text:
    Johnny McCLOUD v. STATE.
    7 Div. 803.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.

      Hubert H. Wright and Charles Centerfit Hart, Gadsden, for appellant.
    Charles A. Graddiek, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

The appellant was charged in a two-count indictment with the June 27, 1980, robbery and murder of Gwendolyn Bonner. The jury found him guilty as charged and the trial court sentenced him on each count to life imprisonment with both sentences to run concurrently. At arraignment and throughout the trial proceedings, appellant was represented by appointed counsel. Appellant gave notice of appeal and was found to be indigent. He is in this court with a free transcript and trial counsel was appointed to represent him on appeal.

Etowah County Coroner Bill Bragg testified that, around 9:30 a. m. on June 30, 1980, he went to view the body of a young black female at 141 Hillside Circle in Gadsden. He stated that the deceased had died from a gunshot wound to the right rear of the head. The deceased’s wrists were tied together with shoelaces. Coroner Bragg testified that the body was in a state of decomposition. He stated that an autopsy was performed in Birmingham. Reports received by Coroner Bragg from firearms expert Lawden Yates and Toxicologist Chip Walls were admitted into evidence as appellant’s exhibits. A photograph of the victim was properly admitted into evidence.

Dr. Joseph Embry, a forensic pathologist employed by the State Department of Forensic Sciences, testified that, around 2:00 p. m. on June 30, he performed an autopsy in Birmingham on a body identified to him as that of Gwendolyn Bonner. He described the decomposed state of the body and removed a bullet from the deceased’s brain. He turned it over to Mr. Lawden Yates. Dr. Embry stated that he removed the shoelaces from the deceased’s wrists and turned them over to Mr. John Case. Dr. Embry gave his opinion that the cause of death was due to the gunshot wound to the head.

On cross-examination, Dr. Embry reviewed the findings in the report of Toxicologist Chip Walls concerning alcohol content in the deceased’s body fluid and stated that the finding reported therein were consistent with that of a body in the process of decomposition. He could not state whether the deceased had been drinking prior to her death. Dr. Embry estimated that the time of death was somewhere between Friday evening, June 27, and 6:00 a. m., Saturday, June 28, 1980.

Firearms and toolmarks expert Lawden Yates testified that he examined the bullet recovered from the body of the deceased. The bullet was a .38 caliber fired from either a Charter Arms or R. G. made revolver.

Mr. Everette Kirby, a maintenance man for the apartment complex at which the deceased had lived, testified that, around 9:00 or 9:30 a. m., on June 27, he saw the appellant in apartment number 147, which was two apartments away from the deceased’s apartment. Mr. Kirby stated that he and Floyd Betters were sent to repair and paint apartment 147, which was vacant, and discovered the appellant there. He did not know and had never seen the appellant. Mr. Kirby testified that the appellant asked if it was okay to sleep in the apartment for a while. Kirby and Betters went to lunch at noon and, upon returning around 1:00 or 1:30 p. m., Kirby saw the appellant upstairs asleep. He did not see him again.

Mr. Floyd Betters testified in addition to the testimony of Everette Kirby that he had asked Kirby to go upstairs to look for a drop cloth to cover the floor. He heard someone and some children and afterwards exited the apartment with Kirby. Mr. Betters stated that Kirby re-entered the apartment to see who was upstairs while he went to the manager’s office. He did not ask the appellant his reason for being in the apartment. Mr. Betters stated that the appellant talked to them while they worked and said that he was waiting for his old lady and would be leaving around 3:30 or 4:00 p. m. He did not recall the appellant saying that he entered the apartment to use the bathroom but did remember his talking about sleeping.

Mr. Betters testified that he knew of Miss Bonner’s request to change her door locks shortly before her death but did not know the reason for it. He stated that he did not know her boyfriend but knew that she owned a 1977 tan Subaru with a beige top. Mr. Betters did not know if a bullet hole in the deceased’s car had been made by her boyfriend.

The deceased’s brother, Edward Bonner, testified that, on June 30, he arrived at his sister’s apartment before the police and inspected it and his deceased sister. Bonner stated that two sets of car keys, a diamond ring, a high school ring, an iron, duffel bag, and jewelry box were missing from the apartment. He did not know whether the items were missing before June 30. He also stated that his sister’s car, a 1977 Subaru, was taken. The car’s tag receipt containing its VIN was properly introduced into evidence. Mr. Bonner testified that a bullet hole in the car had been there for several months and he did not know who had made it. He stated that he did not think that his sister knew her most recent boyfriend, Alvin Jackson, when the bullet hole was made. Mr. Bonner stated that he did not discuss his sister’s personal affairs or business with her.

Mrs. Lucy Bonner, the deceased’s sister-in-law, testified that missing from the deceased’s apartment were a wristwatch, an engagement ring, and a necklace. She stated that Alvin Jackson had given the deceased the engagement ring but that they had broken up on Wednesday, June 25, because he did not have a job. She did not know of any trouble between them. Mrs. Bonner stated that Jackson did not shoot the deceased’s car.

Mr. Ned Gattis, an instructor at Gadsden State Technical College, testified that he had known the appellant for several years. Around 3:00 a. m., on June 28, Mr. Gattis returned to Gadsden from an out-of-town wedding and saw the appellant driving the deceased’s car. He did not know the owner of the car but had seen it parked at the apartments located on Hillside Circle where the deceased lived. He described it as a tan Subaru. About five minutes later, Mr. Gat-tis saw the appellant standing beside the car parked at a laundromat.

Atlanta Police Officer R. A. Brown took the stand and testified that, around 3:00 p. m., on August 1, he arrested the appellant at an Atlanta service station for a City ordinance violation. Officer Brown stated that the appellant identified himself and, after being advised of his rights, stated that he wanted to leave the keys to the Subaru that he was driving with a friend. Officer Brown took the keys and found that they fit a 1977 beige Subaru with a Georgia license plate. He requested a tag verification which indicated that the license plate on the Subaru belonged to a Ford car. Officer Brown asked the appellant if the car was his, to which he affirmatively replied, stating that he had bought it about three weeks ago for $2,000. The appellant could not produce a title certificate. The car was searched and a blank tag receipt and car invoice were found. In addition, the attache case, small black case, jewelry box, a few pieces of jewelry, and a duffel bag were found by Officer Brown. Officer Brown stated that later a complete inventory was conducted. He ascertained that the owner of the car was the deceased.,

Gadsden Police Officer Howard Stakley testified that he retrieved the 1977 Subaru from Atlanta and drove it to Gadsden. He ascertained that it was owned by the deceased. At 12:37 a. m., on August 2, Officer Stakley began an inventory of the car’s contents. The inventory revealed, among other things, numerous items of personal clothing, sewing material, an iron, a purple bedspread with stains and portions cut or torn off, various pieces of assorted luggage, several assorted tools, an R. G. model 31 .38 caliber gun box, numerous assorted toiletries, a spare set of ear keys, and a set of scales.

On cross-examination, Officer Stakley testified that the bullet hole in the deceased’s car had been there for some time as it had rusted. He stated that Tommy Blast, once a boyfriend of the deceased, had made it. Officer Stakley testified that the police investigation revealed that the deceased had broken her engagement with Alvin Jackson shortly before her death and had expressed her fear of him.

Mr. Gerald Harris, an employee at a grocery store located two to three blocks from the deceased’s apartment, testified that seven to ten days prior to the killing the appellant entered the store and attempted to buy an extension cord but did not have enough money. Instead, the appellant bought a pair of long shoelaces. Mr. Harris stated that he had seen the appellant prior to selling him the shoelaces.

Gadsden Police Detective H. J. Copeland examined the deceased’s apartment on June 30. Viewing the photograph of the deceased previously introduced into evidence, Detective Copeland identified a piece of purple and white checkered cloth tied around the deceased’s ankles. He stated that a piece of cloth similar to that used to tie the deceased’s ankles was found by Sergeant Cox in Apartment 147.

On August 4, Detective Copeland and Sergeant Gartman transported the appellant from Atlanta to Gadsden. He and an Atlanta police gave the appellant his Miranda warnings prior to transportation. Upon their arrival in Gadsden on August 5, the appellant was again given his Miranda warnings. After testifying to the proper voluntariness predicate, Detective Copeland stated that the appellant said that he had bought the Subaru and had bought, in Atlanta, a gun, box of shells, and a holster for a friend named Skipper or Skippy. Detective Copeland stated that the appellant said the gun had come in a box but could not explain how a gun box had gotten into “his” car. The appellant said that he had sold a van for $300, went to Atlanta and gambled it into $2,000, and bought the gun for his friend because he needed some money. The man named “Skipper” or “Skippy” was never found.

On cross-examination, Detective Copeland identified a police drawing of the suspect made by Sergeant Gartman. It was introduced into evidence. Detective Copeland stated that he knew of the deceased’s broken engagement and that at one time Alvin Jackson had been a suspect. He did not recall whether he told the appellant anything about Jackson.

Gadsden Police Officer Teddy Cox testified that he worked in the police identification division and collected evidence on June 30 at the deceased’s apartment. He took into his possession the strip of cloth tied around the deceased’s ankles and on July 8 took into his possession similar pieces of cloth found in an upstairs bedroom of apartment 147. The strip of cloth that had bound the deceased’s ankles was properly introduced into evidence.

Mr. George Green, a neighbor of the deceased, testified that, around 7:30 p. m. on June 27, the deceased arrived at his apartment and visited with him on his porch for about twenty minutes. She left and went to her apartment but returned. Around 8:30 p. m. she went home for the evening. Mr. Green stated that Alvin Jackson had lived with the deceased for about two months prior to their break-up. He knew of no trouble between them. Mr. Green stated that the deceased told him that she was postponing her wedding because she was not ready. He knew that she had wanted to change her door locks. Mr. Green testified that the deceased had parked her car across the street when she went home. He last saw the car around midnight. Mr. Green got up around 5:00 the next morning and did not see the car at the place where the deceased had parked it the night before.

Mr. Ralph Phillips, an employee with the State Department of Forensic Sciences testified that, on June 30, he picked up from Dr. Embry in Birmingham some shoelaces. On July 1, he delivered them to Mr. John Case, a criminalist located in Jacksonville.

Mr. Everette Kirby was recalled to the witness stand and testified that, on June 27, he saw in an upstairs bedroom of apartment 147 the pieces of cloth found by Sergeant Cox on July 8. They were properly admitted into evidence.

Mr. John Case, a criminalist with the State Department of Forensic Sciences, testified to receiving the shoelaces delivered by Mr. Phillips. They were properly admitted into evidence. He received the three strips of cloth found by Sergeant Cox. He was able to reassemble the strips into one piece of cloth and stated that the strips had been torn from one piece of cloth. He said the strips did not appear to come from the bedspread found in the deceased’s car when the appellant was arrested.

Mr. Edward Bonner was recalled and identified as possessions of the deceased the scales, a set of car keys, jewelry box, and tote bag found in the deceased’s car when it was inventoried. The items were properly admitted into evidence.

Mrs. Lucy Bonner was recalled and identified as belonging to deceased a necklace and white jewelry box found in the deceased’s car when it was inventoried. The items were properly admitted into evidence.

At the conclusion of the State’s case, the appellant moved to exclude the State’s evidence on both counts contending that the State had failed to prove a prima facie case. This trial court overruled both motions. It also refused his request for the affirmative charge. The trial court granted the appellant’s motion to exclude the lesser-included offense of manslaughter under count one of the indictment.

In his own defense, the appellant took the witness stand, corroborated much of the State’s evidence, admitted being around the deceased’s apartment on June 27, and entering apartment 147. He denied seeing or driving the deceased’s car in Gadsden, stating that he bought it in Atlanta on June 29. Appellant denied sleeping in apartment 147, testifying that he entered it to use the bathroom, and denied buying shoelaces from Mr. Harris. He also denied killing the deceased.

Appellant’s only issue on appeal concerns whether sufficient circumstantial evidence was presented by the State on both counts so as to submit the case to the jury.

In considering the question as to whether the trial court correctly overruled the appellant’s motion to exclude the State’s evidence, we may only consider the evidence which was before the trial court at the time the motion to exclude was made. Kent v. State, Ala.Cr.App., 367 So.2d 508 (1978), cert. denied Ala., 367 So.2d 518 (1979).

The State’s case is clearly based upon circumstantial evidence. In Cumbo v. State, Ala.Cr.App., 368 So.2d 871, 874, cert. denied, Ala., 368 So.2d 877, we stated:

“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. .. . ” (citations omitted)

See also, Johnson v. State, Ala.Cr.App., 378 So.2d 1164, cert. denied, Ala., 378 So.2d 1173 (1979).

“It is our duty upon review to determine whether or not any theory of the evidence exists from which the jury could have excluded every hypothesis except guilty beyond a reasonable doubt. It is within the province of the jury to decide whether or not circumstantial evidence tending to connect the appellant with the crime excludes to a moral certainty every other reasonable hypothesis than that of appellant’s guilt. Cumbo, supra, at 875. If facts are presented from which the jury may reasonably infer that the crime has been committed, although established by circumstantial evidence, the question must be submitted to the jury. Hopson v. State, Ala.Cr.App., 352 So.2d 500, 502, affirmed, Ala., 352 So.2d 506 (1976).” Mauldin v. State, Ala.Cr.App., 376 So.2d 788, cert. denied, Ala., 376 So.2d 793 (1979).

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder and/or robbery 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. Dolvin v. State, Ala., 391 So.2d 133 (1980); Griffin v. State, Ala.Cr.App., 393 So.2d 523 (1981); Hopson, supra. The adoption of our new criminal code has not altered this rule.

In McDowell v. State, 238 Ala. 101, 189 So. 183 (1939), our Supreme 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.” (citation omitted)

The circumstantial evidence which enshrouds appellant is as follows: (1) Several days prior to the killing, Mr. Gerald Harris sold the appellant a pair of long shoelaces. (2) Around 9:00 or 9:30 a. m., on June 27, Everette Kirby and Floyd Betters found the appellant in apartment 147 which was located two apartments away from the deceased’s apartment. (3) Kirby saw the appellant asleep in an upstairs room of the apartment and identified the pieces of cloth found by Officer Teddy Cox on July 8 in an upstairs bedroom of apartment 147 as being there on June 27. (4) Mr. George Green last saw the deceased alive around 8:30 p. m. on June 27 and noted that he last saw her car around midnight, but when he got up around 5:00 the next morning it was gone. (5) On June 30, the decomposed body of the deceased was found in her apartment with her wrists bound by shoelaces and her ankles bound by a strip of cloth. (6) The cause of death was a gunshot wound to the rear of the deceased’s head. (7) Dr. Joseph Embry retrieved a bullet from the deceased’s brain and turned it over to firearms and toolmarks expert Lawden Yates who found the bullet to have been fired from either a Charter Arms or R. C. model .38 caliber revolver. (8) Dr. Embry estimated the time of death to have been between Friday evening, June 27, and 6:00 a. m., Saturday, June 28. (9) Around 3:00 a. m. on June 28, Mr. Ned Gattis saw the appellant driving a tan Subaru in Gadsden. (10) Edward and Lucy Bonner visited the deceased’s apartment and noted several items missing, including the deceased’s 1977 tan Subaru. (11) The Bonners later identified several items found in the car when it was taken from the appellant in Atlanta, as belonging to the deceased. (12) On June 30, Gadsden Police Officer Teddy Cox collected the strip of cloth binding the deceased’s ankles and on July 8, found two similar strips of cloth in an upstairs bedroom of apartment 147. (13) Criminalist John Case testified that the pieces of cloth received from Officer Cox were originally part of the same piece of cloth and could be fitted together. (14) On August 1, Atlanta Police Officer R. A. Brown arrested the appellant and impounded the tan Subaru which the appellant stated was his. (15) Officer Brown ran a tag verification upon the Georgia license plate on the car and found that it was not issued to the “appellant’s” car. (16) On August 2 Gadsden Police Officer Howard Stakley, while making an inventory of the items found in the Subaru, found a gun box once containing an R. G. model 31 .38 caliber pistol. (17) Officer Stakley found that Alvin Jackson, once the deceased’s fiance, did not shoot the deceased’s car and make the bullet hole found thereon. (18) The appellant, after being transported to Gadsden from Atlanta by Gadsden Police Detective H. J. Copeland and advised of his Miranda warnings, stated that he had bought the Subaru from a friend in Atlanta, and a gun for a friend in Atlanta but could not explain the presence of the gun box in the car.

It is clear from the above evidence that the State presented sufficient circumstantial evidence to establish a prima facie case of both murder and first degree robbery. §§ 13A-6-2(a)(l), -8-41(a)(l), -8-43(a)(1) Code of Alabama 1975 Amended 1975 (Amended 1977). Thus, the trial court did not err in overruling the appellant’s motion to exclude.

At the conclusion of all of the evidence, the trial court properly submitted the facts to the jury for its consideration. We find no error in the verdict of the jury as the evidence was sufficient for it to have reasonably inferred appellant’s guilt on both counts.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Billy Ray BLACK v. STATE of Alabama.
    7 Div. 829.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.

      Jake B. Mathews, Jr., of Merrill, Merrill, Mathews & Allen, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Billy Ray Black was indicted, tried and convicted of “escape in the first degree” in violation of § 13A-10-31, Code of Alabama 1975. He was sentenced by the trial court to a term of fifteen years’ imprisonment.

Billy Ray Black’s escape from the Calhoun County Jail with two other prisoners was not disputed at trial. The only pertinent fact disputed at trial was whether or not appellant “employed physical force, a threat of physical force, a deadly weapon or a dangerous instrument” during his escape as is required to raise the offense to one of escape in the first degree. This fact was resolved by the jury against the appellant as there were several witnesses who testified that during the escape appellant carried and threatened them with a “shank” (a metal weapon resembling an ice pick, sharpened at one end with melted plastic on the other end to be used as a handle.) The sufficiency of the evidence in this case is not questioned on this appeal.

I

Appellant first challenges the propriety of the trial court’s action of qualifying the jury venire outside the presence of the appellant.

Had this been a capital murder case, this argument would have been well founded. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962). However, even though some of the earlier cases may have left this issue unsettled as to non-capital cases [see Berness v. State, 263 Ala. 641, 83 So:2d 613 (1955), and cases therein cited], it is now quite clear that appellant’s presence was not required when the jury venire was organized and some prospective jurors were excused. Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975); Yancey v. State, 56 Ala.App. 577, 324 So.2d 292, cert. denied, 295 Ala. 430, 324 So.2d 296 (1975); Andrews v. State, 359 So.2d 1172 (Ala.Cr.App.1978). Moreover, as was the case in Andrews, supra, and Yancey, supra, the appellant, in the instant case, was present when the particular jury that heard this case was qualified and chosen.

II

Appellant’s other contention on this appeal is that the trial court erred in overruling appellant’s demurrer to the indictment. Appellant argues that the indictment was fatally defective because it failed to allege that appellant escaped from “lawful” custody. Instead, the indictment charged a first-degree escape from a “penal facility.” (R. 147)

Appellant asserts that without a “lawful” detention there can be no offense of escape; therefore, it must be spelled out in the indictment. In lieu of ruling on this assertion, we need only point to the case of Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.), cert. denied, 435 U.S. 981, 98 S.Ct. 1633, 56 L.Ed.2d 75 (1977), for the following statement as to the due process requirements for a sufficient indictment:

“An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.”

Based on these guidelines, which also embody our preference for substance over form in our modern pleading, we find that this indictment (R. 147) was clearly sufficient to apprise the appellant of the charge against him and to safeguard against double jeopardy and improper judgments. Sections 15-8-4, -25, Code of Alabama 1975; Summers, supra; Deason v. State, 380 So.2d 373 (Ala.Cr.App.1980); Johnson v. State, (M.S. June 23, 1981) (Ala.Cr.App.1981).

Therefore, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    James Dean JONES v. STATE.
    8 Div. 422.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.

      Donald E. Holt and Joe M. Patterson, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

On March 10,1980, appellant was indicted by the Grand Jury of Lauderdale County for transporting liquors or beverages in quantities of five (5) gallons or more. Sec. 28 — 4—115 Code 1975. In a trial by jury appellant was found guilty and sentenced to one year and one day in the Lauderdale County Jail.

On January 17, 1980, J. D. Burchett, an agent for the State of Alabama Alcoholic Beverage Control Board, was located on a stake-out of the State of Alabama liquor store on University Drive in Huntsville, Alabama. At approximately 9:40 a. m. a beige or off-white Chevrolet pickup truck with dual rear wheels and a camper shell on back parked at the rear of the liquor store and boxes were loaded onto the truck from the liquor store.

Agent Burchett testified over appellant’s objection that he had seen this truck on two previous occasions which were January 3, 1980, and January 10, 1980, both on a Thursday, at the back door of the University State Store in Huntsville. Agent Bur-chett testified that, on both of these occasions, boxes were being loaded from the store onto the truck. On one of these occasions Agent Burchett attempted to follow the truck but lost sight of it as it crossed the state line into Tennessee. As a result of these prior encounters with the truck Agent Burchett held a meeting on January 16, 1980, with Agent Kirk, Agent Presnell and Agent Little, all employees of the Alcoholic Beverage Control Board, to discuss a joint plan to follow the truck on its suspected route through Tennessee back into Alabama. At the meeting, the type and description of the vehicle were discussed and a plan developed to follow the vehicle into Tennessee and back into Alabama.

On January 17, 1980, the truck with the boxes from the State liquor store left that store at approximately 9:40 a. m. Agent Burchett followed the truck but lost sight of it. He radioed to Agents Presnell and Kirk that “the truck was coming.” As the truck in question passed they followed the truck on Highway 64 until it reached Laud-erdale County, Alabama, at which time they stopped the truck. Lauderdale County is a dry county. Agent Kirk told appellant that he believed that there was probable cause to believe there was liquor in the back of the truck and that they were going to search it. Agent Kirk got the keys from the truck and opened the back end and threw back the tarpaulin where thirty-three (33) cases of whiskey and a case of wine were found. Appellant was then arrested and the liquor was confiscated.

At the trial appellant objected to the introduction of the contents of the search and the objection was overruled. Appellant contends that this ruling was in error.

A search conducted under exigent circumstances where there is probable cause falls within one of the exceptions to the requirement of a search warrant before conducting a search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Daniels v. State, 290 Ala. 316, 276 So.2d 441; Baker v. State, Ala.Cr.App., 340 So.2d 854; Richardson v. State, Ala.Cr.App., 376 So.2d 205.

Exigent circumstances justify a warrantless search of an automobile stopped on the highway where there is probable cause, because the car is movable, the occupants would be alerted, and the contents may never be found again if a search warrant is required. Chambers v. Maroney, supra. It is also not practicable to obtain a search warrant for an automobile stopped on the highway because the vehicle can be quickly moved out of the jurisdiction or locality in which the warrant is sought. Carroll v. United States, supra.

In this case the truck in question was under surveillance between two states and at least three counties of Alabama. The agents had no way of knowing for sure where the truck was going. The liquor on the truck did not become contraband until it entered a dry county. It would have been impractical to obtain a search warrant under the circumstances. The truck was capable of moving out of the dry county or to a location to dispose of the liquor. The opportunity for a search was fleeting and exigent circumstances existed, coupled with probable cause.

At the time the search took place there was probable cause to suspect that liquor was in the truck in question. Boxes were seen by Officer Burchett being loaded from the State liquor store on the truck in question. It can be inferred that boxes taken from a store that only sells liquor would contain liquor.

The truck in question was known prior to this occasion to all the agents on the case. It had been described in a meeting the day before. The truck’s description was quite distinctive. Agent Kirk and Agent Presnell had been placed on a specific route appellant was expected to take. It was not necessary for Agent Burchett to describe again the truck in question over the radio to Agent Kirk. Agent Kirk and Agent Pres-nell could assume Agent Burchett was referring to the truck which was the subject of the investigation when he said that “the truck” was coming.

Appellant did not testify nor was any evidence offered in his behalf.

When an officer who has probable cause to suspect that a vehicle is carrying contraband radioes ahead to have it stopped the other officers who stop the automobile have probable cause to arrest without a warrant and the ensuing search is valid. Cook v. State, 56 Ala.App. 250, 320 So.2d 764; Brown v. State, 55 Ala.App. 615, 318 So.2d 311.

Appellant next contends that § 28-4-200 of the Code of Alabama (1975), the violation of which is a misdemeanor, should have been the statute controlling rather than § 28-4r-115, which is a felony because the liquor being transported was “Alabama tax-paid” and therefore not included in the liquors “prohibited by law in Alabama” as referred to in § 28-4-115.

§ 28-4-115 of the Code of Alabama was passed by the Alabama Legislature in 1927 as part of the “prohibition laws.” In 1936 when the “Alabama Beverage Control Act” was passed § 28-4-115 was not repealed but limited in its application to what the Alabama Legislature termed “dry counties.” 1936-1937 Alabama Acts, Ex.Sess., No. 66, § 51, p. 82 now § 28-2-l(b) of the Code of Alabama (1975).

§ 28-4-115 of the Code of Alabama (1975) provides:

“It shall be unlawful for any person, firm or corporation or association within this state to transport in quantities of five gallons or more any of the liquors or beverages, the sale, possession or transportation of which is prohibited by law in Alabama. Any person convicted of violating this section shall be guilty of a felony and, upon conviction, shall be imprisoned in the penitentiary of this state for a period of not less than one year, nor more than five years. (Acts 1927; No. 605, p. 704; Code 1940, T. 29, § 187.)”

The words “prohibited by law in Alabama” do not refer only to untaxed liquor, but refer to § 28-4-1(6) which defines “prohibited liquors and beverages” as:

“a. Alcohol, alcoholic liquors, spirituous liquors and all mixed liquors any part of which is spirituous;
“b. Foreign or domestic spirits or rectified or distilled spirits, absinthe, whiskey, brandy, rum and gin;
“c. Vinous liquors and beverages;
“d. Malt, fermented or brewed liquors of any name or description manufactured from malt wholly or in part or from any substitute therefor;
“e. Beer, lager beer, porter and ale and other brewed or fermented liquors and beverages by whatever name called;
“f. Hop jack, hop ale, hop weiss, hop tea, malt tonic or any other beverage which is the production of maltose or glucose or in which maltose or glucose is a substantial ingredient;
“g. Any intoxicating bitters or beverages by whatever name called; and
“h. All liquors, liquids, drinks or beverages made in imitation of or intended as a substitute for beer, ale, rum, gin, whiskey or from any other alcoholic, spirituous, vinous or malt liquor and any liquor, drink or liquid made or used for beverage purposes containing any alcohol.”

§ 28-4-1(6) existed as Alabama Code § 4615-4619 (1923) when the Alabama Legislature passed § 28-4-115 in 1927. § 28 — 4-1(6), like § 28-4 — 115, was limited in its application to “dry counties” when the “Alabama Beverage Control Act” was passed in 1936. 1936-1937 Alabama Acts, Ex.Sess., No. 66, § 51, p. 82, now § 28 — 2-l(b) of the Code of Alabama (1975).

§ 28-4-200 of the Code of Alabama (1975) provides:

“Any person 19 years of age or over shall be entitled to have in his possession in his motor vehicle or a private residence or place of private residence or the curtilage thereof in any dry county in this state for his own private use and not for resale not more than the following quantity of alcoholic beverages, as enumerated and defined in section 28-3-1, when such beverages have been sold or distributed by and through a state liquor store operated by the Alabama Alcoholic Beverage Control Board or a licensee of such board, and the containers of such beverages have affixed thereto such mark or identification and sufficient revenue stamps as to show that such alcoholic beverages were sold or distributed by a state liquor store or a licensee of the Alabama Alcoholic Beverage Control Board and that the required tax has been paid; three quarts of liquor and one case of malt or brewed beverages or three quarts of wine and one case of malt or brewed beverages; provided, however, that no alcoholic beverages shall be kept, stored or possessed in the passenger area of any vehicle or in the view of any passenger. (Acts 1971, No. 1265, p. 2194, § 1.)”

There is no conflict between § 28-4-115 and § 28-4 — 200. Johnston v. State, 54 Ala.App. 100, 304 So.2d 918. § 28-4-115 and § 28-4-200 are mutually exclusive. § 28-4-115 deals with transporting five or more gallons of liquor, while § 28-4-200 provides for an exception by allowing possession of less than five gallons.

As stated in Johnston v. State, 54 Ala. App. 100, 103, 304 So.2d 918, 921 (1974):

“[§ 28 — 4—200] . . . does not purport to make any provision that deals with transportation, or transportation of more than five gallons of prohibited liquors. It purports only to make an exception, allowing the possession of a prescribed amount of less than five gallons tax paid alcoholic beverages in dry counties for personal use. Heretofore, the possession of any quantity was a violation and would have prompted a prosecution and confiscation upon conviction.
“The 1971 Act [referring to § 28-4-200] does not even contain the word ‘transport’.”

§ 28-4-200 has no application in this case. Appellant was charged in the indictment with transporting, not possessing, five (5) gallons or more of liquor and was tried and found guilty on that charge. The evidence provides ample support for a verdict of guilty of transporting five gallons or more of liquor.

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

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Melisha VANDIVER v. STATE.
    8 Div. 473.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Dave Beuoy, Russellville, for appellant. Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Probation revocation.

Appellant insists that she was denied due process prior to revocation of her probation. Appellant was placed on probation following six forgery convictions. On November 13, 1980, the judgment entry noted that the trial court was “advised that the defendant may have violated the conditions of probation.” Appellant was arrested.

In Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), the Alabama Supreme Court established the following minimal due process requirements which must be met before probation may be revoked:

“1. Written notice to the probationer of the claimed violations of probation.
“2. Disclosure to the probationer of evidence against him or her.
“3. Opportunity of probationer to be heard in person and to present witnesses and documentary evidence.
“4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
“5. A written statement by the judge as to the evidence relied on and reasons for revoking probation.
“6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound reason why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)
“7. We see no valid reason for having two hearings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the probationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance.
“8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.
“9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Firoella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).” (Footnote omitted.)

We find that requirements 1, 2, 4, 5 and 9 were not complied with in the instant case.

Appellant’s attorney filed a “Notice of Appeal and Designation of Record” wherein he specifically requested “all the records, evidence, and proceedings had on such revocation hearing be transcribed, certified and transmitted to the Court of Criminal Appeals of Alabama.” However, the record is silent as to any written notice to the appellant of the claimed violations of probation. In addition, there was no indication in the record that the State disclosed to the appellant the evidence against her.

There was no order of probation included in the record delineating the “conditions of probation” the trial judge originally determined should apply to this probationer. Section 15-22-52, Alabama Code 1975, provides that the trial court must determine the conditions of probation and “may include” any or all of the conditions enumerated there. However, those conditions are not implied in every probation case. Any of those conditions the trial judge desires to impose must be incorporated in the written order granting probation. The probationer must be apprised of the specific conditions of probation and what conduct to refrain from. Therefore, the order of the trial judge revoking probation based on his finding “that the defendant had violated conditions of probation in that she FAILED TO AVOID INJURIOUS OR VICIOUS HABITS AND FAILED TO AVOID PLACES OR PERSONS OF DISREPUTABLE OR HARMFUL CHARACTER” is not supported by any showing that those grounds were ever conditions of her original probation.

Moreover, at the close of the hearing, the trial judge remarked:

“I’m going to revoke your Probation, but I’m not doing it by saying you’re guilty of robbery, don’t get me wrong, because I tried to stay away from it in asking, because that is a very serious charge and on this, I didn’t want to go into it any way, if I could help it, because that’s another question, but I’m going to revoke your Probation and I don’t have to state a reason, but I think both of you know why and so forth. I don’t think I have to state why, I mean to you, I’m not talking about legally. I think ya’Il know yourself why I would do it. ” (Emphasis added.)

Following this comment by the court, appellant’s counsel requested that a reason be given for revoking appellant’s probation, and the trial judge expounded:

“THE COURT: I can give you offhand a reason and I’ll make it joint, although I think with Rosemary, about drinking and whiskey, it was direct and even with Me-lisha being in a place — and the Court is going to take Judicial knowledge Marvin Hill’s is [sic] a bootlegger, if ya’Il want to contest it, I can show you 400 cases, everybody around here knows that he’s a bootlegger and being there with two juveniles and with her sister drinking, whether she ever touched a drop or not does not go along with conditions of Probation.
“MELISHA VANDIVER: When I got there, I called somebody to come and get me and pick me up to avoid the place. It was her ear, I went with her and up until now, Mr. Davis can tell you my record is clean. I have done exactly what he asked me to do or try to do.
“THE COURT: Well, as I say, basically that’s the reason, just general conduct. “MR. BEUOY: Thank you, Judge.” (Emphasis added.)

The trial judge did not file a written statement explaining the “evidence relied on and reasons for revoking probation” as required by Armstrong until three months after appellant’s notice of appeal and subsequent to the original deadline for filing the transcript with this court. All these omissions combined to abrogate the modicum of due process protections which have been consistently recognized and required by this court and our supreme court.

The State introduced an unsigned and unauthenticated “Supervisor’s Report on Delinquent Probationer” and then rested. The report was admitted into evidence over the appellant’s timely and specific objection that it was hearsay evidence. The trial judge called a police officer who testified that he arrested an intoxicated Rosemary Miller who was linked in the supervisor’s report to the appellant on the night of the alleged probation violation and whose probation revocation hearing was held jointly with appellant’s. The officer stated that appellant was not in the car with Rosemary Miller when he arrested her, and he offered no evidence bearing on appellant’s purported probation violation.

The court requested the State to call as a witness Marvin Hill, who the trial judge took “Judicial knowledge” as being a local bootlegger. Hill had purportedly given a statement to the probation officer in the previously introduced supervisor’s report which placed appellant at his home and drinking on the night in question. Since the State called neither the probation officer who wrote the supervisor’s report nor the police officer who gave a statement appearing in the report, Hill was the only witness “called” by the State in appellant’s case who was available for cross-examination.

Hill testified that appellant was present at his home with Rosemary Miller and two juveniles and, while the others drank vodka, the appellant did not take a drink. He pointed out that he had known the appellant most of her life and was a family friend. Thus the evidence only established that appellant spent part of one evening sitting at a table with three imbibing friends at the home of a family friend. This was an insufficient ground for revoking appellant’s probation, especially in light of the absence of the introduction of any conditions of probation.

It was up to the State to submit enough substantive evidence to reasonably satisfy the trier of fact that a condition of probation was breached. Jenkins v. State, 368 So.2d 329 (Ala.Cr.App.1979); Hill v. State, 350 So.2d 716 (Ala.Cr.App.1977). The State failed to produce enough substantive evidence át the probationary hearing, and the minimal due process guidelines established by the supreme court in Armstrong were not met. Therefore, this case is due to be reversed.

REVERSED AND REMANDED.

All the Judges concur.


text:
    William LEWTER v. STATE of Alabama.
    8 Div. 496.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Steven E. Haddock of Aldridge & Haddock, Decatur, for appellant.

      Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

William Lewter filed a petition for Writ of Habeas Corpus in the circuit court seeking to attack a conviction for “possession of a pistol” obtained in said circuit court on April 29, 1980, based upon a plea of guilty for felony possession of a pistol after having been convicted of a crime of violence as defined in § 13-6-152, Code of Alabama 1975. The habeas corpus petition also challenges the original conviction also obtained in the Circuit Court of Morgan County on March 5, 1947, wherein William Lewter entered a plea of guilty to a charge of grand larceny.

Following a hearing, the circuit court denied the habeas corpus petition and the appellant prosecutes this appeal from such denial by the circuit court.

At the habeas corpus hearing, the appellant had placed in evidence a copy of the minute entry of the grand larceny conviction obtained on March 5, 1947 in said circuit court. Without question this minute entry is silent on the question of whether or not the appellant was represented by counsel at the time of his pleading guilty, or offered counsel at the time of entering his plea of guilty and upon which he received an eighteen months’ sentence.

The appellant now seeks to set aside his possession of a firearm conviction and guilty plea entered on April 29, 1980 based upon the alleged lack of counsel or denial of counsel at the time of the 1947 grand larceny conviction.

I

The issue which this court must first address is whether the appellant is pursuing his proper post conviction remedy in Alabama in seeking to set aside the 1947 and subsequent 1980 convictions. In Vernon v. State, 240 Ala. 577, 200 So. 560 (1941), the Supreme Court of Alabama observed:

“Also, where the court proceeding and conviction under which the prisoner is held are of a court of competent jurisdiction and are regular on their face, it is not permissible to impeach the court’s jurisdiction by parol testimony. It is only when invalidity appears on the face of the proceedings that it may be impeached on habeas corpus. Ex parte Bizzell, 112 Ala. 210, 213, 214, 21 So. 371; State v. Savage, 89 Ala. 1(7), 7 So. 7, 183, 7 L.R.A. 426; Bray v. State, supra; Ex parte Hill Adams, 170 Ala. 105, 54 So. 501; Ex parte Lane, 12 Ala.App. 232, 67 So. 727; Ex parte Haley, 1 Ala.App. 528, 56 So. 245.”

Subsequently, Mr. Justice Stakely, speaking for the Supreme Court of Alabama in Griffin v. State, 258 Ala. 557, 63 So.2d 682 (1953) indicated the following, in answering a collateral attack on a judgment, through a habeas corpus petition:

“Without question it appears that the proceedings and conviction under which the petitioner is held are of a court of competent jurisdiction and are regular on their face. Accordingly it is not allowable to impeach the court’s jurisdiction by parol testimony. In order to impeach such proceedings on habeas corpus, invalidity must appear on the face of the proceedings. Vernon v. State, 240 Ala. 577, 200 So. 560; Johnson v. Williams, 244 Ala. 391, 13 So.2d 683.”
“Without in any way passing on the sufficiency of the allegations now before us, we think it proper to say that under the decisions in this state, the remedy in cases of this kind, if any, is either by a petition for a writ of error coram nobis, Johnson v. Williams, supra, or by motion for a new trial and review by appeal, Ex parte Gammon, 255 Ala. 502, 52 So.2d 369, dependent on the circumstances of the particular case.”

Later Alabama cases have expanded upon the use of the writ of error coram nobis as a means of post conviction review. Specifically, this court in Mayola v. State, 337 So.2d 105 (Ala.Cr.App.1976), cert. denied, 337 So.2d 107, (Ala.), pointed out the writ of error coram nobis filed in the circuit court was the proper legal remedy with which to raise the alleged denial or lack of counsel at the time of preliminary hearing, arraignment, trial, or trial based upon a plea of guilty. The exacting legal standards as to what a record must show are therein set out. Mayóla, supra.

It therefore follows that the Circuit Court of Morgan County was correct in denying the petition for writ of habeas corpus which sought to impeach the judgment of the circuit court by parol testimony at the habeas corpus hearing. Cases herein cited.

We are further of the opinion that our decision in this matter is further supported by the opinion of the Supreme Court of the United States in Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) which case notes that an uneounseled felony conviction may be used as a basis for imposing a civil firearms disability under Federal law until the proper validity of such prior conviction is challenged in a post conviction proceeding or otherwise removes the disability.

It therefore follows the judgment of the Circuit Court of Morgan County was correct in denying petition for writ of habeas corpus. The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Lewis CASEY v. STATE.
    2 Div. 297.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Rehearing Denied Oct. 6, 1981.

      J. L. Chestnut, Jr. of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

The appellant was indicted for first degree murder for the shooting of his wife, Gracie Nell Casey. After a jury trial, he was convicted of murder in the second degree and sentenced to thirty years.

On November 11, 1978, the appellant, an officer with the Greensboro Police Department, drove his wife to a club meeting. After the meeting, as the appellant and his wife were driving home, they began arguing. On their arrival at home, while they were still in the car parked in the driveway, they began to scuffle. The appellant removed his gun from his waist and was placing it under the seat when his wife grabbed the gun. The gun fired and the wife was shot in the abdomen. The appellant drove her to the emergency room at a local hospital and she was treated for the gunshot wound. She was later taken to the Druid City Hospital in Tuscaloosa where she died as a result of the gunshot wound.

The appellant made three statements regarding the shooting, one to Greensboro Assistant Police Chief George McKinney, one to Sgt. Gary Bice, and one to Hale County Sheriff Chester Colvin. All three statements tend to show that the shooting occurred as a result of the scuffle over the gun. However, the statement made to Assistant Chief McKinney, although very similar to the ones given to Sgt. Bice and Sheriff Colvin, contained one difference: the appellant said that when the argument started, “I picked up my gun and slipped the holster on my side and pulled my shirt down over the gun.”

During the trial, there was testimony indicating that appellant’s wife had, on occasion, gone out at night without her husband’s approval. There was also evidence that on one occasion the appellant had threatened to shoot his wife and one Cleveland Gooden, when he found them together in Gooden’s car.

Sheriff Colvin testified that when the appellant turned over his weapon it contained two “fired cartridges,” and four “unspent cartridges.”

Sgt. Bice, who saw the appellant at the hospital in Greensboro on the night of the shooting, stated that he noticed scratch marks on the appellant’s neck.

The appellant did not testify, nor did he present any evidence in his behalf.

I

The appellant insists that the verdict was contrary to the weight of the evidence presented by the State. In the present case, there was no direct evidence showing exactly what occurred at the time Mrs. Casey was shot. Only circumstantial evidence exists from which the jury could conclude that the appellant murdered his wife. Circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused. Creel v. State, 53 Ala.App. 504, 301 So.2d 267 (1974).

In the present case there was legal evidence from which the jury could by a fair inference find the appellant guilty of murder in the second degree. Trussell v. State, 57 Ala.App. 109, 326 So.2d 301 (1976); Haggler v. State, 49 Ala.App. 259, 270 So.2d 690 (1972). In our judgment, there was evidence from which a jury could exclude every reasonable hypothesis but that of appellant’s guilt. Dolvin v. State, Ala., 391 So.2d 133 (1980). Therefore, the trial court was correct in overruling appellant’s motion for a new trial.

II

The appellant contends that the verdict of the jury should be set aside because it was a “quotient” which was the result of a previous agreement by the jury.

The law is clear that if a jury agrees in advance that a verdict should be the result or “quotient of a division by twelve of the sum total of all the jurors’ separate assessments” of the appellant’s punishment, then a verdict brought about by such a previous agreement must be set aside. Sanders v. State, 243 Ala. 691, 699, 11 So.2d 740 (1943). However, when there is no agreement that the average estimate will be binding, and the tabulation is done merely for the purpose of arriving at a basis from which the jury can determine what the punishment is to be, and each individual juror is free to accept or reject the averaging of the sentence, then the verdict that is subsequently agreed upon is not a quotient verdict and is binding. Harris v. State, 241 Ala. 240, 2 So.2d 431 (1941). The vitiating fact is the agreement in advance to be bound by the result. Sanders v. State, supra.

In the present case, only two jurors gave testimony at the hearing on the motion for a new trial. One testified on behalf of the appellant and the other on behalf of the State. The testimony of the juror for the appellant indicated that there was a prior agreement, but on cross-examination she acknowledged that although they had previously “had a conversation about proceedings to determine a number by adding up and dividing by twelve” they did agree afterwards that the number of years the appellant was to receive would be thirty years. The juror presented on behalf of the State testified that the foreman tabulated the individual jurors’ assessments of punishment and divided them by twelve. After this was done, however, he stated that the jury discussed the verdict for about thirty minutes, and, before reaching a verdict, asked for additional instructions from the judge. During cross-examination the juror denied that he had agreed to be bound by a “quotient.” No scraps of paper or other evidence indicating the jury’s tabulations were introduced. Under these facts we do not believe that sufficient evidence was shown to indicate advance agreement to abide by the result of the averaging. See Storie v. State, Ala.Cr.App., 390 So.2d 1179, cert. denied, Ala., 390 So.2d 1184 (1980); Collins v. State, Ala.Cr.App., 365 So.2d 113, cert. denied, Ala., 365 So.2d 116 (1978).

Ill

Prior to trial the State agreed that it would furnish the appellant with a list of the witnesses who would be called by the State. On the list furnished to the appellant there appeared the name, “Angeline Nixon,” one of Mrs. Casey’s children. During the trial, instead of calling Angeline Nixon, the State called Sharon Nixon, her sister. Appellant complains that the substitution was in violation of the court’s pre-trial order to furnish the State’s witness list and prejudiced his case. During the trial the court made inquiry and determined that, in preparing his case, defense counsel had talked neither to Angeline Nixon nor to Sharon Nixon. The court concluded that the defense would suffer no disadvantage by permitting the State to substitute Sharon Nixon for Angeline Nixon.

Although this court looks with disfavor upon the intentional disregard of the trial court’s order, no authority has been cited to us that would require the State to provide the appellant with a list of witnesses to be called in its behalf. The authorities cited by the appellant are civil cases construing the rules of civil procedure.

In Thigpen v. State, 49 Ala.App. 233, 239-40, 270 So.2d 666 (1972), this court observed:

“[W]e do not deem the constitutional right to compulsory process in a criminal case to operate in such a manner as to compel pretrial discovery as to who in fact are witnesses for the State. Rather, the law assumes that defense counsel will act with due diligence so as to have such witnesses as necessary available at trial.”

See also, Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973).

Under the facts of this case, we believe it was a discretionary matter with the trial judge to allow the State to make the substitution and we fail to see how his action prejudiced the appellant.

IV.

The appellant claims that the trial court committed reversible error when it allowed the jury to separate without proper instructions. We have examined the record and fail to find that there was an objection made to the separation of the jury during the trial. We note that the transcript of evidence indicates the trial court’s belief that appellant had consented to a separation. The record shows that the court made the following remarks:

“THE COURT: Let the record show that the defendant has announced that he has no objection to the jury separating for meals and for the night under proper precautionary instructions by the court.”

Also we note that, at the time the jury was allowed to separate at the lunch hour, no objection was made. Therefore, even if appellant did not consent to the separation as the trial judge stated, appellant may not raise the illegal separation of the jury at the lunch hour for the first time on appeal. See Kenny v. State, 51 Ala.App. 35, 282 So.2d 387, cert. denied, 291 Ala. 786, 282 So.2d 392 (1973).

We have examined the record and transcript of evidence and find no error prejudicial to the appellant. Therefore, the judgment of conviction by the Hale Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Eddie B. BOWMAN v. STATE.
    3 Div. 254.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.

      Bob E. Allen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Montgomery County returned an indictment against the appellant, Eddie B. Bowman, charging him with the offense of grand larceny. Appellant entered a plea of not guilty. A jury found the appellant guilty as charged in the indictment. The trial court entered a judgment sentencing the appellant to the penitentiary of the State of Alabama for a term of five years. The appellant applied for probation. The trial court placed the appellant on probation for four years. Appellant gave notice of appeal to this Court.

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

The appellant states in his brief two reasons why his conviction should be reversed. First, the trial court erred to his prejudice when it denied his motion for a mistrial based on the ground that a witness testified that the appellant had stolen cigarettes from him on previous occasions; second, by refusing to grant appellant’s motion for a directed verdict because the state failed to prove a prima facie case against the appellant.

State’s evidence tended to prove that on the night of October 13, 1979 Mark Otter was employed by Bruno’s Food World, Inc. on Fairview Avenue in the City of Montgomery, Montgomery County, as head stocker and night manager. That he worked from eleven P.M. to seven A.M. That Mr. Otter knows the appellant. That on the night of October 13, 1979 at about 1:30 A.M. Mr. Otter saw the appellant in the store of Bruno’s Food World. That Mr. Otter and Bob Simmons were the only employees on duty at Food World Store on Fairview Avenue at the time. That Mr. Otter saw the appellant place twenty-six cartons of cigarettes in two grocery bags. That Mr. Otter locked the front door, and called the City Police. That appellant did not come by a checkout counter, or offer to pay for the cigarettes, but went to the front exit door with the two grocery bags of cigarettes in his arms, and when he stepped on the automatic door opener, the door did not open. That the appellant wiggled the door, and shook it, and it would not open. That after appellant rattled the door, he walked back to an aisle, and placed the two grocery bags of cigarettes down on the floor. The appellant then got some toilet paper, and went through the checkout counter, and then tried to go out the exit door, and asked Mr. Otter to let him out, this Mr. Otter refused to do. That the cartons of cigarettes the appellant placed in the bags were Kools and Winstons, and their value was one hundred thirty dollars.

State’s evidence further tended to prove that Mr. William R. Simmons was employed by Bruno’s Food World, Inc. on Fairview Avenue on the night of October 13, 1979. That at about 2:15 A.M. was the first time Mr. Simmons saw the appellant in the store. That appellant asked Mr. Simmons if he had any alcoholic beverages, some cold chámpale. Mr. Simmons told him that there was one bottle that was cold, and the appellant inquired if there was any more. That Mr. Simmons told the appellant that there were some back on aisle ten. That the appellant and his friend went back to aisle ten, and then the appellant returned to the checkout lane, and repeated his question to Mr. Simmons again. That later when Mr. Simmons was at the checkout lane, he saw the appellant over by the cigarettes. That the appellant stayed at the cigarette counter for some time, and when Mr. Simmons was not busy at the cash register, Mr. Simmons went over to the cigarette counter. That later on Mr. Simmons saw the appellant try to leave the store at the front exit. That at that time the appellant had in his arms two bags that contained twenty-six cartons of cigarettes in them. That when the appellant could not get out of the front exit door, he went back to the aisle where toilet paper is kept, with the two bags of cigarettes, and then came back out of the aisle with only some toilet paper to the checkout counter, and paid for the toilet paper. That there was only one checkout counter open at this time. That the appellant did not attempt to pay for the cigarettes. The appellant did attempt to go out of the front door of the store without paying for the cigarettes. When the police arrived, the appellant, his friend and other people were near the exit door, and when the exit door was unlocked, Mr. Otter was standing near the door. That the person who was with the appellant began to swing at, and got in a scuffle with Mr. Otter, and the appellant ran, and the police chased him, and caught him, and arrested him, and his friend, who was in a scuffle with Mr. Otter, ran the other way, and was not caught. The two bags of cigarettes were brought from the aisle where the appellant placed them to the checkout counter, and the twenty-six cartons of cigarettes were counted by the police officers.

The appellant testified that he went to the store to buy pampers for his baby. That he did not enter the store with a friend, and did not know the person who swung at Mr. Otter. That he did not take, or have anything to do with, any cigarettes. That he bought toilet paper, paid for it, and when he tried to leave the store, he found the exit door locked. That he did run, and the police caught him, but he was not running very fast, and he ran because the police began to rough him up when he got out the exit door. That he had been convicted for a felony in two cases, but it was all a mistake.

The first error complained of by the appellant occurred during the redirect examination of state’s witness, Mr. Mark Otter, the manager of Bruno’s Food World Store on Fairview Avenue in the City of Montgomery by state’s counsel, Mr. Gillis. We quote from the record:

“MR. GILLIS:
“Q. Why did you lock the door?
“MR. ALLEN: We object to why.
“THE COURT: I will let him say why. Overruled.
“Q. (By Mr. Gillis) Why did you lock the door?
“A. Because he stole some cigarettes before.
“MR. ALLEN: We object to that.
“THE COURT: I sustain it. Do not consider, ladies and gentlemen, that last answer. It does not have anything to do with this case.
“MR. ALLEN: That is so prejudicial, we move for a mistrial.
“THE COURT: I deny your motion. And I am going to ask the jury again to just remove that from your thinking. Do not even consider that last answer in any way at all. And I am going to ask if you, each of you can do that. Can you disregard that from your minds, completely?
“(At this time, the above question was propounded to each of the twelve jurors individually by the Court, and each answered affirmatively)
“THE COURT: Let the record show that all of the jurors have assured the Court that they could completely disregard that last answer.”

The trial judge immediately upon the witness stating: “Because he stole some cigarettes before,” excluded the statement from the consideration of the jury, and instructed the jury not to consider the answer, and asked each juror individually if they could disregard that from his mind completely, and each assured in the affirmative. The granting of a motion for a mistrial is addressed to the sound discretion of the trial judge, and this Court should not disturb the ruling of the trial judge, unless there is something in the record to show that the trial judge has abused his discretion. We hold that the trial judge did not abuse his discretion by overruling appellant’s motion for a mistrial. If the statement by the witness complained of was erroneously allowed in evidence, the trial judge promptly excluded it from the consideration of the jury. This action, in our opinion, corrected any prejudicial error. No prejudicial error is shown by the record in this respect. Wright v. State, Ala.Cr.App., 354 So.2d 838; Certiorari Denied, Ala., 354 So.2d 842; Napier v. State, Ala.Cr.App., 337 So.2d 62; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Adair v. State, 51 Ala.App. 651, 288 So.2d 187.

The second error complained of by the appellant is that the trial court refused his motion for a directed verdict, because the state failed to prove a prima facie case against the appellant. Appellant argues in his brief that the state did not prove the element of asportation in the crime of larceny. Asportation is defined as the felonious removal of goods. Webster’s New International Dictionary. Black’s Law Dictionary, Fourth Edition, defines asportation as any appreciable change of the location of the property involved, with felonious intent. State’s evidence tended to prove that the appellant was in the store, was seen putting twenty-six cartons of cigarettes in two paper bags, and did not go by the checkout counter, but went straight to the front exit door, and attempted to open it, and when he could not go out the exit door, returned with the two bags of cigarettes to an aisle, and placed them on the floor, and picked up some toilet paper, and went to the checkout counter, and paid for the toilet paper. That when the exit door was unlocked upon the arrival of the police, the appellant went out, and ran, and the police chased him, and caught him. We hold that the evidence was sufficient to submit the state’s case to the jury on the charge of grand larceny. That the trial court did not err in refusing to exclude state’s evidence, and refusing to direct a verdict for the appellant. Blakeney v. State, 31 Ala.App. 154, 13 So.2d 424, 244 Ala. 262, 13 So.2d 430; Martin, alias Walker v. State, Ala.Cr.App., 371 So.2d 460; Mauldin v. State, Ala.Cr.App., 376 So.2d 788; Certiorari Denied, Ala., 376 So.2d 793; Richardson v. State, Ala.Cr.App., 390 So.2d 1, Ala., 390 So.2d 4, Ala.Cr.App., 390 So.2d 6; Jones v. State, 55 Ala.App. 274, 314 So.2d 876.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Franklin M. RANDALL v. STATE.
    6 Div. 408.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.

      Jon B. Terry, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of an assault with the intent to murder Frank William Bryant. The court fixed defendant’s punishment at imprisonment for seven years and sentenced him accordingly.

The three following assertions of error are made by appellant:

“I. Evidence of a separate and distinct crime not charged in the indictment was erroneously admitted and requires this case to be reversed.
“II. Admission of evidence regarding defendant’s reputation for peace and quiet where defendant had not put that aspect of his character in issue was erroneous and requires this case be reversed.
“HI. Failure to exclude reference by the State in closing argument that defendant failed to call character witnesses which were equally available to both parties was erroneous and requires that this case be reversed.”

As to I, there was considerable evidence, some of it very indefinite and confusing, as to an assault upon another person, one Steven King, a few moments before the alleged assault upon William Bryant, the one on the front porch of a house owned by Mr. King and the other in the front room of the house. It is reasonably clear from the evidence in the instant case that the consummated assault upon Mr. King was not made by defendant but by one Perry Goodman and one Johnny Childers. The conviction of Childers has been affirmed. Childers v. State, Ala.Cr.App., 389 So.2d 193 (Oct. 7, 1980), in which the issues, on appeal, were different from the issues on this appeal. Childers and defendant herein were in their twenties, while each of the two alleged victims was about fifty years of age. Appellant emphasizes the general exclusionary rule that testimony as to other offenses is not admissible. Appellee replies by emphasizing exceptions to the general exclusionary rule. Both rely upon Lucy v. State, Ala.Cr.App., 340 So.2d 840 (1976), cert. denied, 340 So.2d 847 in which the following statement of Judge McElroy, as now found in Gamble, McElroy’s Alabama Evidence, § 69.01(3) (1977) is quoted:

“Evidence of the accused’s commission of another crime is admissible if such other crime is inseparately connected with or is a part of the res gestae of the now-charged crime. This rule is often expressed in terms of the other crime and the now-charged crime being parts of one continuous transaction or one continuous criminal occurrence.”

The parties, however, do not come to an agreement on the question of the admissibility of the particular evidence, appellant saying that as the evidence shows that the defendant did not make an assault upon King, the evidence as to such assault was not relevant in the instant case and appellee saying that it “was so intertwined and part of the transaction in question that is was properly admitted and was in no way prejudicial to the Appellant.”

We are disappointed by reason of a lack of clarity of the evidence on the particular subject. In fact, there is much room for clarification in several respects as to the evidence as a whole in this case. We find several instances in which it was not made clear as to the person to whom the personal pronoun “he” or “him” was referable, unless we go outside the immediate context containing the reference and look for the last antecedent of the pronoun. We believe that perhaps the jury, who heard and saw, was not as confused as one who reads the transcript, for the reason that probably in most of the instances when a witness referred to defendant as “he” or “him,” the witness, by movement of a hand or a finger, or his head or his eyes, was directing attention to the defendant. Although it seems to us that it was made reasonably clear to the jury that it was Childers who chiefly, if not exclusively, assaulted King, there are indications in the transcript of the proceedings, which, however, did not come to the attention of the jury, that a separate indictment had been returned against defendant herein, as well as Childers, for the alleged assault upon King with intent to murder him.

Incidentally, we observe other portions of the transcript that tend to confuse. One is that on occasions the name “Reynolds” is found in the transcript, which we have determined was meant for the defendant “Randall.” We have endeavored to keep these confusing parts of the transcript from adversely affecting either party or anyone else; we do not deem them to have been the fault of any one party or any one person alone. We blame neither the judge, nor either party, nor any lawyer, clerk, court reporter, typist or any other person. We mention the irregularities chiefly to show all concerned that none of them has led us to our determination of the issues on appeal, even though they have made our determination at least doubly difficult.

Appellant’s first sentence in his brief under the statement of his contention I is, “The Court allowed, over objection, evidence that a Mr. Stephen King was cut with a knife while standing at the door of a house belonging to him. (R. 33).” Page 33 of the record shows:

“Q. After this was all over did you see Mr. Steven King?
“A. Yes, sir.
“Q. Would you describe his appearance or condition at that time?
“A. Yes, sir.
“Q. What was it?
“A. He was stabbed in the side, cut in the jaw. And then his face up there—
“MR. PERRY: Your Honor, I would object to what he seen on someone else. They are bringing in something else about a crime about something else that happened to some other person other than the parties involved in this suit. They are bringing in without any pretense of it having any relevancy to this case. It has no materiality to the issues before the jury and this Court at this time. We would object to it on those grounds.
“THE COURT: Overruled.
“Q. Okay. What if anything did you do with Mr. King after you saw him in this condition?
“A. His son took him to the doctor.
“Q. You said when you went inside this house — When you went inside this door and shut it you put a—
“A. A wooden latch on it.”

The objection shown to the material just quoted is the only objection we find that was made to evidence pertaining to the assault upon King. William Bryant, the alleged victim in the instant case, was the witness on the stand when the objection was made. He had already testified at length to a fast moving incident that commenced about 3:30 P.M. July 7, 1979, at the Casino, located on Eleventh Avenue and Twenty-sixth Street in Bessemer, moved across the street to a house owned by King, on the front porch of which King was stabbed by Childers and in the front room of which the alleged assault by defendant upon Bryant took place. Before the objection was made, the particular witness had testified that he had played a game of pool with Childers and had won the game, that Childers became mad and started arguing, that Childers had a knife and followed the witness. His testimony continued:

“Q. Did you pick up the stick first or did Johnny Childers pull the knife first?
“A. I picked up the stick first because he had pulled the knife. I got the stick— got the stick to keep him off me — from cutting me with the knife.
“Q. He had pulled a knife on you?
“A. Yes, sir.
“Q. Did you see this Defendant?
“A. Yes, sir.
“Q. While this was going on?
“A. Yes, sir.
“A. He was in the Casino — come out of the Casino, him and the other boy, Goodman boy come out of the Casino together.
“Q. And what did they do, this Defendant and the Goodman boy?
“A. He pulled out a knife and started running too. Steven King told me to run in the house.
“Q. And this Defendant, did you see him with a weapon?
“A. Yes, sir.
“Q. What did he have?
“A. He had a durtch.
“Q. Would you tell us what a durtch is?
“A. It was a white-handled durtch about that long.”

The witness further testified that the defendant, defendant’s friends Childers and Goodman, all three, had knives, that the witness ran to King’s house, where King had told him to run, went in the house and that thereafter the defendant “stabbed the door and kicked the door down and come on in.” He said that he and the defendant then started tussling and that defendant “stabbed at the witness two times with a knife” and told the witness two times that he was “going to kill” the witness. He further testified that while he was holding the defendant’s hand that had the knife or durtch in it, one Calvin Greer appeared on the scene in the house with a pistol and put an end to the tussle between the witness and defendant, and defendant left the premises.

If the objection made by defendant was as to evidence as to the attack upon King by Childers, it came too late, for the testimony already disclosed that both Childers and King were involved in the initial part of the incident that apparently terminated with the confrontation between defendant and Bryant in the front room of King’s house. Before the objection was made, the parties to the incident and the circumstances of the incident had been so inextricably linked together that they could not have then been satisfactorily separated. It is to be noted also that the objection was made after the question asked had been largely answered, that the question was answered no further thereafter and that counsel for the State then proceeded with another question. The action of the court in overruling defendant’s objection was not erroneous.

As to appellant’s contention II, he directs attention to the following portion of the cross-examination of the defendant:

“Q. What about your general reputation, Mr. Bryant?
“A. Sir?
“Q. What about your general reputation, is it good?
“MR. TERRY: Your Honor—
“Before I went to the penitentiary—
“THE REPORTER: Just a second, I can only take one at a time.
“THE COURT: Overruled.
“THE REPORTER: I didn’t get your objection.
“MR. TERRY: I objected to him asking a general character representation when his character is not an issue in this trial.
“THE COURT: Did you say general or did you specify to violence?
“MR. TUCKER: I will restate it. Your general reputation in the community for violence?
“A. I used to get in a few fights when I was young. But since I got out in the community where I live at, don’t nobody know me in the community where I stay.
“Q. In ’71 you were convicted of grand larceny; 1971, is that right?
“A. Yes, sir.
“Q. And you got a one-year and one-day sentence for stealing?
“A. Yes, sir.
“Q. In ’73 you were convicted of robbery and you got twenty years?
“A. Yes, sir.
“Q. And your lawyer asked if you were ever arrested any more. Do you have any other arrests on you?
“A. No, sir.
“Q. Wasn’t you arrested with assault with intent to murder before this incident?
“MR. TERRY: Your Honor, I object to that.
“THE COURT: Yes, sir, sustain objection to that Mr. Tucker.”

Appellant argues in his brief that the “general rule prohibits the State from proving the accused’s bad general reputation respecting a particular trait of character,” that it was “therefore improper to allow him to be asked about his character for a specific trait since he had not introduced that character to prove his innocence” and that the “law in Alabama recognizes the principle that in the absence of Defendant placing a specific character trait into an issue, it cannot be elicited by the State.” In support of the contention, he sites Sorrells v. State, 44 Ala.App. 481, 213 So.2d 687 (1968); Bedsole v. State, 274 Ala. 603, 150 So.2d 696 (1963). We read the objection of defendant as directed to State’s counsel’s “asking a general character representation,” and the transcript shows that after the question was changed to call for an answer as to his “general reputation in the community for violence” no further objection was made. We find no error in the court’s action as to the matter.

We should note also, we think, that the injection into the case by the State of testimony by defendant as to his reputation was prompted perhaps by the immediately preceding conclusion of the direct examination of the defendant as a witness, wherein the victim’s “general reputation in the community for violence” was injected. It is as follows:

“Q. On any occasion, are you aware or do you have knowledge of Mr. Bryant’s general reputation in the community for violence?
“A. It is bad.
“Q. What do you mean by bad?
“A. He fights.
“Q. You have known of him to be in fights?
“A. Yes, sir. Like I say, he used to go with my aunt.”

Appellant’s remaining contention, number III, is addressed to the following occurrence during the closing argument to the jury of counsel for the State:

“MR. TUCKER: But, you didn’t see a single citizen that lives out there in that community with them that knows them, besides that man, who came in here and testified as to their bad reputation?
“MR. TERRY: Your Honor, I object to what witnesses we use in. this trial. He knows that is improper argument.
“MR. TUCKER: There is nothing improper about somebody not bringing in witnesses. They are available to both parties.
“THE COURT: Overruled.”

Although what was meant by the quoted statement of State’s counsel is not as clear to us as we would like for it to be, we are not persuaded that it constitutes argument calculated to cause a jury to draw an inference unfavorable to an opposing party by reason of his failure to present witnesses who are equally available to both parties. It seems that the argument was not addressed to the failure of either party to produce evidence as to “their bad reputation.” Although it is not certain, it seems that “their bad reputation” refers to the “bad reputation” that defendant said Bryant had for violence. Counsel for the State had the right, with fairness to defendant, to comment upon the fact that the evidence as to Bryant’s reputation consisted of the testimony of defendant as distinguished from the testimony of some person who had no interest whatever in the case being tried or its outcome. The second sentence of the objection of defendant’s counsel to the argument, wherein he said, “He [State’s counsel] knows that is improper argument” is hardly ever, if ever, justified. That statement, the last statement, is to be taken into consideration in connection with the court’s ruling on the objection. If the court had then sustained the objection, it could logically follow that it did so on the ground that State’s counsel had made an argument that he knew was improper. Taking all the circumstances into consideration, we find that the court’s ruling was not erroneous.

Notwithstanding our conclusion that the evidence in the case fails to show that appellant seriously injured Bryant, that there was considerable evidence to the effect that appellant was greatly provoked by the violence and insulting language of Bryant directed at appellant and that appellant suffered a serious injury to his head by being hit thereon by Bryant with a stick, we are convinced that the evidence is ample to support the verdict of the jury and uphold the order of the trial court in overruling defendant’s motion for a new trial.

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.

      . We deem that it is understood that “Mr. Randall” was meant.


author: BOWEN, Judge.

text:
    Lawrence Shelton GILBERT v. STATE.
    7 Div. 831.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Henry E. Lagman, Birmingham, and Richard W. Bell, Pelham, for appellant.
    Charles A. Graddick, Atty. Gen., and Larry L. Raby, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of diazepam (Valium) in violation of the Alabama Controlled Substances Act. Section 20-2-1 et seq., Code of Alabama 1975. Sentence was forty-two months’ imprisonment.

I

The defendant alleges that error occurred when the jury venire was divided into two panels without his participation. The only indication of what actually or allegedly occurred in the trial court is found in the objection of defense counsel.

“MR. BELL: First of all, we would like to interpose an objection to striking a jury from what has been designated as Panel A in the Circuit Court of Shelby County, since this panel was chosen arbitrarily by persons unknown to the Defendant, and the process of which choosing said Panel A is unknown to the Defendant. Furthermore, it appears that only the first half of the original jury list given to the attorneys this morning has been selected as Panel A and that there was no presence of Defendant or his attorneys at the time that these jurors were selected and we object to striking from that Panel A and not the whole jury venire.
“THE COURT: The Court would overrule the objection.”

The defendant does not contend that he was forced to strike from a jury list containing less than 24 names. Alabama Code 1975, Section 12-16-100. He does argue that:

“a division of the jury into more than one panel by any other manner than drawn lot constitutes an intentional omission of the jury roll of a large number of legally qualified citizens and as such is a systematic exclusion and impairment of the defendant’s right to due process under the Code of Alabama 12-16-100 and the Sixth Amendment....”

From the record it is not absolutely clear to this Court exactly what did occur in the trial court. At any rate it is certain that the record does not reflect any factual basis for the defendant’s objection. In view of this fact there is nothing for this Court to review. Henderson v. State, 373 So.2d 1218 (Ala.Cr.App.), cert. denied, 373 So.2d 1221 (Ala.1979). On appeal, the actions of the trial judge are presumptively correct in the absence of a showing to the contrary. Ballard v. State, 236 Ala. 541, 184 So. 260 (1938); Felton v. State, 47 Ala.App. 182,252 So.2d 108 (1971). Error is not presumed on appeal, but the burden is on the appellant to show error. Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956). This Court will not presume a fact not shown by the record and make it a ground of reversal. Duncan v. State, 88 Ala. 31, 7 So. 104 (1889). In the absence of anything in the record to the contrary, this Court will presume that the law as to summoning and challenging jurors was complied with. Smith v. State, 88 Ala. 73, 7 So. 52 (1889); Rash v. State, 61 Ala. 45 (1878); Gwathney v. State, 36 Ala. App. 102, 52 So.2d 829 (1951). See also Kitchens v. State, 251 Ala. 344, 37 So.2d 428 (1948); Edwards v. State, 205 Ala. 160, 87 So. 179 (1921); Moreland v. State, 373 So.2d 1259 (Ala.Cr.App.1979). Where the record is otherwise silent and does not disclose that evidence was offered in support of the defendant’s objection to the jury venire this Court will not review the overruling of his objection. James v. State, 246 Ala. 617, 21 So.2d 847 (1945); McMillan v. State, 16 Ala.App. 148, 75 So. 824, cert. denied, 200 Ala. 699, 76 So. 997 (1917).

II

The trial court can properly take judicial notice of whether a substance is designated as a controlled substance and can so instruct the jury. United States v. Berrojo, 628 F.2d 368, 369-70 (5 Cir. 1980); State v. Hobbs, 101 Idaho 262, 611 P.2d 1047, 1048 (1980); State v. Hutchens, 604 S.W.2d 26, 27 (Mo.App.1980). See also Bickerstaff v. State, 369 So.2d 315 (Ala.Cr.App.1979). There was no allegation at trial that Valium had been improperly classified as a controlled substance or that the State Board of Health had not complied with the requirements of the Alabama Uniform Controlled Substances Act in classifying Valium as a controlled substance. Compare McCurley v. State, 390 So.2d 25 (Ala.1980).

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.