellant a city map. Hames further stated that Freemont Street and the service station were in the same neighborhood.
“Prior testimony of James Howell Legg, who was deceased at the time of the murder trial, was also introduced. Legg stated that he was at his service station on August 16, 1970, and that he saw the Appellant there between 4-6 p. m. Legg never wavered in his certainty that it was Appellant he had seen that day.
“Several of the victim’s neighbors were called to the witness stand. Mr. Sherlon Nagy was the next-door neighbor of the Lovetts and last saw him on August 16, 1970, at 8:30 p. m.
“Mrs. Betty Third stated that after she had gone to bed around 10:30 p. m. on August 16, 1970, she heard someone shout, ‘help, help, let me go’ and there was a loud noise. Mrs. Third looked out the window and saw a Volkswagen moving slowly past the Lo-vett residence and a man walking around her house. On cross-examination Mrs. Third testified that she heard a loud noise which could have been a car backfiring. Mrs. Third was unfamiliar with guns.
“Mr. Henry David Hardiman heard a loud noise on August 16, 1970, sometime after 9:30 p. m. He woke up and looked out the window. Although he did not see anyone, he noticed that his barbecue grill had been knocked over. Mr. Hardiman did not know whether or not the loud noise he heard was a shotgun blast.
“Miss Debbie Garrett testified that on August 16,1970, she lived on Freemont Street and her mother worked at a nearby convenience store. On the night in question Miss Garrett was with her mother at the store and at around 10:30 p. m. she went outside the store to lock up the ice machine. At this time Miss Garrett saw a woman driving a dark green Volkswagen with its headlights off. Miss Garrett got a magazine from the store and sat in her mother’s car. During this time she watched the woman and saw her make two trips to Freemont Street. The second time the woman sat there a minute, then Miss Garrett heard a shout. The woman then drove down the back alley at a fast speed. The automobile was out of Miss Garrett’s sight for around ten seconds, then she saw it again.- This time the headlights were on and Miss Garrett saw two additional men in the car with the woman. One man was slumped down in the seat and the other had his back to Miss Garrett. Miss Garrett identified the driver of the automobile as Sue Dolvin, wife of the Appellant.
“The victim’s wife then took the stand. She talked to her husband by telephone around 10:00 p. m. on August 16, 1970. That was the last she ever heard from the victim.
“After talking to her husband Mrs. Graves went outside the Dairy Queen to take out some trash. When she opened the door she saw a green Volkswagen parked almost directly in front of the door. A man was in the driver’s seat and a woman was on the passenger side. The woman stared at her and was identified as Mrs. Sue Dolvin.
“Mrs. Graves further testified that the victim had never had any dental work but that he had a dark stain on his bottom teeth. To her knowledge he had a perfect set of teeth and had had no fillings or tooth extractions. “Mr. Robert E. Hancock, of the Alabama Department of Public Safety testified that in his investigation of the victim’s disappearance he went to the Dolvins’ residence in Key West, Florida. Outside he observed an old green Volkswagen with an application for replacement tag stuck to the rear window. A Florida search warrant was obtained and a brown paper bag and map were taken from the luggage compartment of Mrs. Dolvin’s car. The items were sent off to the FBI laboratory in Washington, D. C.
“Mr. Alison Sims of the FBI stated that he tested the bag and map for blood stains. Although he was able to detect human blood stains on both items, the particular blood type could not be determined.
“Mr. Robert Quackenbos stated that he managed the trailer park where the Dolvins lived. In August, 1970, Quackenbos lived next door to the Dolvins. Although his bedroom was located next to the road and he was being very watchful because of vandalism problems, at no time did he hear the Dolvins go in their trailer during the weekend of August 16, 1970. Moreover, the Volkswagen was gone the entire weekend. The Dolvins’ daughter stayed at the Quack-enbos’ trailer during part of that weekend.
“Florida State Trooper Clarence Lee Simpson was on duty in Ocala, Florida, in the early morning hours of August 18, 1970. Around 1:00 a. m. Sue Dolvin came in the Highway Patrol Station and signed a lost tag form. Mrs. Dolvin had smudges on her and her fingernails and clothes were dirty. She appeared as if she had been camping in the woods.
“David Sandlin was the Sheriff of Morgan County in August, 1970. He drove to Key West, Florida, after Appellant waived extradition in order to return Appellant to Morgan County, Alabama. Sandlin noticed that Appellant had a black eye.
“John Cardi, a construction worker in Sanford, Florida, discovered some bones at a construction site in December, 1977. Police investigators were called to the scene.
“Chad Barton, an investigator with the Sanford, Florida, Sheriff’s Department investigated the skeletal remains discovered by Cardi. A shotgun pellet and wadding were found in the remains; sixteen pellets believed to be lead in content were also removed from the chest cavity.
“Barton personally flew the skeletal remains to Dr. Joseph H. Davis, the Chief Medical Examiner in Miami, Florida.
“Dr. Davis examined the remains and determined them to be those of a Caucasian male in his mid-twenties at the time of death. It was Davis’ opinion that the victim had not died of suicide or natural or accidental causes. Davis stated that he would classify the victim as a probable homicide as a result of a gunshot wound.
“The bones, had been buried from 1-10 years.
“Dr. Richard Souviron, a forensic odontologist, assisted Dr. Davis in examining the teeth found along with the skeleton. Dr. Souviron determined that the teeth were those of a Caucasian male between the ages of twenty-five and thirty-five. The teeth appeared to be perfect, with no cavities, fillings or apparent orthodontal work. Also noted was a dark stain along the gum line. Souviron stated that a set of perfect teeth was very rare.
“Souviron was given photographs of the victim and enlargements were made. Comparing the remains with the photograph Souviron found the formation and angle of the lower jaw to be consistent with the victim’s. Souviron further found the upper jaw to be consistent with the victim’s.
“In sum, based on fourteen points of comparison, Souviron found nothing inconsistent between the photographs and the remains of the victim and it was his opinion that the skeletal remains were indeed those of Charles Ray Lovett.
“From the foregoing summary of evidence put on by the State there can be no question but that sufficient evidence was produced to send the case to the jury. First, Appellant clearly had a motive for killing Lovett in order to prevent him from testifying against him on a criminal charge.
“Furthermore, before Lovett disappeared Appellant was seen glancing around Freem-ont Street with a piece of paper in his hand.
“More importantly, on the afternoon of Lo-vett’s disappearance two eye witnesses placed Appellant at a service station a mile from Lovett’s home and Appellant specifically asked one of the attendants for directions to Freemont Street.
“Moreover, the victim’s wife pinned down Lovett’s disappearance to between 10:00-11:00 p. m. on August 16, 1970. At around 10:30 p. m. Mrs. Betty Third, a neighbor, heard a voice crying, ‘Help, help, let me go’, then heard a loud noise. When she looked out the window she saw an automobile of the same make as Appellant’s wife’s car moving slowly past the Lovett residence.
“Another neighbor, Henry David Hardi-man, also heard a loud noise on the night in question around 10:30 p. m. Neither Mrs. Third nor Hardiman knew if the loud noise was a gunshot.
“Further evidence against Appellant was provided by Miss Debbie Garrett, who on the night of the disappearance observed Appellant’s wife driving around Freemont Street with no headlights on and then speeding back down there where a cry for help was heard. At this point Mrs. Dolvin took off in a hurry and when she passed by Miss Garrett, there were two other men in the car, one of whom was slumped over.
“Further evidence of the joint participation of the Dolvins was provided by the victim’s wife, who observed Sue Dolvin and a man parked in front of the Dairy Queen where Mrs. Graves worked. Although Mrs. Dolvin stared at her, Mrs. Graves was unable to see the man’s face clearly.
“Later items stained with human blood were found in the automobile owned by Mrs. Dolvin.
“When Appellant and his wife were later seen by law enforcement officials, Appellant had a black eye and Mrs. Dolvin looked as though she had gotten dirty in the woods.”

In a homicide prosecution circumstantial evidence alone may be sufficient to prove the accused’s commission of or participation in the killing. Eyewitness testimony is not required. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978); cert. denied, 368 So.2d 877 (Ala.1979). The test of the sufficiency of circumstantial evidence is whether the circumstances as proved point to guilt and exclude any reasonable hypothesis except that of guilt. Cumbo, 368 So.2d at 875.

While motive is always a proper subject of proof, Carey v. State, 361 So.2d 1176 (Ala.Cr.App.1978), proof of motive alone cannot support a conviction for murder, although its presence, along with other incriminating factors, may become particularly significant where the evidence is circumstantial.

The mere presence of a . person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime. Kimmons, 343 So.2d 542 (Ala.Cr.App.1977).

Here the State only proved that the defendant was in the victim’s general neighborhood, that the defendant sought directions to the street on which the victim resided, and that the defendant had a possible motive for wanting to kill the victim. The defendant was never connected in any way with his wife and there was absolutely no evidence of any conspiracy between the defendant and his wife to kill the victim. The record discloses the clear and obvious absence of any circumstances from which the criminal agency of the defendant could be reasonably inferred and which would exclude any reasonable inference consistent with his innocence.

The issue of the insufficiency of the evidence was properly presented at trial and on motion for new trial. Our review of the evidence leaves no doubt that the defendant was convicted on speculation, suspicion, and conjecture. The judgment of conviction is therefore reversed. Under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the judgment must be rendered.

REVERSED AND RENDERED.

All Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte State of Alabama ex rel. Attorney General. (In re Glenn DOLVIN v. STATE of Alabama).
    79-49.
    Supreme Court of Alabama.
    Sept. 12, 1980.
    Rehearing Denied Oct. 3, 1980.

      Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for petitioners.
    William L. Chenault, III, and Travis W. Hardwick, Decatur, for respondents.
   MADDOX, Justice.

On August 16, 1970, Charles Ray Lovett disappeared from his home in Decatur. Skeletonized remains were unearthed in Sanford, Florida on December 6, 1977. These remains were subsequently determined to be consistent with Lovett by comparisons made by a forensic odontologist, Dr. Richard Souviron. The defendant, Glenn Dolvin, was indicted and convicted for the first degree murder of Lovett. The Court of Criminal Appeals reversed that conviction, finding that the evidence was insufficient “to connect the defendant with the killing of Lovett.... ” Dolvin v. State, 391 So.2d 129 (Ala.Cr.App.1979). The Court of Criminal Appeals, in its opinion, set out the evidence presented by the State to connect the defendant with the crime, as follows:

The prosecution began its case by proving a motive for the murder. Morgan County Circuit Clerk Cleo Teague took the stand and testified that in March, 1970 Appellant was indicted for grand larceny of Charles Ray Lovett’s automobile; Lovett was listed on the back of the indictment as a witness for the State and Lovett’s address was also shown on the indictment. Moreover, at the time of Lovett’s disappearance the grand larceny charge against Appellant was still pending.

The testimony of J. R. Garrett showed that Appellant was in the State of Alabama during the months of July-August, 1970. In early August Garrett observed Appellant proceeding with a piece of paper in his hand to Freemont Street where Lovett resided; Appellant glanced up and down the street as if trying to ascertain precisely where Lovett lived, then turned and left.

Rickey Hames stated that on August 16, 1970, the day of Lovett’s disappearance, Appellant came to a service station and asked for directions to Freemont Street. Hames showed Appellant a city map. Hames further stated that Freemont Street and the service station were in the same neighborhood.

Prior testimony of James Howell Legg, who was deceased at the time of the murder trial, was also introduced. Legg stated that he was at his service station on August 16, 1970, and that he saw the Appellant there between 4-6 p. m. Legg never wavered in his certainty that it was Appellant he had seen that day.

Several of the victim’s neighbors were called to the witness stand. Mr. Sherlon Nagy was the next-door neighbor of the Lovetts and last saw him on August 16, 1970, at 8:30 p. m.

Mrs. Betty Third stated that after she had gone to bed around 10:30 p. m. on August 16, 1970, she heard someone shout, “help, help, let me go” and there was a loud noise.

Mrs. Third looked out the window and saw a Volkswagen moving slowly past the Lo-vett residence and a man walking around her house. On cross-examination Mrs. Third testified that she heard a loud noise which could have been a car backfiring. Mrs. Third was unfamiliar with guns.

Mr. Henry David Hardiman heard a loud noise on August 16, 1970, sometime after 9:30 p. m. He woke up and looked out the window. Although he did not see anyone, he noticed that his barbecue grill had been knocked over. Mr. Hardiman did not know whether or not the loud noise he heard was a shotgun blast.

Miss Debbie Garrett testified that on August 16, 1970, she lived on Freemont Street and her mother worked at a nearby convenience store. On the night in question Miss Garrett was with her mother at the store and at around 10:30 p. m. she went outside the store to lock up the ice machine. At this time Miss Garrett saw a woman driving a dark green Volkswagen with its headlights off. Miss Garrett got a magazine from the store and sat in her mother’s car. During this time she watched the woman and saw her make two trips to Freemont Street. The second time the woman sat there a minute, then Miss Garrett heard a shout. The woman then drove down the back alley at a fast speed. The automobile was out of Miss Garrett’s sight for around ten seconds, then she saw it again. This time the headlights were on and Miss Garrett saw two additional men in the car with the woman. One man was slumped down in the seat and the other had his back to Miss Garrett. Miss Garrett identified the driver of the automobile as Sue Dolvin, wife of the Appellant.

The victim’s wife then took the stand. She talked to her husband by telephone around 10:00 p. m. on August 16, 1970. That was the last she ever heard from the victim.

After talking to her husband Mrs. Graves (sic) went outside the Dairy Queen to take out some trash. When she opened the door she saw a green Volkswagen parked almost directly in front of the door. A man was in the driver’s seat and a woman was on the passenger side. The woman stared at her and was identified as Mrs. Sue Dolvin. Mrs. Graves (sic) further testified that the victim had never had any dental work but that he had a dark stain on his bottom teeth. To her knowledge he had a perfect set of teeth and had had no fillings or tooth extractions.

Mr. Robert E. Hancock of the Alabama Department of Public Safety testified that in his investigation of the victim’s disappearance he went to the Dolvins’ residence in Key West, Florida. Outside he observed an old green Volkswagen with an application for replacement tag stuck to the rear window. A Florida search warrant was obtained and a brown paper bag and map were taken from the luggage compartment of Mrs. Dolvin’s car. The items were sent off to the FBI laboratory in Washington, D. C.

Mr. Alison Sims of the FBI stated that he tested the bag and map for blood stains. Although he was able to detect human blood stains on both items, the particular blood type could not be determined.

Mr. Robert Quackenbos stated that he managed the trailer park where the Dolvins lived. In August, 1970, Quackenbos lived next door to the Dolvins. Although his bedroom was located next to the road and he was being very watchful because of vandalism problems, at no time did he hear the Dolvins go in their trailer during the weekend of August 16, 1970. Moreover, the Volkswagen was gone the entire weekend. The Dolvins’ daughter stayed at the Quack-enbos’ trailer during part of that weekend.

Florida State Trooper Clarence Lee Simpson was on duty in Ocala, Florida, in the early morning hours of August 18, 1970. Around 1:00 a. m. Sue Dolvin came in the Highway Patrol Station and signed a lost tag form. Mrs. Dolvin had smudges on her and her fingernails and clothes were dirty. She appeared as if she had been camping in the woods.

David Sandlin was the Sheriff of Morgan County in August, 1970. He drove to Key West, Florida, after Appellant waived extradition in order to return Appellant to Morgan County, Alabama. Sandlin noticed that Appellant had a black eye.

John Cardi, a construction worker in Sanford, Florida, discovered some bones at a construction site in December, 1977. Police investigators were called to the scene.

Chad Barton, an investigator with the Sanford, Florida, Sheriff’s Department investigated the skeletal remains discovered by Cardi. A shotgun pellet and wadding were found in the remains; sixteen pellets believed to be lead in content were also removed from the chest cavity.

Barton personally flew the skeletal remains to Dr. Joseph H. Davis, the Chief Medical Examiner in Miami, Florida.

Dr. Davis examined the remains and determined them to be those of a Caucasian male in his mid-twenties at the time of death. It was Davis’ opinion that the victim had not died of suicide or natural or accidental causes. Davis stated that he would classify the victim as a probable homicide as a result of a gunshot wound.

The bones had been buried from 1-10 years. Dr. Richard Souviron, a forensic odontologist, assisted Dr. Davis in examining the teeth found along with the skeleton. Dr. Souviron determined that the teeth were those of a Caucasian male between the ages of twenty-five and thirty-five. The teeth appeared to be perfect, with no cavities, fillings or apparent orthodontal work. Also noted was a dark stain along the gum line. Souviron stated that a set of perfect teeth was very rare.

Souviron was given photographs of the victim and enlargements were made. Comparing the remains with the photograph Souviron found the formation and angle of the lower jaw to be consistent with the victim’s. Souviron further found the upper jaw to be consistent with the victim’s.

In sum, based on fourteen points of comparison, Souviron found nothing inconsistent between the photographs and the remains of the victim and it was his opinion that the skeletal remains were indeed those of Charles Ray Lovett.

From the foregoing summary of evidence put on by the State there can be no question but that sufficient evidence was produced to send the case to the jury. First, Appellant clearly had a motive for killing Lovett in order to prevent him from testifying against him on a criminal charge. Furthermore, before Lovett disappeared Appellant was seen glancing around Freem-ont Street with a piece of paper in his hand.

More importantly, on the afternoon of Lo-vett’s disappearance two eye witnesses placed Appellant at a service station a mile from Lovett’s home and Appellant specifically asked one of the attendants for directions to Freemont Street.

Moreover, the victim’s wife pinned down Lovett’s disappearance to between 10:00-11:00 p. m. on August 16, 1970. At around 10:30 p. m. Mrs. Betty Third, a neighbor, heard a voice crying, “Help, help, let me go,” then heard a loud noise. When she looked out the window she saw an automobile of the same make as Appellant’s wife’s car moving slowly past the Lovett residence.

Another neighbor, Henry David Hardiman, also heard a loud noise on the night in question around 10:30 p. m. Neither Mrs. Third nor Hardiman knew if the loud noise was a gunshot.

Further evidence against Appellant was provided by Miss Debbie Garrett, who on the night of the disappearance observed Appellant’s wife driving around Freemont Street with no headlights on and then speeding back down there where a cry for help was heard. At this point Mrs. Dolvin took off in a hurry and when she passed by Miss Garrett, there were two other men in the car, one of whom was slumped over. Further evidence of the joint participation of the Dolvins was provided by the victim’s wife, who observed Sue Dolvin and a man parked in front of the Dairy Queen where Mrs. Graves (sic) worked. Although Mrs. Dolvin stared at her, Mrs. Graves (sic) was unable to see the man’s face clearly.

Later items stained with human blood were found in the automobile owned by Mrs. Dolvin.

When Appellant and his wife were later seen by law enforcement officials, Appellant had a black eye and Mrs. Dolvin looked as though she had gotten dirty in the woods.

The Court of Criminal Appeals correctly held that circumstantial evidence alone may be sufficient to prove the accused’s commission of or participation in the killing, but concluded that the evidence presented by the State was insufficient.

The Court of Criminal Appeals correctly cited Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977), as standing for the proposition that “the mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime.” That court omitted, however, to state that if presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tend to connect the accused with the commission of the crime, then the jury may find the accused guilty. In Kimmons, the court said:

A more proper and correct statement of the rule is that the fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may, in conjunction with other facts and circumstances, sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice.

This Court has stated the rule as follows:

Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty. Lowe v. State, 90 Fla. 255, 105 So. 829 (1925). Circumstantial evidence is said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts. Lowe, supra.

White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975).

In reviewing the sufficiency of the evidence, we think the Court of Criminal Appeals did not correctly apply the test set out in Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), although we note that the court cited that case. In Cumbo, the court said:

In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).
(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):
Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have ex-eluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thorn-berry’s words, * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude. Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied).
The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.
See also Blair v. State, 18 Ala.App. 615, 93 So. 45 (1922). Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919); see also Evans v. State, 39 Ala.App. 404, 408, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).
Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury. Hopson v. State, 352 So.2d 500, 502 (Ala.Cr.App.), affirmed, 352 So.2d 506 (Ala.1976). However, circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence.
The humane provisions of the law are, that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires. Ex parte Acree, 63 Ala. 234 (1879).
Guilt is not established by circumstantial evidence unless the facts relied on are such that it is the only conclusion fairly to be drawn from them. Fuquay v. State, 22 Ala.App. 243, 114 So. 892 (1927). If all the material circumstances in evidence point to guilt and exclude any reasonable hypothesis except that of guilt a conviction is warranted. Pruett v. State, 33 Ala.App. 491, 495, 35 So.2d 115 (1948).

We have examined the facts presented by the State, as outlined in the opinion of the Court of Criminal Appeals, and we have compared those facts with the wife’s case. Sue Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979) aff’d 391 So.2d 677 (Ala.1980).

The Court of Criminal Appeals justifies its holding that the evidence was insufficient by stating:

Here the State only proved that the defendant was in the victim’s general neighborhood, that he defendant sought directions to the street on which the victim resided, and that the defendant had a possible motive for wanting to kill the victim. The defendant was never connected in any way with his wife and there was absolutely no evidence of any conspiracy between the defendant and his wife to kill the victim. The record discloses the clear and obvious absence of any circumstances from which the criminal agency of the defendant could be reasonably inferred and which would exclude any reasonable inference consistent with his innocence.

With the exception of the fact that the wife was placed in the vicinity of the crime at a point in time which more closely approximated the time of the commission of the crime than was her husband, and the fact that she was seen in the trooper station in Florida and her husband was not seen there, the inferences which could be drawn from the evidence by the jury in the two cases are the same. Yet, the Court of Criminal Appeals found that the evidence was sufficient in the Sue Dolvin case, but insufficient in this case.

We need not list again all the evidence produced by the State to connect the accused with the crime, but we are convinced that the evidence, viewed “in a light most favorable to the prosecution,” was sufficient to allow the jury to reasonably conclude that the evidence excluded every reasonable hypothesis except that of guilt, the standard stated in Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978).

No person should be convicted, whether on circumstantial evidence or direct evidence, unless it is shown beyond a reasonable doubt that he is guilty; on the other hand, if the State meets its burden of proof, then a jury may find the defendant guilty.

The Court has said that the determination of whether the evidence is sufficient to justify the conviction is within the province of the jury as the finder of fact. In McDowell v. State, 238 Ala. 101, 189 So. 183 (1939), the Court opined:

The corpus delicti is a fact, proof of which may be made by circumstantial evidence. If there is a reasonable inference deducible from the evidence of its existence, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. Martin v. State, [125 Ala. 64, 28 So. 92] supra; Lewis v. State, 220 Ala. 461, 125 So. 802; Wilson v. State, 191 Ala. 7, 67 So. 1010; Newell v. State, 115 Ala. 54, 22 So. 572.

Upon consideration of the facts set out in the opinion of the Court of Criminal Appeals, and applying the correct legal principles to that evidence, we conclude that the decision of the jury that the circumstantial evidence was sufficient to justify a conviction should not have been overturned by the Court of Criminal Appeals in this case. The decision of the Court of Criminal Appeals is, therefore, due to be reversed and the cause remanded to that court.

REVERSED AND REMANDED.

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

BLOODWORTH and ALMON, JJ., not sitting.


text:
    Glenn DOLVIN v. STATE.
    8 Div. 235.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Rehearing Denied Nov. 25, 1980.
   After Remandment

BOWEN, Judge.

This case is affirmed on authority of the Alabama Supreme Court’s decision in Dolvin v. State, 391 So.2d 133.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James W. PAYNE v. STATE.
    3 Div. 159.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.
    Vaughan H. Robison of Robison & Belser, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was tried on an indictment charging him with murder in the first degree of Clyde Davis, “by shooting him with a pistol.” A jury found him guilty of murder in the second degree and fixed his punishment at imprisonment for fifteen years, and the court sentenced him accordingly.

As we find it necessary to reverse the judgment by reason of a single erroneous error of the able and distinguished trial judge, we deem it appropriate to use as a factual background the Statement of Facts appearing in appellee’s brief, even though to some extent there is a variance between it and appellant’s brief. Appellee’s complete statement of the facts contained in its brief under the caption STATEMENT OF THE FACTS is as follows:

“Early in the morning of April 15, 1979, the Appellant and three other persons, Larry Garner, William J. Venable and Phil Payne, were riding around in Appellant’s automobile. Around 2 a.m. they drove to Gowan’s Truck Stop and parked in the front.
“The purpose of going to the truck stop was to advise the persons who worked there that Appellant’s service station would be closed on Easter day but that the service vehicles would be available. Upon arriving at the truck stop, Garner went inside to give this information to the people there. The others remained in the car.
“While sitting in the car, a conversation took place on the C.B. radio between the Appellant and a truck driver parked at the truck stop. Venable, a witness for the State, testified that the first time he paid any attention to the conversation the truck driver was ‘talking back to Mr. Payne and said words to the effect that if he would bring his white MF. a_ _ around front, he would set it on fire.’ He then heard Appellant say ‘I’m fixing to show my G.d d_a...’
“Another witness for the State, a police officer, John Wilson, testified that he had heard a conversation between Appellant and another party on Channel 19 on his C.B. radio. He heard Appellant call the truck driver a ‘black son of a b-’ and the truck driver responded ‘you white honky M.F.’ He recalled the Appellant asking the truck driver if he could meet him some where. He said the truck driver stated that ‘he had a weapon in the truck and that if Mr. Payne came out there that he would shoot him.’ and Appellant responded that ‘if the truck driver would come out on the street he would in return shoot him.’ He heard the other party say that he was in a red Wiley Sanders tractor trailer rig parked at the Gowan’s Truck Stop parking lot. Appellant said he was in a green Continental. “Appellant denied this conversation saying the only conversation he had with the deceased was that he told him to get off the C.B. and the truck driver said ‘I’m going to set your a__ on fire.’
“After Garner came out of the truck stop and got back in the car, the Appellant drove over to the truck where the truck driver was at. As he drove alongside the truck the truck driver’s door was thrown open and shots fired. Appellant also fired. Appellant fired the shot that killed the truck driver [the alleged victim].”

The only issue raised by appellant is as to defendant’s exception to a portion of the court’s oral charge. In its oral charge the court charged the jury as to murder in the first degree, murder in the second degree, manslaughter in the first degree and manslaughter in the second degree. An exception was taken to a part of the court’s oral charge while instructing the jury on murder in the second degree. It was as follows:

“A killing by a fight and single combat, commonly called a duel, with deadly weapons is also murder in the second degree under the laws of the State of Alabama. A duel is a single combat or fight engaged in by two persons with deadly weapons by agreement or by prearrangement. No particular form of words are necessary to constitute a challenge or agreement or by prearrangement to fight a duel. Whether or not a challenge, agreement or prearrangement to fight a single combat with deadly weapons was intended or whether it was a mere fusion of passion or folly or idle boast of a braggart not intended at the time to lead to any result or to be understood by the other party as a challenge to fight a duel are questions which you must decide before you would be justified in rendering a verdict of murder in the second degree under the duel statute.” (Emphasis supplied)

Some time after the jury had commenced deliberation, it returned for “definitions for the charges of homicide again,” and the court repeated or substantially restated its oral charge on the subject, including that part of the oral charge quoted above. At the conclusion of the court’s additional oral charge, the transcript shows the following as occurring before the jury again returned to the jury room:

“MR. ROBISON: Again, Your Honor, we would except to that portion of your charge to the statutory section on dueling, as earlier stated.”

For whatever significance it may be, it is to be noted that in raising the point before the jury retired to commence its deliberation, the following occurred:

“MR. ROBISON: If the Court please, we would object to that portion of Your Honor’s charge as it pertains to the statutory offense on dueling.
“THE COURT: So noted. I will allow you to state your grounds in just a moment.”

After the jury commenced its deliberations, the following occurred out of the presence of the jury:

“THE COURT: Mr. Robison, if you want to state some grounds you can go ahead and do so now.
“MR. ROBISON: Would it be all right if I prepared those and submitted them to you?
“THE COURT: I have no problem with that.
“MR. POOLE: I have no objection.”

We understand that there is no disagreement whatever between the parties on appeal as to the sufficiency or timeliness of defendant’s objection or exception to the court’s oral charge on the subject of dueling or a duel, but to bring to light any possible misunderstanding, we note that the record shows that on January 28, 1980, about five months after the trial, but about one month before the filing of the transcript of the proceedings, the following document was signed and filed by defendant’s counsel with the Circuit Clerk:

“The defendant objects to that portion of the Court’s charge pertaining to a duel between the Defendant and the deceased, Clyde Davis, a legal basis to convict the defendant of second degree murder. As grounds for said objection, the defendant says:
“That the offense defined in Title 13-1-71 of the 1975 Code of Alabama is not a lesser included offense covered by the indictment of murder returned against the defendant and on which indictment the defendant was tried.
“That the portion of the charge of the Court authorizing a conviction of second degree murder for killing by a fight in single combat, commonly called a duel, with deadly weapons, is improper under the indictment for murder brought against Defendant and on which he was tried.
“That the indictment charging the defendant with the killing of Clyde Davis unlawfully and with malice aforethought by shooting him with a pistol is insufficient to authorize the Court to charge the jury on the killing by a fight in single combat with deadly weapons, the offense defined in Title 13-1-71 of the 1975 Code of Alabama."

Appellee well argues, and supports his argument by citations to a number of authorities, that murder in the second degree is a lesser included offense in an indictment charging murder in the first degree. As to that well established principle there can be no doubt. The decisive question, however, is whether murder in the second degree as statutorily defined by Code of Alabama 1975, § 13-1 — 71, captioned “Killing in duel,” is a lesser included offense of murder in the first degree. As to this, we are cited no authority by either party, and we believe it to be a case of first impression in Alabama.

There seems to be no disagreement as to the controlling principle, that to be a lesser included offense of one charged in an indictment, the lesser offense must be one that is necessarily included, in all of its essential elements, in the greater offense charged. Mayes v. State, Ala.Cr.App., 350 So.2d 339 (1977); Sharpe v. State, Ala.Cr.App., 340 So.2d 885 (1976); Powers v. State, 49 Ala.App. 690, 275 So.2d 369 (1973); Cochran v. State, 42 Ala.App. 144, 155 So.2d 530 (1963).

To determine whether the evil proscribed by the single short sentence contained in § 13-1-71 of the Code, “Killing by fight in single combat, commonly called a duel, with deadly weapons is murder in the second degree,” requires comprehensive consideration of the word “duel” as thus employed. Of great significance is the fact that in looking to legal publications within the last several decades for material on the subject, we find, other than references to occurrences many decades before, a vacuum. We find no reported ease in Alabama of a trial for killing another in a duel. The dearth of modern law on the subject is emphasized by the brevity of Corpus Juris Secundum (1941) in its five-page treatment of the subject (28 C.J.S. Dueling) and its one-case annotation in its 1979 Pocket Part. At 28 C.J.S. Dueling § 1a(1), we find:

“Dueling is the act of fighting with deadly weapons between two persons in pursuance of a previous agreement; and it is immaterial at what time prior to the encounter the agreement was made ... Dueling is distinguished from other offenses in that it has none of the elements of sudden heat and passion, and is usually carried out with some formality.. .. ”

We take it also that the following is correct:

“Duel. A duel is any combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel. Baker v. Supreme Lodge K.P., 103 Miss. 374, 60 So. 333, Ann.Cas. 1915 B, 547.
“Duelling. The fighting of two persons, one against the other, at an appointed time and place, upon a precedent quarrel. It differs from an affray in this, that the latter occurs on a sudden quarrel, while the former is always the result of design.” Black’s, L.D. (4th Ed. 1951)

It is also highly significant, we think, on the question hereafter discussed as to the present existence of the particular conduct that in one period or another was considerably in vogue in some places of the world, that Words and Phrases, Duel (1965) contains approximately two columns, to which nothing is supplemented by the 1979 Pocket Part.

In Corpus Juris Secundum, Black’s Law Dictionary and Words and Phrases, all supra, the citation of the case of Baker v. Supreme Lodge, K.P., 103 Miss. 374, 60 So. 333 (1913) is prominent. In that case the facts were that deceased was approached by a man named Lester, who threatened to kill him. Deceased told Lester he was unarmed, but if he would permit deceased to get to his cash drawer, he would “shoot it out with him.” Deceased went toward the cash drawer, but, before reaching it, drew a pistol from his bosom and turned toward Lester, who shot and killed him. The legal question was whether the particular transaction was a duel, within the terms of a life insurance policy limiting insurer’s liability “if the death of [Baker] (the insured) be ‘caused or superinduced ... in consequence of a duel.’ ” The court said:

“A duel, as the term is ordinarily understood, and as used in this policy, ‘is the fighting together of two persons by previous concert with deadly weapons to settle some antecedent quarrel,’ and has none of the elements of sudden heat and passion. 2 Bishop’s Criminal Law (8th Ed.) 313; Black’s Law Dictionary, page 399; Century Dictionary Encyclopedia, Vol. 3, page 1792; Davis v. Modern Woodman, 98 Mo.App. 713, 73 S.W. 923; Ward v. Commonwealth, 132 Ky. 636, 116 S.W. 786, 19 Ann.Cas. 71. The fight, if such it was, in which Baker lost his life, had none of the elements of a duel as thus defined, but was brought about without premeditation on his part by the acts and words of Lester. Nothing said in Thomas v. State, 61 Miss. 60, is in conflict herewith. The court in that case was not dealing with a duel in the common acceptation of the term.”

From what has been observed, we must conclude that a homicide “by fight in single combat, commonly called a duel, with deadly weapons” as defined by § 13-1-71 of the 1975 Code contains one or more essential elements not necessarily included in the crime of murder in the first degree. This is obvious by the known fact that there are many instances of murder in the first degree in which all of the circumstances are antipodal to every element of killing “by fight in single combat, commonly called a duel,” except as to the element of death that is common to both. To constitute the crime denounced by the particular section of the Code, there must be a fight. In murder in the first degree, a fight is not an essential element. In dueling, deadly weapons are essential; in murder, they are not. It is clear also that to constitute a duel there must be more than a one-to-one fight with deadly weapons, voluntary though it may be by both participants.

In every Constitution of Alabama, from and including the first (1819) to and including the last (1901), there has been a provision empowering the legislative department to pass laws to “suppress the evil practice of dueling.”

“The general assembly shall have power to pass such penal laws to suppress the evil practice of duelling, extending to disqualification from office or the tenure thereof, as they may deem expedient.” Constitution of Alabama 1819, Art. VI, Sec. 3
“The legislature shall pass such penal laws as it may deem expedient to suppress the evil practice of dueling.” Constitution of Alabama 1901, Art. IV, Sec. 86

On December 17, 1919, the General Assembly of Alabama enacted a statute substantially the same as that codified in every Code of Alabama to and including Code of 1975, § 13-1-71. The law stands repealed as of the effective date of the new Alabama Criminal Code, Act No. 607, § 9901, Acts of 1977, p. 812.

Worthy also of observation as to how the “strange mutations” of time have affected conduct that in periods of its existence vacillated between an “affair of honour” and a “crime” has been the fate of a statute in Alabama enacted January 7, 1836, to be found in every succeeding Code to and through the Code of 1940, Tit. 41, § 20, requiring a dueling (anti-dueling retrospective and prospective) oath by every public officer prior to his taking office. The law was expressly repealed by Act No. 28, Acts 1951, p. 239, appvd. May 23, 1951.

Of like moment is In re Dorsey, 7 Port. 293 (1838). At that time the statutory law of Alabama required an applicant for admission to the practice of law to take a “dueling oath.” The Honorable John L. Dorsey was reluctant to do so. He moved the Supreme Court to admit him as an attorney and counsellor of the Court, and to dispense with the administration to him of the oath. His pro se argument is “abridged” by the Reporter in fifty-four pages. The opinions of Justices Gold-thwaite and Ormond and Chief Justice Collier are contained in the remaining approximately fifty pages of the report of the case. With Chief Justice Collier dissenting, the court held that that part of the Act requiring the prescribed oath was unconstitutional.

Although not essential to a correct disposition of the issue now before us, we conclude also that the testimony in the instant case fails to show a duel or that which is “commonly called” a duel. From the authorities in the field of law on the subject, we now turn to the authorities in the field of language. In doing so, we adhere to the trunk of the basic or primary signification of the word duel, or the like, exclusive of partly parasitic branches that embrace every kind of physical combat, as well as intellectual contest, as a duel.

As to such primary signification, we find:

“Duel.
“1. A regular fight between two persons; a single combat, spec. Obs. a. A judicial single combat; trial by wager of battle Obs. exc. Hist.
“[1284 Act 12 Edw. I (Stat. Walliae) c. 8, Placita de terris in partibus istis non ha-bent terminan per duellum, ñeque per magnam assisam (Omitted are several chronologically arranged citations and references, to 1875, relative to the previous right of a party, whether the plaintiff or the defendant, to ‘put the Trial upon the Duel.’)]
“b. . In current use: A private fight between two persons, pre-arranged, and fought with deadly weapons, usually in the presence of at least two witnesses called seconds, having for its object to decide a personal quarrel or to settle a point of honor.
“[1606 Bryskett. Civ. Life 65 This kind of challenging and fighting man to man, under the name of Duellum, which is used now adayes among souldiers and men of honour, and by long custome authorized, to discharge a man of an injury received. (Omitted are several references in chronological order until 1840 relative to the transition in England from
the judicial duel to a duel as to which the courts would have no part.)]
“c. A sustained fight between two animals [Omitted are two references to such a fight].” The Oxford English Dictionary, Vol. Ill, p. 705 (1961).

We find nothing in the works of men and women of letters and general learning that would ever picture the transaction that took place between defendant and his victim as a duel, as a “single combat, commonly called a duel.” From their detached and scholarly standpoint they have written to the contrary. Failing memories of that which has been so well known in the past are revived by reading again what was written by authors long gone, as well as by studying the facts of history as recorded by authors of the present generation, such as the following, as a part of that written by Robert Baldick, Oxford University, author of “The Duel”:

“Duel, a form of combat between two persons usually armed with lethal weapons and fought in the presence of witnesses according to a certain ceremony and a strict code of law or honor.
“In England, trial by combat (duel) remained the only means of deciding a matter of right until the reign of Henry II, who instituted the alternative of trial by jury. Even then, judicial duels continued to be fought occasionally and the right to choose trial by combat lingered as a part of English law until the early 19th century. In 1817 a certain Abraham Thornton, charged with murder, claimed the right to ‘wage his battle.’ As no one could be found to fight for the victim, Thornton was acquitted. Soon afterward, on March 22, 1819, Parliament abolished the right to appeal to the ‘judgment of God,’ and with it the judicial duel.
“Today, with the exception of a few undercover duels fought by students in German Korps, some lighthearted affairs at England’s ancient universities, and occasional encounters in France conducted with a minimum of risk and the maximum of publicity, the duel is dead. It was killed not so much by legislation as by press ridicule, disapproval, and a more humane attitude to the conduct of human relations.” Encyclopedia Americana, Vol. 9, pp. 455-456 (1972).

It seems that he is right, that the evil “commonly called a duel” is now dead, has been dead and buried for many years, and there has been no general resurrection of it. The incident involved in the instant case was not a resurrection of its body. In the most favorable light to the appellee on the issue, it purports to be nothing more than a reincarnation or transmigration of its soul.

Witnesses to the extinction in Alabama of the evil “commonly called a duel” include Honorable Peter A. Brannon, former director, Department of Archives and History of Alabama. In his article, Dueling in Alabama, Alabama Historical Quarterly, Vol. 17-1955, pp. 197-204, he commences:

“The practice of dueling prevailed in what is now Alabama, from the very earliest days of this territory down to near the beginning of the War Between the States.”

He discusses several duels in Alabama, some just over the border-line between Alabama and Mississippi and between Alabama and Georgia, but he mentions none as having occurred during an entire century prior to the publication of the article-none during half of a century before the passing of the livery stable. His recital of the duels that were fought includes no combat that can be likened to the one in the instant case. Such incidents occurred then, have occurred ever since and are much too often now. They are not duels.

It was a mistake to inject an issue as to dueling into the instant case. The very nature of the evil would prevent its being grafted or budded into another evil. Even during periods of its common occurrence it was sui generis. In the absence of compelling reasons to the contrary, the case should be tried again, that a jury may determine the issue as to self-defense in the light of the applicable principles of law unclouded by the unique and inapplicable intricacies of a duel.

For the error indicated, the judgment of the trial court should be reversed and the cause remanded.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under § 6.10 of the Judicial Article (Constitutional Amendment No. 321); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.

      . The emphasized language is apparently taken from Ivey v. State, 12 Ala. 276, 280 (1847), a “challenge to fight” a duel case. See Code of Alabama 1975, § 13-1-2.

      . We do not overlook the single sentence reference to a “combat ... as in a duel” in the two-paragraph section on homicide (40 C.J.S. Homicide § 17), or the two citations in annotating such sentence in the 1979 Pocket Part. Nor do we overlook C.J.S. General Index B-l Dueling.

      . We question somewhat the “or more.”


text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: James W. PAYNE v. STATE of Alabama).
    79-842.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

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


author: BOWEN, Judge. BOWEN, Judge.

text:
    Roger Dale HOWTON v. STATE.
    6 Div. 22.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    After Return to Remand Nov. 25, 1980.

      W. Allen Grocholski for Holder, Moore & Grocholski, and Bobby R. Newman for No-len & Newman, Fayette, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted separately for the offenses of assault with intent to murder and assault with intent to rape. After a trial by jury, he was found guilty of the latter offense and sentenced to twenty years’ imprisonment. No motion to exclude, request for the affirmative charge or motion for a new trial was made calling into issue the sufficiency of evidence. However, a review of the record convinces us that the evidence is amply sufficient to support the jury’s verdict of guilty of assault with intent to rape.

I

During the cross examination of the defendant, the following occurred:

“Q. All right, I’ll ask you if in fact you did during the period of January ’77 through January ’78 if you did in fact expose yourself to other women?
* * * * * *
“A. Yes, sir, I have.”

The defendant contends that such was error in that it improperly elicited incompetent character evidence when he had not placed such in issue. His defense was alibi. Over objection, the trial court allowed this testimony into evidence and in its oral charge instructed the jury that the above testimony could not be considered in determining whether or not the defendant was at the home of the prosecutrix on the day in question but rather could be considered only in determining his intent. This action was proper.

Evidence of collateral acts or offenses similar to the offense with which the accused is charged is admissible to prove his intent on the occasion in question. In this case the evidence was offered to negative any other intent than the intent to ravish. 2 Wigmore, Evidence §§ 302, 303, 357, 360 (Chadbourn Rev. 1979); C. Gamble, McElroy’s Alabama Evidence, § 69.01(5) (3rd ed. 1977).

“When the defendant assaulted the prosecuting witness on the night charged, what was his intention? Was it to rob, to rape, or to do her other physical harm? Without the aid of the testimony of his previous conduct with other white women no one could say and it would have to be left to guess or doubtful inference by the jury as to what that intention was. Whereas, with the proof of his conduct sexually, toward other white females before this assault charged, it is but a reasonable conclusion that his acts at that time were with the intent or ‘desire to satisfy lust.’ ”

Wilkins v. State, 29 Ala. 349, 197 So. 75, cert. denied, 240 Ala. 52, 197 So. 181 (1940), involved a black defendant charged with assault of a white woman with intent to rape. The court held that it was proper to admit evidence that the defendant on prior occasions had exposed his private parts to young white girls. See also, Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944); McKenzie v. State, 33 Ala.App. 7, 33 So.2d 484 (1946), cert. denied, 250 Ala. 178, 33 So.2d 488 (1947); and cases cited therein. See generally, Gassenheimer v. State, 52 Ala. 313 (1875); Ingram v. State, 39 Ala. 247 (1864); Bobo v. State, 56 Ala.App. 662, 324 So.2d 336 (1975); Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975); and cases cited therein.

In the instant case, we find no error in the trial court’s ruling allowing the State to ask the above quoted question. It was relevant in determining the defendant’s intent, especially in light of the fact that the defendant was also being tried on a separate indictment for assault with intent to murder arising out of the same incident.

II

During its rebuttal testimony, the State called Mr. Charles Tate, an investigator for the district attorney’s office to rebut and impeach the testimony of the defendant’s wife concerning the contents of a letter she allegedly sent to the defendant while he was incarcerated pending his trial. We quote the pertinent portions of his testimony:

“Q. Mr. Tate, do you know whether or not it is a practice in Fayette County jail to read ingoing and outcoming mail of prisoners?
“A. Yes, sir, it is.
“Q. Do you know whether or not during the time Roger Dale Howton has been in jail any mail has been opened and read from his wife to him?
“A. Yes, sir there was.
******
“MR. JOHNSTON (Assistant District Attorney): Did you read such a letter, sir?
“A. Yes, sir, I did.
“Q. Would you tell the jury what it said in the letter with respect to her testifying in his behalf?
“MR. GROCHOLSKI (Defense Counsel): We object to that, Your Honor, on the basis that the letter is the best evidence and also privileged communication.
“THE COURT: Overruled.
“MR. GROCHOLSKI: We except.
“Q. What did it say?
“A. In essence the letter was from the wife telling Roger to go ahead and admit to his guilt and that she could not testify whether he was home or not during the time in question. She also stated that you remember that I was under heavy sedation and that I couldn’t really say whether he was there the whole time or not. He did have different clothes on when she woke up_”

The defendant asserts that the above testimony violated both the best evidence rule and the rule governing privileged communications. The confidential communications privilege between spouses does not operate to exclude the testimony of a third party who overheard the private conversation, even if the conversation was overheard while spying or eavesdropping. Phillips v. State, 11 Ala.App. 168, 173, 65 So. 673 (1914).

The use of the letter or its contents against the defendant was not a violation of his constitutional rights as an unreasonable search and seizure. Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919); Annot. 47 A.L.R.3d 1192 (1973). Furthermore, illegally seized evidence may be used to impeach the testimony of a witness. United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980); Pugh v. State, 355 So.2d 386, 391 (Ala.Cr.App.), cert. denied, 355 So.2d 392 (Ala.1977).

The best evidence rule requires a party who wishes to prove the terms or contents of a writing to introduce the original into evidence if available. Bell v. State, Ala.Cr.App., 364 So.2d 420, cert. denied, Ala., 364 So.2d 424 (1978); C. Gamble, McElroy’s Alabama Evidence, § 212.01 (3rd ed. 1977). Furthermore, as prerequisites to the introduction of secondary evidence it must be shown to the reasonable satisfaction of the trial judge that: (1) the original is lost, has been destroyed, or is otherwise unavailable and, (2) that every reasonable effort to procure the original has been made. Bell v. State, 156 Ala. 76, 47 So. 242 (1908); Sims v. State, 155 Ala. 96, 46 So. 493 (1908); Reiling v. State, Ala.Cr.App., 339 So.2d 115 (1976); Roberson v. State, 21 Ala.App. 197, 106 So. 696 (1925), and cases cited therein; McElroy, §§ 214.01, 215.01. See also, Abingdon Mills v. State, 167 Ala. 146, 52 So. 596 (1910); Biggs v. State, Ala.Cr.App., 346 So.2d 467 (1976), cert. denied, Ala., 346 So.2d 470 (1977). Only after satisfying the above conditions may a party offer a copy of the original or oral testimony concerning its contents. The purposes of the rule are to prevent fraud and to insure the reliability of the oral testimony concerning the writing. McElroy, § 212.02.

An exception to the general rule exists so that, if the original is in the possession of the accused, the State may offer secondary evidence of its contents without attempting to procure it from or giving notice to produce it to the accused. McElroy, § 216.04(1). Under this exception, the State must show or offer sufficient reason, to the reasonable satisfaction of the trial judge, to support a finding that the original is in the possession of the accused. Dean v. State, 240 Ala. 8, 197 So. 53 (1940). See also, Medley v. State, 25 Ala.App. 35, 140 So. 184 (1932).

In the instant case, the State made no showing to the trial court that the letter was in the possession of the defendant before offering Mr. Tate’s testimony. It appears that no attempt was made to do such, or to show that it was otherwise unavailable. The record gives no clue as to the whereabouts of the letter at the time of the trial. While we do not suggest that the State perform futile acts to satisfy the condition of this exception, it must make some reasonable effort to comply with such. Otherwise, the State has failed to lay the proper predicate for the introduction of the secondary evidence under the exception to the general rule. Nailer v. State, 18 Ala.App. 127, 90 So. 131 (1921). While we may assume that the letter was delivered to the defendant and retained by him, this assumption is based on mere conjecture. Speculation will not serve the function of fact in establishing the proper predicate for the admission of evidence.

Absent such a showing, the error in admitting the above quoted testimony cannot be considered harmless. After the admission of the letter, the jury could have reasonably inferred that the defendant changed his clothes and left his home while his wife was asleep. This can only point the finger of guilt at the defendant and its admission, although unnecessary, was highly prejudicial. Consequently, no application of the harmless error rule can be made.

We remand this cause to the trial court with directions to hold a hearing, with the defendant and his counsel present, in order to determine whether the State can establish the proper predicate for introduction of the above quoted testimony into evidence.

REMANDED WITH DIRECTIONS.

All Judges concur.

AFTER RETURN TO REMAND

BOWEN, Judge.

In answer to our opinion of August 19, 1980, the Circuit Court responded:

“On September 22nd, pursuant to the instructions of the Appeals Court, this Court conducted a hearing as to this matter. The Defendant and his counsel were present and were afforded the opportunity to cross-examine witnesses, offer testimony and present arguments to this Court.
“After having heard the evidence presented at the hearing held on the 22nd day of September, 1980, this Court finds that the State, at this hearing, established the proper predicate for the introduction of the testimony of Charles Tate as to the contents of the letter that was written by the Defendant’s wife to the Defendant while he was incarcerated in the Fayette County Jail. The State, by the evidence, showed that the letter was delivered to the Defendant and was retained by him and therefore was unavailable for production at the trial of this cause.”

Apparently there was no record made or requested of the testimony taken at this hearing. Consequently, there is nothing in the record to contradict the findings of the trial judge. The judgment of the Circuit Court is affirmed.

Affirmed.

All Judges concur.


author: DeCARLO, Judge.

text:
    Clifford Dixon NOE v. STATE.
    1 Div. 120.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.

      A1 Pennington, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

This appeal, by an indigent, is from a judgment of conviction by the Mobile Circuit Court for forgery in the first degree. The appellant, who has a Ph.D. in economics, pleaded guilty to the charge. Prior to accepting the plea, the court made the necessary inquiries as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. In addition, the record shows that State’s Exhibit A, which is a motion to enter a guilty plea, reflects the Boykin requisites.

After the guilty plea was entered, the court ordered a pre-sentencing investigation, and sentencing was postponed. The appellant had federal charges pending against him, and he surrendered himself to the federal authorities in Miami, Florida, before sentence could be imposed on him in Alabama.

The appellant was returned to Mobile in January, 1980, for a matter in federal court and, while there was brought to the Mobile Circuit Court for sentencing. In the Mobile Circuit Court, the appellant moved to withdraw his guilty plea and, also, filed a motion alleging his denial of a speedy trial. The motions were denied, and the appellant was sentenced to twelve years imprisonment to begin at the expiration of his federal sentence.

I

The appellant’s primary contention is that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution. The facts are uncontroverted that the appellant had entered a plea of guilty and that the court had accepted the plea but had not sentenced him.

It is well settled that the passage of time alone will not bar imposition of a sentence or require an accused’s discharge. In order to assert that speedy trial was denied, the delay must be purposeful or oppressive. United States v. Grabina, 2nd Cir., 309 F.2d 783. Whether the delay amounts to a deprivation of an accused’s right to a speedy trial depends upon the circumstances of the particular case. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393.

As was pointed out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, four factors must be considered in determining whether there has been a deprivation of the appellant’s right to a speedy trial. Those factors are, (1) lengthy delay, (2) reason for delay, (3) assertion of the right, and, (4) prejudice.

The thirteen-month interval between judgment and sentencing was not a deliberate or an unjustifiable delay on the part of the State. The record indicates that the guilty plea was taken on August 2, 1978, and that sentencing had been delayed until August 8, 1978, for the purpose of obtaining a pre-sentencing investigation. However, at the insistence of the appellant, sentence was delayed until August 21, 1978.

From the record:

“THE COURT: All right. The Court finds that you are alert, that you’re intelligent, that you understand and appreciate the nature of the charges against you and the consequences of pleading guilty. On your plea of guilty the Court now adjudges you to be guilty and orders that a presentence investigation be conducted and that this matter be set down on August the 8th at eight thirty a. m. for sentencing.
“MR. GONAS: Judge, there are some other things that are pending presently with Mr. Noe not in this state. I think Your Honor is aware of them. When Your Honor is ready to sentence him we would like to have some information pertaining to that in front of, and what we would like is that Your Honor set this down for August the 15th rather than August the 8th to have time to let the mail take care of some matters that we think would be pertinent to your decision at sentencing, Your Honor.
“THE COURT: Are these matters which you are going to secure and send to me?
“MR GONAS: Yes, sir.
“THE COURT: In other words, you do not wish me to make any investigation as to-
“MR. GONAS: This will be added to the investigation Your Honor will have before you.
“THE COURT: All right. We’ll set the matter down for sentencing on Monday, August the 21st at eight thirty.”

Under these circumstances, we do not believe the delay in the present case, was “purposeful or oppressive.” United States v. Grabina, supra. The delay was originally occasioned by the appellant surrendering himself to the federal authorities in Miami, even though he was under court order to return for sentencing on August 21, 1978.

The appellant has not shown that he incurred any prejudice as a result of the delay, nor do the circumstances of this case lend themselves to a showing of “affirmative prejudice.” See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183.

The State did not achieve or receive any advantage by this delay. The prisoner was incarcerated in a federal institution on federal charges and not awaiting trial in the State court. Appellant had his day in court and his guilt had already been established.

Although the appellant asserted his right to a speedy trial in a letter to the circuit clerk of Mobile County on December 18, 1978, we note this was approximately four months after he was supposed to appear in Mobile Circuit Court for sentencing.

Nowhere does it show that the court was influenced by any events that occurred in the interval between the prisoner’s judgment of conviction and sentencing.

As the Supreme Court of the United States recognized in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818:

“This Court has rejected the ‘doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.’ In re Bonner, supra, 151 U.S. at page 260, 14 S.Ct. at page 327, 38 L.Ed. 149. The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”

In summary, the appellant has not demonstrated that the delay was unreasonable and has not shown that he has been prejudiced. Under these circumstances, we see no reason for depriving the Mobile Circuit Court of its power to impose a prison sentence upon the appellant. Brady v. Superintendent, Anne Arundel County Detention Center, 4th Cir., 443 F.2d 1307; United States v. Tortorello, 2nd Cir., 391 F.2d 587; White v. Henderson, D.C., 467 F.Supp. 96. See also, United States v. James, 5th Cir., 459 F.2d 443 and Welsh v. United States, 6th Cir., 348 F.2d 885. See Scaloni v. State, Ala.Cr.App., 383 So.2d 586.

II

Appellant asserts that the trial court committed reversible error when it did not permit him to withdraw his plea of guilty. This court in Boykin v. State, Ala.Cr.App., 361 So.2d 1158 stated that, if the defendant freely and voluntarily enters into a guilty plea, then it is not an abuse of discretion for the trial court to deny him the right to withdraw his plea of guilty.

We have reviewed the circumstances surrounding the appellant’s guilty plea and have found that it was freely and voluntarily made. Under these circumstances, the trial court did not err when it denied the appellant’s request to withdraw his plea of guilty.

We have examined the record and transcript of evidence in this case and have found no error prejudicial to the appellant; therefore, the judgment of conviction by the Mobile Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willie PICKETT v. STATE.
    3 Div. 128.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.

      Elno A. Smith, Jr., and Prank L. Thiem-onge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of an assault with intent to murder Leroy Wilson by shooting him with a pistol. The court sentenced him to imprisonment for three years.

There is no conflict in the evidence to the effect that defendant shot the alleged victim and that the wound caused him to be hospitalized fifteen days. There is definite conflict between the testimony of witnesses for the State, particularly the victim, and witnesses for the defendant, including the defendant, as to whether defendant was acting in defense of a female with whom each had alternatingly lived, either meretriciously or as common law husband and wife. She testified that she was the defendant’s common law wife before the shooting. At the time of the shooting the female had been living in an apartment with her children and her mother. She said two of her children were by the defendant. The victim had been living next door in an apartment with his grandmother for about two months before the shooting. The shooting occurred in the area of the two apartments, which are jointly referred to in the evidence as a duplex.

There is now no issue as to the sufficiency of the evidence to support the verdict, and we find that there is no basis for a reasonable contention that the evidence was insufficient. Except as to parts of the evidence hereafter mentioned, we omit as unnecessary any further discussion of the evidence.

During the cross-examination by defendant of Leroy Wilson, the alleged victim, in which he had stated that he “was living with my grandmother and stuff” but that “at night I was sleeping up there” with the mentioned female living next door, the following occurred:

“Q. You let other people know you were living there?
“A. Yeah.
“Q. Who did you let know so we can get them into Court so they can testify for you?
“MR. GILLIS: Objection.
“THE COURT: Sustained.
“A. My grandmother, she knows.
“THE COURT: Don’t answer that. Instruct the jury to disregard that. Let me tell you something. You will have to answer these questions as asked and not add a thing in the world. Just answer the question that is asked.
“MR. GILLIS: Your Honor. We again object to the line of questioning as to how long he lived or where he lived. The State fails to see the relevancy of those questions to whether or not Willie Pickett shot with intent to kill this witness.
“MR. SMITH: Your Honor, this is cross-examination and I expect to impeach him on every one of these points.
“THE COURT: Overruled.
“MR. GILLIS: Yes, sir.”

Appellant says that the sustention of the State’s objection to the question, “Who did you let know so we can get them into Court so they can testify for you?” was erroneous. Assuming that there may have been merit in any question asking the witness as to the identity of the people he had let know that he was living there, the addendum to such a question, “so we can get them into Court so they can testify for you” is argumentative and any forthright answer to the question, without responsive argument, would have been equivocal. Furthermore, the purported answer given by the witness to the question that “My grandmother, she knows” demonstrates that the question was so involved that the objection to it was properly sustained. The trial court was not in error in doing so.

Appellant in his brief states:

“On page 42 on 43 of the transcript, defense attorney was cross-examining a witness as to details on the price and type of rum he had been drinking prior to the shooting. The State objected to this cross-examination and the State's objection was sustained by the trial court.”

We quote portions of the cited pages of the transcript, occurring during the cross-examination of the alleged victim:

“Q. You didn’t buy no rum or nothing yourself?
“A. Well, like I say, we were passing on that. That’s all I was drinking over at Tommy Calhoun’s house, and a piece cost $6.55.
“Q. $6.55. What kind of rum?
“A. What you call it?
“MR. GILLIS: Your Honor, the State objects.
“THE COURT: Okay. I’ll sustain that.
“MR. SMITH: Your Honor, I am going to go down to the liquor store and see if I can find some $6.55 rum.
“A. Yes, you can.
“Q. Tell me what kind it is?
“A. Bacardi.
“MR. GILLIS: Your Honor, the State should simply request that defense counsel make some representative showing to the Court that this is relevant to this entire matter.
“MR. SMITH: Your Honor, his state of intoxication is very relevant in this matter. It reflects on his recollection as to what happened. His temperament or mood when he is intoxicated and I just want to pinpoint how much he had to drink.
“MR. GILLIS: Your Honor. What does that have to do with how much it cost, though, that’s what we are asking?
“MR. SMITH: He made a statement that they put up $2.00 a piece, Your Honor, and somebody made a profit out of the deal.
“THE COURT: I am going to sustain that. I think that’s irrelevant.”

The quotation from the transcript discloses that defendant was able to show, and did show, by the witness the “details on the price and type of rum he had been drinking prior to the shooting” and disproves any contention that the court prevented him from doing so.

Appellant states in his brief:

“On page 72 of the transcript, the trial court sustained a State objection to the question, ‘Now, does those photographs accurately, correctly and depict that house and that scene as it was at the time of the shooting, to the best of your knowledge, or the time that you were out there, two days later?’ This was a preliminary question prior to introducing defense exhibit’s 1-6, which were photographs of the alleged crime scene.”

The transcript discloses, as the appellant asserts, that the court did sustain the State’s objection to such question and an apparent understanding (or misunderstanding) that defendant was attempting to show the accuracy of the pictures as of the time of the shooting as distinguished from the time the witness observed the scene, which was two days after the shooting. The transcript further shows that when it was made clear to all concerned that defendant was asking as to the accuracy of the photographs as of the time the particular witness observed the premises, two days after the shooting, his testimony to that effect was admitted and the photographs were admitted in evidence. Any error in sustaining the particular objection of the State was cured by the subsequent action of the court.

We have discussed all of the contentions made by appellant to the effect that the court denied defense counsel the “wide latitude to which it was entitled in cross-examination of witnesses.” We agree with him as to the principle of law stated, but as indicated above we find that there was no instance in which he was denied the wide latitude to which he was entitled in his cross-examination of witnesses.

The female around whom the trouble between defendant and the alleged victim revolved testified as a witness for defendant. Appellant seems to complain of the court’s sustention of an objection by the State to a question asked her as to what Leroy Wilson said about a month before the shooting at a conference among the female, the defendant and Leroy Wilson. The question obviously called for hearsay testimony, and there is no indication of any claim that it came within any exception to the rule of exclusion of hearsay testimony. The court was not in error in its ruling. Also, in a question asked another witness for defendant on direct examination as to whether she knew of “any other occasion” that the mentioned female told Leroy Wilson “not to come to her house” called for inadmissible hearsay testimony, and the State’s objection thereto was properly sustained.

Another insistence on error is based on a ruling of the trial court as shown during the direct examination of defendant as a witness:

“Q. Then what happened?
“A. When I pulled the pistol out he had the knife around her throat, sir, and so I know, I just knowed he was going to kill her. I said ...
“MR. GILLIS: Objection. Self-serving.
“THE COURT: Sustained.
“Q. What did you say, if anything?
“A. I didn’t say anything. When I run through the door he shoved her and he didn’t ran. He went towards, the you know, the middle room. I went behind him. I went behind him and when I went behind him he acted like he going, you know, he, he acted like he just wanted to turn, you know, kill, just kill, you know. I didn’t shoot. I shot once, you know, to warn, you know, and he acted like he didn’t want to leave on out the house.
“Q. And then what happened?
“A. I shot him after he acted like he didn’t want to leave.”

Our analysis of the quoted portion of the transcript does not enable us to determine the part of the purported answer of the witness to which the objection was made on the ground that it was “Self-serving.” We hardly see that it could have been referable to the portion of his answer in which he stated, “I just knowed he was going to kill her,” as the term “self-serving” is usually referable to what one says while not testifying as a witness. If it was referable to the interrupted sentence beginning, “I said . . .,” it is our opinion that it would not have been objectionable for the witness to testify what he said on the occasion of the commission of the alleged crime. At any rate, as the transcript shows, the defendant was allowed to answer any question as to what he said, by saying, “I didn’t say anything.” Moreover, if the objection is referable to what the witness had said, “I just knowed he was going to kill her,” it did not serve the place of a motion to exclude the statement from the consideration of the jury. This left the statement for the consideration of the jury, it would seem, to the same extent as if there had been no objection to it and no sustention of the objection. There was no error prejudicial to the defendant in the particular ruling of the court.

During the direct examination of Leroy Wilson, he testified as to what defendant said to him while Wilson was in the hospital for treatment for his injury, by saying:

“Well, he said Diane (the mentioned female) and him and she had told him all about what’s happened and say if I don’t make no charges against him he’ll help me pay half of the hospital bill and I told him he’ll ain’t gonna left him pay half of nothing, he liked to kill me, man, just like that. He said ‘If you don’t then when you get out me and you gonna meet in the street and we’re gonna have it out.’ ”

Appellant says, “The trial court abused its discretion in allowing this very damaging testimony, which was irrelevant, immaterial and incompetent as to an event which took place several days earlier.” There was no objection to the particular question as to which the above statement of Leroy Wilson was an answer and no motion to exclude the statement as evidence. For that reason, no error in connection with it is chargeable to the trial court. In addition, we think the evidence was not subject to a general objection for the reason that it indicated an attempt by defendant to suppress evidence admissible against him. Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (1973); Strange v. State, 43 Ala.App. 599, 197 So.2d 437 (1966); Sandlin v. State, 25 Ala.App. 311, 146 So. 82 (1933); Haisten v. State, 50 Ala.App. 504, 280 So.2d 209 (1973); Brown v. State, Ala.Cr.App., 339 So.2d 125 (1976); Conley v. State, Ala.Cr.App., 354 So.2d 1172 (1977).

During the cross-examination by defendant of the witness Leroy Wilson as to the occasion for his being where he was when the altercation occurred, the transcript shows:

“Q. And there ain’t no question you was over there arguing?
“A. Yeah.
“Q. Now, you had a perfect right to be there and she invited you in, is that correct?
“A. Correct.
“Q. Why did you run out the backdoor if you had a perfect right to be there?
“A. He [Defendant] had come up there and he had killed my uncle and I don’t take no chances on anybody coming....
“MR. SMITH: We are going to object to that, Your Honor.
“THE COURT: Okay. Wait a minute.
“MR. GILLIS: Your honor, this is in response to counsel’s question as to his motive and intent as to his action, and counsel is just stuck with the answer.
“THE COURT: Overruled. I’m sorry. Sustained. You got me confused. Overrule the objection.”

The confusion is regrettable, but to some extent it is understandable. At any rate, the court is not properly chargeable with reversible error in overruling the objection of defendant. The answer was responsive to the question. Where a witness gives a responsive answer, the party eliciting the answer has no right to have it excluded. Hammond v. State, 147 Ala. 79, 41 So. 761 (1906); Dickens v. State, 142 Ala. 49, 39 So. 14 (1905).

There is 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. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


text:
    Annie Pearl HADLEY v. STATE.
    3 Div. 188.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      Horace N. Lynn of Piel & Lynn, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Defendant-appellant was tried on an indictment charging her with murder in the first degree of Tom Hadley. A jury found her guilty of murder in the second degree and fixed her punishment at imprisonment for twenty years, and the court sentenced her accordingly.

According to the undisputed evidence, the defendant and the victim were living together as husband and wife at 542 Cleveland Avenue where on July 14,1979, he died from wounds inflicted upon him with a knife while he was at the nearby home of Willie Washington at 640 Cobb Street. The wounds had been inflicted late that morning, and the victim died some time that afternoon. The victim, defendant and Willie Washington were at Willie Washington’s home at or about the time the wounds were inflicted. Defendant did not testify in the case, but a statement by her to the effect that she had cut the victim was admitted in evidence. No contention is made on appeal that the evidence was not sufficient to support the verdict, and we find no reasonable basis for such a contention.

The gist of the issue presented by appellant is that appellant’s confession was “secured as a result of” an “illegal arrest” and for that reason the trial court was in error in permitting the introduction of the “confession” in evidence. We agree with appellant’s conclusion that a confession is not admissible in evidence if it has been secured as a result of an illegal arrest. Reese v. State, 49 Ala.App. 167, 269 So.2d 622 (1972); White v. State, 45 Ala.App. 1, 221 So.2d 117 (1969). We also agree that when a defendant has been arrested without a warrant, his confession should not be admitted in evidence unless the arrest was lawful, and that “the burden is on the state to show that the arrest was lawful.” Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Knox v. State, 42 Ala.App. 578, 172 So.2d 787 (1964). It remains only for us to decide whether a felony had been committed and whether the officer arresting defendant had reasonable cause at the time of the arrest to believe that the defendant committed the felony. Code of Alabama 1975, § 15-10-3(3). Appellant does not question the fact that a felony had been committed. She says the arresting officer did not have at the time of the arrest reasonable cause to believe that defendant had committed it.

At the time of the arrest without a warrant, which was about 11:00 P.M., the officer making the arrest learned either first hand or from information supplied him by other officers that the felonious homicide had occurred, that defendant had said that the victim had told her, while he was in his injured condition, that someone had broken into the house and had cut him. The officer making the arrest testified that he had talked with Willie Washington and obtained information from him as shown by the following part of the officer’s testimony:

“A. He stated that he saw the Defendant, Annie Pearl Hadley, with a knife in her hand at his house.
“Q. Did he say whether or not Annie Pearl Hadley did anything with that knife?
“A. He said she struck at him with the knife.
“Q. Struck at whom?
“A. Tom Hadley, the deceased.
“Q. Okay. Did he tell you whether or not he saw Tom Hadley?
“A. Yes. Tom Hadley had been at his house.
“Q. Okay. Did he relate or state to you whether or not Tom Hadley had been cut or was bleeding or anything like that?
“A. He did, because he attempted to stop the bleeding.
“Q. After the cutting, what, if anything, happened?
“A. The subject was sitting in a chair as you enter the home on the .. .
“Q. That is the Cobb Street address? “A. That is correct. There was a great amount of blood there and a trail of blood leading from there through to the bedroom, kitchen and bedroom where there was a great deal more blood. And this is where the subject . .. Willie Washington attempted to wrap a pair of pajamas, I believe, to stop the bleeding.
“Q. Did Mr. Hadley ever leave the residence?
“A. He did and went from there over to his apartment on Cleveland Avenue.
“Q. Now, when you say Mr. Washington said that Annie Pearl is the one who cut him .. .
“A. That is correct.
“Q. ... approximately what time are you talking to Mr. Washington?
“A. I talked to him quite some time. I advised him of his rights at 4:50 p. m., and I talked to him for several hours. I think it was around Eight O’clock or so when I took a statement from him.”

In arguing that the officer did not have probable cause for believing that defendant had committed a felony, appellant attempts to fit Willie Washington into the category of an informant or informer whose credibility has not been shown and whose uncorroborated information should not be deemed trustworthy enough to furnish probable cause for belief that the information furnished by him is true. He relies upon such cases as Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). In our opinion, Willie Washington was not the type of informer or informant considered in those and many other cases.

In Alexander v. State, Ala.Cr.App., 337 So.2d 99, we noted that a failure to distinguish between an “informant” and an “informer,” as those words are distinguished by authoritative lexicographers, has contributed to some confusion on the subject and has caused, it seems, some to think that “information” from another can never furnish probable cause for belief in the truth of the information, in the absence of corroboration or the establishment of the credibility of the informant. Such is not correct. The principle requiring one of said alternatives as to the one giving the information has been applied usually, if not always, to persons who covertly supply information to law enforcement authorities. Willie Washington did not come within that category.

Good reasons for not requiring the corroboration or establishment of the credibility of all persons furnishing information to law enforcement officials before they can be held to have probable cause for believing such information, are fluently given in Loveday v. State, 74 Wis.2d 503, 247 N.W.2d 116 (1976) and State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971).

“The defendant claims Garza may not be considered a citizen informer because he has a criminal record. This claim, however, is not based upon a determinative distinction between citizen informers and traditional police informers. It is clear that the critical distinction between these types of informers is the expectation of some gain or concession in exchange for the information. In Paszek this court stated at 630-31, 184 N.W.2d at 843:
“ ‘However, an ordinary citizen who reports a crime which has been committed in his presence, or that a crime is being or will be committed, stands on much different ground than a police informer. He is a witness to criminal activity who acts with an intent to aid police in law enforcement because of his concern for society or for his own safety. He does not expect any gain or concession in exchange for his information. An informer of this type would not have more than one opportunity to supply information to the police, thereby precluding proof of his reliability by pointing to previous accurate information which he has supplied.’
“The record reveals that Garza was not and never had been a police informer. He is not unnamed in this case. He witnessed a confession of this crime by the defendant and communicated the statement to police, not for consideration from the police, but merely to cooperate. He qualifies as a citizen informer” Loveday v. State, 247 N.W.2d 116, 128.

It is correct, as appellant suggests, that gullibility to the extent of believing practically everything anyone else says can readily result in a failure to have probable cause for a belief. Thus we find:

“The citizen informer rule does not dispense with all requirements of credibility, and an untested informant may not be accorded reliability where his statements lack specificity and evidence of personal knowledge. The reliability of a citizen informer should be evaluated from the nature of his report, his opportunity to see and hear the matter reported, and the extent to which it can be verified by independent police investigation.” 6A C.J.S. Arrest § 29(b)

Information obtained from Willie Washington contained “specificity and evidence of personal knowledge” and was based upon seeing defendant striking at the victim with a knife, which, when considered by the officers with what they had actually found themselves or otherwise learned that the victim had died soon thereafter at his home and that defendant was in his home at the time, furnished strong probable cause for belief that she had feloniously killed him. Her arrest was not illegal.

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. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.

      . There may be some question as to whether there was an actual arrest without a warrant, as distinguished from a temporary detention for the purpose of further investigation. We find it unnecessary to decide that question.


author: PER CURIAM.

text:
    Ex parte Annie Pearl HADLEY. (In re Annie Pearl Hadley v. State of Alabama.)
    80-79.
    Supreme Court of Alabama.
    Nov. 25, 1980.
   PER CURIAM.

PETITION STRICKEN.

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