author: TYSON, Judge.

text:
    Lewis BLACK v. STATE
    6 Div. 169.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      J. L. Chestnut, Jr. of Chestnut, Sanders & Sanders, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Lewis Black was indicted in three counts; (1) charging the unauthorized sale or conversion of rental property, (2) grand larceny, and (3) buying, receiving or concealing stolen property in connection with a “Denncrest brand portable sewing machine” of the value of $159.00 which Black had rented for a period of one week but had failed to either return or pay further rental fees on for some eight months thereafter. At trial, the State elected to seek a conviction under the first count of the indictment, charging the conversion of rental property, § 13-3-61, Code of Alabama 1975, and the jury found Black guilty of that offense. He was sentenced by the trial court to serve one year and one day in the state penitentiary, which sentence was subsequently reduced to two years probation. Black’s motion for a new trial was overruled by the trial court, and he brings this appeal to challenge the sufficiency of the evidence on which he was convicted.

The State called Mr. Harold Tygart, the business manager of the Evenpressure Company and its subsidiary, the AA Rent Village, located in the city of Tuscaloosa. Mr. Tygart testified that, on August 26, 1977, he had rented a Denncrest portable sewing machine to the appellant, whom he knew to be the manager of the Federation of Southern Cooperatives in Epes, Alabama. According to the testimony of Mr. Tygart and the documents produced by him and received into evidence, appellant signed a standard rental contract by which he agreed to return the machine by September 1, 1977, paid the initial week’s rental fee of $7.95, and left with the machine. The witness stated that, though the stated rental period was for one week, it “could have been continued by the paying of additional rent” (R. 11) in weekly increments, thereby allowing the rentor to keep the item for an indefinite period as long as the rental fees were in fact paid. Mr. Tygart further testified that the initial week’s fee of $7.95 was all that he received from the appellant, and appellant did not thereafter make any further rental payments, not did he return the sewing machine. When the machine was not returned on September 1, as provided in the agreement, Mr. Tygart stated, his office mailed several “reminders” to appellant concerning the machine and “indicated that to continue the rental in effect it would be necessary to pay rents” (R. 19); three such reminders were sent, one each on September 1, 6 and 16, to the address that appellant had provided when he signed the rental agreement. Mr. Tygart then stated that, as no rental payments were forthcoming and the machine was not returned, he telephone appellant on November 8 at his home in Greensboro to inquire about the machine and the unpaid rent, and was “informed that he (appellant) would send the check that day to catch the rent up to date” (R. 12). The witness further testified that he did not thereafter receive either the promised check or the machine, and thus drafted a letter to appellant, dated December 8, and in which he “demand [ed] that this Sewing Machine be returned to us today and all rental charges accrued be paid” (R. 15; State’s exhibit 3). Mr. Tygart stated that he sent this letter to appellant’s home address by registered mail, and subsequently received a receipt indicating that appellant had accepted the letter on December 24.

Mr. Tygart further testified that, having received no further reply to his letter, he again telephoned appellant on January 25, 1978, and told him that the unpaid rental was exceeding “the value of the machine, and ... he should return the machine and pay the past due rentals” (R. 17), to which appellant “indicated that he would send the check that day, the 25th of January.” Again, the promised check failed to materialize and after several unsuccessful attempts to telephone appellant, Mr. Tygart reached Mrs. Black on March 15, who made similar promises to pay. Finally, on May 1, 1978, Mr. Tygart signed a warrant against appellant, but he stated in his testimony that he never did receive the sewing machine.

Under cross-examination, Mr. Tygart testified that he was somewhat familiar with appellant’s occupation as manager of the Federation of Southern Cooperatives, and with that of Mrs. Black, who managed the Greene-Hale Sewing Cooperative. He also stated that appellant had not violated any company rules or policies at the time he rented the machine, and that the rental company never attempted any sort of civil action in order to recover the machine. Mr. Tygart did state that appellant made the attempt to return the machine after he had signed the warrant against appellant, but that he was told by Mr. Tygart that “it was out of my hands” (R. 28).

Earl Harless, a detective with the Tuscaloosa Police Department, testified that, on May 4, 1978, appellant had come to the police station carrying the sewing machine in a box. Detective Harless testified that he removed the machine from the box, and in doing so located a scrap of paper with the words, “Here yore damn machine. Lewis” written thereon (R. 40; State’s Exhibit 4). The officer could not state with certainty that appellant had actually written the note. Detective Harless further stated that, after advising appellant of his rights from a Miranda card, he and appellant talked about the incident.

At this point the State rested and elected to seek a conviction on the first count of the indictment; appellant’s motion to exclude the State’s evidence as to this remaining count was overruled. Appellant took the stand in his own defense, and stated that he was the manager of the Federation of Southern Cooperatives in Epes, Alabama, and had been so employed since 1969. He further testified that his wife was the manager of a separate organization known as the Green-Hale Sewing Cooperative, with which he was not affiliated in any business sense. Appellant stated that he had rented the sewing machine at the AA Rent Village at the request of his wife, who was injured and could not come to Tuscaloosa to get the machine, and subsequently “turned it over to my wife who was managing the Greene-Hale Sewing Coop” in Greensboro (R. 48). Appellant further testified that he had paid the rental fee of $7.95 out of his own funds because in the past the rental company had not required any advance payments on property rented to either appellant’s concern or the Greene-Hale Coop. He also stated that he understood the machine was to be rented for one week. Appellant testified that he first became aware of the dispute with the AA Rent Village when he saw a notice from the company in the mail, but appellant’s wife told him, “ ‘Don’t worry about that ... I’ll take care of it’ ” (R. 49). He further acknowledged the telephone conversation with Harold Tygart on January 25, and stated that, after that conversation, he instructed his wife to mail a check to the rental company because it was her responsibility and he was not authorized to write checks on the Greene-Hale Coop account. Appellant testified that the next time he heard about any problems with the rental company was when he learned of the warrant signed against him by Mr. Tygart, at which point he had a “long discussion” with his wife about the situation.

Under cross-examination, appellant described his employment arrangement, stating that the cooperative managed by his wife was a separate entity from the association managed by him, although he provided training and assistance to cooperatives like the one run by his wife. He further testified that his wife’s cooperative leased several other machines, but had paid the fees for the use of those machines.

Mildred Black, appellant’s wife, testified that she managed the Greene-Hale Sewing Cooperative in Greensboro, and that her husband’s employment was separate and distinct from hers. She stated that she had requested her husband to rent the sewing machine because “I was running short on equipment . . . and at that time I had knee surgery and I wasn’t doing a lot of driving” (R. 59). Mrs. Black further testified that she was informed of the expiration of the agreement by both a notice and a telephone conversation with Harold Tygart, at which time she told him that she was planning on returning the machine and paying the rent as soon as she rectified some financial difficulties. She stated that she did not want to return the machine without having the necessary funds to pay the rental fees. Mrs. Black also testified that she told her husband that she would take care of the problem since she did not want her husband using his money to pay the fees, but that at one point he told her that he would take the machine back if she did not, and he finally did so when he learned of the warrant.

Mrs. Black acknowledged under cross-examination that her husband did not return the machine until he had learned of the outstanding warrant. She also testified that she had talked to the company only in March, and did not remember any letters that her husband might have received from the company. She subsequently stated however that she knew about the letter received in December. She further outlined the financial difficulties that her business was undergoing.

On re-direct examination, Mrs. Black testified that she had done business on previous occasions with a Mr. Davis at AA Rent Village, but acknowledged that she had paid any accumulated rental fees on any items rented.

Mr. Charles Davis, president of AA Rent Village, testified that he knew the Blacks and had rented items to them on previous occasions, and that he thought that on those previous occasions, the rental had been paid after the return of the items.

On cross-examination, Mr. Davis stated that, on those occasions, he had had to telephone and send letters to the Blacks demanding the return of the items and payment for their use. Mr. Davis further stated on re-direct examination that he had difficulty with the Blacks in getting them to return the items that they had rented.

At this point, the defense rested, and appellant’s motion to exclude the State’s evidence for failure to show a prima facie case was overruled by the court.

I

Appellant phrases the issue presented on his appeal to be “whether there was proof of a criminal act by the appellant in regards the subject property and, if so, when and where did it occur” (Brief of Appellant at 14). Specifically, appellant argues that the State failed to show any acts on the part of the appellant which evidenced an intent to commit the offense for which he was convicted, and, even if the offense was shown, it was committed in a county other than Tuscaloosa County and thus venue was improper.

We find that appellant was convicted under the terms of § 13-3-61, Code of Alabama 1975, an apparently little-used section, which reads:

“Any lessee of personal property under a written or verbal rental contract or lease who, without the consent of the lessor, sells, gives away, removes or otherwise disposes of, conceals or converts such property so that the lessor cannot recover the same at the expiration of the lease or under the terms of the rental contract shall, on conviction, be punished as if he had stolen such property.
“It shall be prima facie evidence of intent to sell, give away, remove or otherwise dispose of, conceal or convert such property when the lessee fails to return such property to the lessor within seven days after notice mailed or delivered to such lessee following the expiration of the lease or rental agreement. The word ‘notice’ as used in this section shall be construed to include either notice given to the person entitled thereto in person or notice given to such person in writing, making demand for return of said property. Such notice in writing shall be conclusively presumed to have been given when deposited, as registered or certified mail, in the United States mail, addressed to the lessee at the address given at the time of making of the lease or rental agreement.”

The only decision of our courts to construe this particular statute states that it “pronounces the intent of the Legislature to designate such an offense as embezzlement and not larceny.” Franklin v. State, 47 Ala.App. 653, 259 So.2d 863 (1972). The statutory offense of embezzlement involves a situation where a person has rightfully assumed possession of some item of personal property by virtue of some trust, duty, agency or other such relationship (in this instance, the rental agreement), and subsequently either converts it to his own use or fraudulently secretes the item with an intent to later convert it to his own use or to that of another. § 13-3-20, Code of Alabama 1975; Cox v. State, Ala.Cr.App., 367 So.2d 535 (1978), cert. denied, Ala., 367 So.2d 542 (1979); Hollis v. State, 51 Ala. App. 181, 283 So.2d 632 (1973); Adams v. State, 43 Ala.App. 281, 189 So.2d 354, cert. denied, 280 Ala. 707, 191 So.2d 372 (1966); Esdale v. State, 37 Ala.App. 48, 68 So.2d 512, affirmed, 260 Ala. 45, 68 So.2d 519 (1953). It is, of course, necessary that there be sufficient evidence from which a jury could be convinced beyond a reasonable doubt of all of the attendant elements of the charged offense, including intent, and, in Reeves v. State, 95 Ala. 31, 11 So. 158 (1892), we find the following discussion of intent in embezzlement cases:

“In embezzlement, as in most crimes, the essence of the offense, or that which makes it criminal, is the intent with which the act is done. But that intent may be shown, or may be conclusively presumed, from the doing of the wrongful, fraudulent, and illegal acts, which, in their necessary results, naturally produce loss or injury to the person, natural or artificial, against whom the offense is committed. ‘The law presumes that every man intends the legitimate consequences of his acts. Wrongful acts, knowingly or intentionally committed, can neither by justified nor excused on the ground of innocent intent. The color of the act determines the complexion of the intent. The intention to injury or defraud is presumed when the unlawful act which results in loss or injury is proved to have been knowingly committed.’ ”

Appellant contends that there was no evidence to support a jury’s determination that he had the requisite intent to perpetrate the offense proscribed in § 13-3-61, but we find that that section allows intent to be inferred if there has been a failure to return the rented property within seven days after receipt of notice from the renting entity. This was certainly the case here, as it is undisputed that AA Rent Village dispatched a letter by registered mail to the appellant, who admitted that he accepted it. Further, the repeated failure of the appellant to either pay the fees or return the machine, despite the continued demands of the rental company, would certainly afford the jury facts from which they could have concluded that appellant intended to deprive AA Rent Village of its machine and the rental fees properly due it. And, the question of the effect of the testimony of the Blacks about their somewhat unclear business affairs on the determination of appellant’s guilt or innocence was one to be resolved by the jury. We further see no significance in the failure of AA Rent Village to pursue some alternative means of recovering the machine, nor do we deem it necessary to explore the technicalities of whether the property was in such a position that the company could not “recover the same” within the words of § 13-3-61. We hold that there were sufficient facts adduced by the State from which the jury could have concluded, beyond a reasonable doubt, that appellant was guilty of violating the above-quoted section.

A final point raised by appellant concerns the venue of his trial, in that appellant contends that, if he in fact committed any offense, he did so in Hale or some other county, but not in Tuscaloosa County where he was tried. Appellant seems to base this contention on the fact that he only rented the machine in Tuscaloosa County, and certainly had committed no wrongful act when he left that county with the sewing machine. We find this line of argument to be without merit. In § 15-2-6, Code of Alabama 1975, the following is stated:

“When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county.” (Emphasis supplied)

The offense for which appellant was convicted has as an obvious and important element the existence of a “written or verbal rental contract or lease” which seemingly must exist before a defendant is subject to criminal liability under this particular section. It is undisputed that appellant entered into the rental agreement in Tuscaloosa County, and it was therefore proper to bring this prosecution in that county. Cf., Cole v. State, 37 Ala.App. 232, 67 So.2d 64, cert. denied, 259 Ala. 517, 67 So.2d 68 (1953).

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex Parte Lewis BLACK. (Re: Lewis Black v. State of Alabama)
    80-282.
    Supreme Court of Alabama.
    May 22, 1981.
   JONES, Justice.

Writ Denied — No Opinion.

TORBERT, C. J., and MADDOX, SHORES, and BEATTY, JJ„ concur.


author: BOOKOUT, Judge.

text:
    Sam STARLING, alias v. STATE.
    4 Div. 809.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      James G. Clower of Clower & Watkins, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Second degree murder; sentence: fifty years’ imprisonment.

The evidence presented clearly established that on September 3,1979, the appellant shot T. J. Williams twice with a pistol which resulted in Williams’s death. There was evidence that the appellant and the deceased had some difficulty earlier that day. There were some words exchanged including a threat on the part of the deceased to kill the appellant with a knife. The appellant walked away from the confrontation.

Later that evening the deceased started back to the appellant’s house, but was stopped by a friend, Robert Copeland, and persuaded not to go there because appellant did not want the deceased at his house. However, a short time later the deceased went to appellant’s house, climbed over the banister on the front porch, and advanced toward the appellant. The appellant pulled a pistol and shot him twice. No one saw a weapon on the deceased and none was found at the scene.

The appellant’s defense was that of self-defense. However, testimony was presented from which the jury could rightfully conclude that the circumstances of the killing did not fall within the legal definition of self-defense. There was evidence that when the first shot hit the deceased he was knocked back over the banister and into the yard. Witness Gloria Jean Washington testified that when she heard the first shot and saw the deceased fall over the banister she ran from inside the appellant’s house into the yard to aid the deceased. The deceased was lying on his back, and she tried to pick him up when the appellant fired a second shot which hit her in the arm and then penetrated the deceased’s abdomen.

The State presented a prima facie case, and the jury did not believe the shooting was done in self-defense. Conflicting evidence always presents a jury question unless the evidence palpably fails to establish a prima facie case. Jones v. State, 54 Ala.App. 251, 307 So.2d 59 (1975); Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977).

Appellant contends that the trial court erred in not granting his motion for a new trial. The ground of that motion relied upon by appellant states:

“During the trial of this case, the defendant was surprised by the use of a signed statement of defendant’s witness, Robert Copeland, which statement was used by the State for impeachment purposes. Prior to the trial and during the month of October or November of 1979, the defendant’s attorney requested of the district attorney a copy of all statements of witnesses or persons interviewed by the State from whom statements were taken. No formal motion for production was made to the district attorney’s office since it is a common practice in this court that the district attorney will furnish, upon request of the defendant’s attorney, copies of any statements which resulted from his investigative process. The statement which the district attorney’s office obtained from the defendant’s witness, Robert Copeland, was not given to the defendant’s attorney. A prior knowledge of the contents of the statement used by the State for the impeachment of the witness, Robert Copeland, would have resulted in a different trial tactic on the part of the defendant’s attorney in this, to-wit: The defendant would not have called the witness, Robert Copeland, to testify, and the signed statement of such witness previously obtained by the district attorney’s office would not have been used. The use of this statement by the State created bias against the defendant, thereby resulting in a verdict contrary to law.”

The present issue arose when Robert Copeland, an eye-witness to the shooting, testified for the defense. He stated that the deceased was at the appellant’s home earlier on the date of the shooting. He had led the deceased away from the appellant’s home and warned him not to go back because the appellant did not want him there. The deceased, however, disregarded that warning and returned to the appellant’s house. He climbed over the banister onto the front porch at which time the appellant shot him twice.

Copeland testified that the first shot knocked the deceased over the banister into the yard and that when the second shot was fired, “I guess he was in the yard.” However, his testimony then became unclear as to whether the second shot was fired after the deceased was on the ground. He next said the two shots were in rapid succession. From the record:

“Q. Isn’t it a fact that after the first shot was fired T. J. was knocked over the railing back into the yard, that Sam walked up to the railing and leaned over and shot T. J. down there on the ground?
“A. I didn’t see it that way, no.
“Q. ' You didn’t see it that way. Well, how did Gloria have enough time to get out from inside to get over there around that railing to T. J. and get hit by the second shot.
“A. I didn’t see it that way.
“Q. You didn’t see it that way? On November 14th, 1979, did you give a statement to Grady Reeves and Bruce Devane concerning this shooting?
“A. I did.
“Q. Is this that statement? Is that your signature?
“A. Yes.
“Q. And you told what you saw?
“A. That’s right.
“Q. And that statement is true?
“A. If they got down there what I told them it is.
“Q. All right. Did. they read it back to you or did you read it?
“A. No, sir. I can’t read too good.
“Q. Did they read it to you?
“A. No.
“Q. You mean you gave them a statement and they didn’t read it back to you?
“A. No, sir.
“Q. Well, in that statement—
“MR. CLOWER: Well, let him examine it, Court please.
“MR. BARR: He said he couldn’t read, Your Honor, and I was going to read it. He just stated he couldn’t read.
“MR. CLOWER: Well, then, if he hasn’t read the statement,, it’s a statement that’s not admissible. He can testify as to what he saw and everything now, but no prior statement would be admissible.
“MR. BARR: If I establish a prior and inconsistent statement I can ask him if he said this or not, if it please the Court. “MR. CLOWER: Go ahead.
“Q. In the statement that you gave on November 14, 1979, to Detective Reeves, isn’t it true that you said, that Williams then said something to Starling that you could not understand and climbed over the banister towards Starling, Starling then fired a shot and hit Williams causing him to fall backwards over the bannister on the ground. Williams was laying (sic) on his back when Starling walked out onto the porch, leaned over the banister and shot Williams the second time, he was still laying (sic) on his back?
“A. I didn’t say it like that.
“Q. You didn’t say it like that?
“A. I sure didn’t.”

Counsel for appellant did not claim surprise. He only made a comment that if the appellant had not read the statement it was not admissible. That comment was not made in the form of an objection. The prosecutor replied, “If I establish a prior and inconsistent statement I can ask him if he said this or not, if it please the Court,” to which defense counsel replied, “Go ahead.”

Grady Reeves, one of the police officers who investigated the shooting, was later called by the State as a rebuttal witness. Reeves testified that on November 14,1979, he was present when Bruce Devane took a statement from Robert Lee Copeland. No coercion or duress was applied to Copeland to obtain the statement, and Copeland was not a suspect of any crime at the time. Reeves said Copeland gave the statement freely and voluntarily. Devane reduced the statement to writing in the presence of Reeves and Copeland. The statement was read back to Copeland who acknowledged that it was correct and signed it in the presence of Devane and Reeves.

The defense moved to exclude the statement without assigning any grounds, and the trial court overruled. Again, defense counsel failed to claim surprise. The statement, which was the same one which Copeland acknowledged on the witness stand as bearing his signature, was read into evidence. In pertinent part the statement was that the deceased:

“climbed over the bannister towards Starling. Starling then fired a shot and hit Williams causing him to fall backwards over the banister out onto the ground. Williams was lying on his back when Starling walked out onto the porch, leaned over the banister and shot Williams the second time. He was still laying (sic) on his back. Gloria Jean Washington was holding Williams during the second shot. Gloria Jean had gotten up and ran to Williams after the first shot was fired.”

Defense counsel then cross-examined Reeves at length concerning the statement and made no further motions or objections.

We find the prior contradictory statement of Reeves to have been properly admitted into evidence.

“A witness cannot be impeached by proof of contradictory statements made by him, whether oral or in writing, without first asking him whether he made such declarations.” Edwards v. State, 279 Ala. 371, 185 So.2d 393 (1966). A proper predicate for the introduction of a prior contradictory statement requires that the witness to be discredited must have called to his attention the time, place and person involved in the contradiction “in order that the faculties of the mind may be put in motion, and the memory aided by the train of ideas which such circumstances would be likely to suggest with reference to the subject-matter of inquiry.... The rule, however, is satisfied, when the attention of the witness is called with reasonable certainty to the subject of the previous declarations.” Nelson v. Iverson, 24 Ala. 9, 60 Am.Dec. 442 (1853). Also see Bridges v. State, 225 Ala. 81, 142 So. 56 (1932); Edwards, supra, and the latest expression of our supreme court on this subject, Ex parte Jackson, Ala., 389 So.2d 948 [1980].

In the instant ease the witness to be contradicted was made fully aware of his prior statement and acknowledged the occasion and his signature, but contended that the written statement was not what he told the officers. The predicate was therefore properly laid for either or both of the officers present when the statement was given to testify that the statement did in fact reflect exactly what the witness had told them.

As to the issue of surprise, we find that it was not timely raised. Objections to admission of evidence must be made at the time the evidence is offered and must state specific grounds. Hargrove v. State, Ala. Cr.App., 344 So.2d 823 (1977); Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977). A trial court will not be put in error on grounds not assigned. Johnson v. State, Ala.Cr.App., 364 So.2d 1187 (1978); Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). The appellant did not raise the issue of surprise during the course of the trial. He raised that issue for the first time in his motion for new trial.

Even assuming the issue could be raised for the first time on motion for new trial, we still find no error. The granting or refusing of a motion for new trial is a matter addressed to the sound discretion of the trial judge which is subject to revision only in cases of gross abuse of that discretion. Moore v. State, 52 Ala.App. 179, 290 So.2d 246 (1974). We find no abuse of discretion on the part of the trial judge in this instance.

During the hearing on the motion for new trial, it was brought out that counsel for appellant had gone to the district attorney’s office twice requesting statements from witnesses. Both times he was given free access to the files and obtained any statements contained therein at the time. Counsel for appellant admitted that he made no formal motion for discovery or production, but contends that his verbal requests had the same force and effect of a motion to produce. Counsel argued to the trial judge that such a motion “is a continuing thing for anything else that the District Attorney would obtain up until the time of trial. I assume that maybe his investigations are continuing. If I am wrong in that, then the burden was on me to come back every day or every week to see if he had anything new, which I did not do.”

Certainly the trial court did not abuse its discretion in refusing to grant the motion for new trial based upon the above contention by defense counsel. There is no allegation nor showing that the prosecutor withheld evidence favorable to the appellant per Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Likewise, there is no constitutional right to discovery and Brady v. Maryland, supra, did not create one. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

If defense counsel wanted statements of witnesses which were not in the prosecutor’s files or wanted future statements, he should have requested such from the prosecutor and even checked the prosecutor’s file immediately before going to trial. We know of no rule of law which allows counsel to be less diligent just because the “accepted procedure” is that a motion to produce is unnecessary where the prosecutor generally allows defense attorneys to inspect his files. Here, the witness who “surprised” defense counsel was his own witness. He had complete access to the witness and should have known through pretrial interviews that his witness had been questioned by the police. Certainly, the trial court did not abuse its discretion in denying the motion for new trial under those circumstances.

We have reviewed the other contentions of appellant and find them to be without merit. We find no error in the record.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex Parte Sam STARLING. (Re Sam Starling, alias v. State of Alabama).
    80-421.
    Supreme Court of Alabama.
    May 22, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO. OPINION.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: TYSON, Judge. DeCARLO, Judge,

text:
    William C. JAKES v. STATE.
    4 Div. 833.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Joseph W. Smith and W. Donald Morgan, Jr. of Smith, Smith & Morgan, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

William C. Jakes was indicted and convicted for the possession of cocaine in violation of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama 1975, and sentenced by the trial court to serve four years in the state penitentiary, which sentence was subsequently reduced to four years probation. The essence of Jakes’s contention on this appeal, also made to and rejected by the court below on his motion for a new trial, is that the evidence of the cocaine was located and seized as the direct result of the illegal arrest of Jakes, and thus should have been suppressed by the trial court.

The facts surrounding the disputed seizure of the cocaine are rather simple, and were developed during a suppression hearing outside the presence of the jury. The first and only witness for the State to testify as to the actual events was A. J. Pisano, a Phenix City police officer, who stated that he was on routine patrol with a partner, an Officer Jenkins, in the early morning hours of December 26, 1979, when, around 6:35, they received a radio dispatch to proceed to the scene of a disturbance at 210 Ninth Court in Phenix City. Upon their arrival at that address, the officers saw appellant’s wife, clothed in a “thin” nightgown or robe, standing outside of the house, but they did not at that time see the appellant. Officer Pisano testified that Mrs. Jakes, who was “very excited” and “yelling rather loudly” (R. 8), reported to them that appellant had beaten her with a clothes hanger and had then “run her out of the house,” and that she wanted the officers to remove appellant from the house so that she could go back inside. Upon being asked by the officers where appellant was, Mrs. Jakes replied that “ ‘He’s in the bedroom and he won’t let me in the bedroom’ ” (R. 9), and then led the officers into the house and pointed to the closed door of the room where appellant presumably was. Officer Pisano stated that at that point Mrs. Jakes began beating on the closed door and informing appellant that the police were present, but when appellant failed to emerge she asked the officers if they could break the door down. Officer Pisano stated that he told Mrs. Jakes that he could not break the door down, but did call out to appellant in a loud voice, “ ‘Police, come out’ ” (R. 9). At this, appellant unlocked the door and Mrs. Jakes entered the bedroom, at which time the officers heard her say in a loud tone, “almost screaming,” that, “ ‘He’s got a gun. Y’all get that thing away from him. He’s got a gun; y’all take it away from him” (R. 10). Officer Pisano testified that he then yelled to appellant to put his gun down and come out of the room with his hands in front of him “where we could see him” (R. 11), which appellant then did. Officer Pisano then entered the bedroom and recovered a pistol, which was lying in view at the foot of a cot. At this point, Officer Pisano stated, he and his partner arrested appellant for “disorderly conduct” and allowed him the opportunity to get dressed, as he was at the time clothed in a t-shirt, shorts and socks. As appellant indicated which items he would wear, Officer Pisano in turn searched them before handing them to appellant to put on; during this process, Officer Pisano recovered a glass vial containing what was later determined to be cocaine from a pocket of appellant’s jacket.

Under cross-examination by counsel for appellant, Officer Pisano stated that appellant’s arrest had not been effected under a warrant, and further testified as follows:

“Q. When you made the arrest had there been a breach of the peace that occurred in your presence?
“A. The breach of the peace did not occur in my presence.
“Q. Was any breach of the peace threatened in your presence?
“A. Mrs. Jakes, standing in the bedroom with her husband having a gun in his hand, was our grounds for disorderly conduct and breach of the peace, sir.
“Q. Did you see the gun in his hand?
“A. No, sir, I did not.
“Q. You did not see the gun in his hand, then, did you?
“A. No, sir, I did not.
“Q. As far as you know, then, there was no breach of the peace threatened in your presence, was it?
“A. Yes, sir — well, no, sir, there was not.”
(R. 16-17)

Officer Pisano further testified on re-direct examination that at the time he ordered appellant to come out of the bedroom he was concerned for Mrs. Jakes’s safety, given the facts that she seemed “extremely upset” and had earlier displayed marks to Officer Jenkins which she claimed had been the result of the beating by appellant. The officer also stated the following in response to questioning:

“Q. * * * Would you consider it disturbing the peace or disorderly conduct if someone was upset and distraught, as you say Mrs. Jakes was, and her husband did in fact have a gun that she was yelling to please take away from him?
“A. Yes, sir, to me that was disorderly conduct, disturbing the peace.”
(R. 19)

Neither Officer Jenkins nor appellant’s wife testified concerning the events in question, and several other of the State’s witnesses recounted matters which we do not deem relevant to the issue on this appeal, and thus will not discuss here. Appellant did not put forth any witnesses during the suppression hearing, nor did he testify himself. At the conclusion of the hearing and after arguments by counsel for the State and appellant, the trial court ruled that appellant’s arrest had been lawful and the cocaine properly seized as incident to that arrest.

i

As we have previously noted, the dispositive issue on this appeal is whether, on the above-stated facts, the admittedly warrantless arrest of appellant for “disorderly conduct” was a proper and legal one, for, if it was, then the cocaine located and seized as the direct result of that arrest was properly admissible at trial under the theory of search incident to a lawful arrest. Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 889, 20 L.Ed.2d 917 (1968); Foy v. State, Ala.Cr.App., 387 So.2d 321 (1980); Douglas v. State, Ala.Cr. App., 366 So.2d 373 (1979). On the other hand, of course, evidence seized as the direct result of an illegal arrest must be suppressed and cannot be produced against an accused unless the primary “taint” caused by the arrest’s illegality is somehow mitigated or removed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Foy v. State, supra; Malone v. State, 51 Ala.App. 19, 282 So.2d 367, cert. quashed, 291 Ala. 789, 282 So.2d 371 (1973). Against this background, appellant strenuously asserts that he did not commit any offense in the presence of the officers which would have justified his arrest, while the State apparently contends that he either did so commit an offense, or that the officers had “probable cause” to believe that he had done so and thus were justified in arresting him.

Arrests by law enforcement officers are governed by statute in Alabama and at § 15-10-3, Code of Alabama 1975, the following is stated as to the circumstances which will justify an arrest without a warrant:

“An officer may arrest any person without a warrant, on any day and at any time, for:
(1) Any public offense committed or a breach of the peace threatened in his presence;
(2) When a felony has been committed, though not in his presence, by the person arrested;
(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed it;
(4) When he has reasonable cause to believe the person arrested has committed a felony, although it may after-wards appear that a felony had not in fact been committed; or
(5) On a charge made, upon reasonable cause, that the person arrested has committed a felony.”

Pursuant to the mandate of this section, it has been often held by the courts of this State that for an officer to arrest a person without a warrant for the commission of a misdemeanor (which is, by definition, a “public offense” not punishable by imprisonment in the penitentiary, see § 1-1-7, Code of Alabama 1975), the violation of a city ordinance, or a threatened “breach of the peace,” the infraction must have been committed in the presence of the officer. International Brotherhood of Electrical Workers, Local 136 v. Davis Constructors and Engineers, Inc., Ala., 334 So.2d 892 (1976); Green v. State, 238 Ala. 143, 189 So. 763 (1939); Mitchell v. State, Ala.Cr.App., 397 So.2d 169 (Ms. 1980); Cade v. State, Ala.Cr.App., 375 So.2d 802 (1978), affirmed, Ala., 375 So.2d 828 (1979); Preyer v. State, Ala.Cr.App., 369 So.2d 901 (1979); Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975); Jackson v. State, 55 Ala.App. 334, 315 So.2d 131, cert. denied, 294 Ala. 760, 315 So.2d 136, cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 132 (1975); Weeks v. State, 49 Ala.App. 618, 274 So.2d 646 (1973); King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970). While it does not appear from our case law that any Alabama decision has specifically construed the term “in his presence,” as contained in the first paragraph of the above-cited section, we feel that a reasonable interpretation of that phrase within the purposes of § 15-10-3 would permit an arrest where the officer was apprised through the operation of any of his senses that a misdemeanor was being committed or attempted. Thus, for example, it would not be essential that an officer actually see the commission of an offense if another of his physical senses, perhaps that of smell or hearing, could afford him a fair inference that the offense was indeed being perpetrated at that point in time. In application to the facts of this particular case, it is, of course, clear that the officers would not have been justified in arresting appellant without a warrant on any misdemeanor charge related to the alleged beating of appellant’s wife before the officers’ arrival in that such an offense was not, by any definition of the term, committed in the officers’ “presence” within the ambit of the arrest statute. The closer question, however, is whether the incident involving the pistol, which concededly furnished the basis for appellant’s arrest, was an offense occurring in the officers’ presence so as to justify the arrest. Admittedly, Officer Pisano, the only person at the house that night to actually testify, stated that he never did see appellant in possession of the pistol, but only relied on Mrs. Jakes’ exclamations that appellant had a gun and the officers should take it away from him. Immediately after appellant had beén directed from the room, Officer Pisano located a pistol lying on a cot in the room, and it thus seems fairly clear that this information, when coupled with what the officers heard Mrs. Jakes say, afforded the direct supposition that appellant had indeed been in possession of the pistol, at least at some point while the officers were out in the hall. We therefore find little difficulty in the conclusion that the officers were indeed “present” for the purposes of the arrest statute if appellant’s conduct as known to the officers amounted to an offense.

The offense for which appellant was originally arrested was described by Officer Pi-sano to be “disorderly conduct” or “breach of the peace,” although the officer was unsure as to whether appellant had been charged under State law or some provision in the Phenix City Code (given, of course, the existence of such a body of laws). As we have not been cited by the State to any applicable section of the latter, we will assume for the purposes of this appeal that appellant was arrested under the terms of the State statute relating to “violent, profane, etc., language or conduct” and found at § 13-6-100, Code of Alabama 1975;

“Any person who disturbs the peace of others by violent, profane, indecent, offensive or boisterous conduct or language or by conduct calculated to provoke a breach of the peace shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500.00 or be sentenced to hard labor for the county for not more than 12 months, or both, in the discretion of the court.”

This section was construed in Mitchell v. State, 41 Ala.App. 254, 130 So.2d 198, cert. denied, 272 Ala. 707, 130 So.2d 205 (1961), to limit the circumstances constituting an offense under the section to the following:

“. .. ‘disturbing the peace of others’ . . . must be caused by
(1) either by
(а) conduct which is violent, profane, indecent, offensive or boisterous; or by (b) language which is violent, profane, indecent, offensive or boisterous, or by (2) conduct calculated to provoke a breach of the peace.
“Thus the act denounces disturbing the peace of others in any of three ways, i. e., two species of conduct and one of words.”

Our review of the trial record reveals that it is fairly obvious from the evidence submitted that, while the officers were standing outside the closed door to the room where appellant was, and thus presumably within hearing distance of anything appellant might have had to say, they did not hear appellant use any “violent, profane, indecent, offensive or boisterous” language or, apparently, any language at all. Indeed, the only language heard and testified to by Officer Pisano was that of Mrs. Jakes as she first stood in her front yard, then outside the closed door and finally in the room with appellant. Clearly, at the time the officers were present, appellant did not violate the terms of § 13-6-100 through any language proscribed by that section.

We are, however, confronted with appellant’s apparent possession of a pistol as conduct possibly constituting an offense within purview of the above-cited statute. It is, of course, by no means clear that, at the point that Mrs. Jakes yelled to the officers about appellant’s possession of the gun, appellant was in fact holding the pistol, although we think that this might fairly be inferred under circumstances, especially considering the fact that, immediately after appellant emerged from the bedroom, the pistol was located on a cot in that room. More importantly, there is no testimony that definitively establishes that appellant was employing the pistol in any sort of menacing or otherwise threatening manner, or that he was perhaps intending to use the pistol against his wife and the officers. From the wording of § 13-6-100 and its above-quoted interpretation in Mitchell v. State, supra, only conduct which is either “violent, profane, indecent, offensive or boisterous” or “calculated to provoke a breach of the peace” is prohibited by that section. As to the first portion of such conduct, we do not see how appellant s possession of the pistol (assuming such) was, under the circumstances, “violent, profane, indecent, offensive or boisterous” within commonly accepted definitions of those terms, in the absence of any evidence which tended to establish the existence of those types of conduct. We are also of the opinion that appellant’s actions did not amount to conduct “calculated to provoke a breach of the peace.” In Abernathy v. State, 42 Ala.App. 149, 155 So.2d 586 (1962), cert. denied, 275 Ala. 691, 155 So.2d 592 (1963), reversed on other grounds, 380 U.S. 447, 85 S.Ct. 1101, 14 L.Ed.2d 151 (1965), the term “breach of the peace” was defined to be a “ ‘violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace,’ ” although no specific intent to do so was required (but see § 13A-11-7, Code of Alabama 1975, supra), nor was it necessary that the peace have actually been broken. It appears that the only decisions to examine this particular provision of §' 13-6-100 have been chiefly concerned with the criminal liability of leaders of various types of public demonstrations, see Abernathy v. State, supra; Johnson v. State, 50 Ala.App. 726, 282 So.2d 345, cert. denied, 291 Ala. 784, 282 So.2d 348 (1973), cert. denied, 415 U.S. 925, 94 S.Ct. 1431, 39 L.Ed.2d 482 (1974), and we further note in passing that the constitutionality of such a standard might be in some doubt when considered in the light of Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966), see also, Committee Comment to § 13A-11-7, Code of Alabama 1975, but we find that we need not decide that here.

In applying this “breach of the peace” standard to the conduct of appellant as that conduct was established through the testimony of Officer Pisano, we are not convinced that appellant was violating § 13-6-100 on the night in question while the officer and his partner stood outside the bedroom door. As we have previously noted, there was no evidence which tended to show that appellant was employing or seeking to employ his firearm in a potentially violent manner at the point at which Mrs. Jakes called to the officers. We do not see that, in the absence of such evidence, merely having a pistol either in one’s possession or in close proximity within the confines of one’s own home is “conduct calculated to provoke a breach of the peace.” We should not be construed, however, as condemning the actions of Officer Pisano and his partner in taking the precautionary steps of warning appellant to divest himself of any firearms and step out of the room into the officers’ view. But having assured themselves that appellant was unarmed, the officers were not then justified on these circumstances in subjecting appellant to a full arrest on the facts known to the officers from their vantage point outside the bedroom, for there was no apparent offense committed in their presence. Of course, Mrs. Jakes would certainly have been free to secure a proper warrant for the arrest of appellant based upon her perception of the event and the previous indignities inflicted upon her by appellant, but we are not directed to any testimony that indicates that she did so.

We hold that the warrantless arrest of appellant was not justified by the circumstances indicated, and thus the subsequent procedure by which appellant’s clothes were searched by the officers was likewise unwarranted. The incriminating evidence should have been suppressed by the trial court.

This conviction is reversed and this cause remanded.

REVERSED AND REMANDED.

All the Judges concur, except, DeCARLO, J., who dissents with opinion.

DeCARLO, Judge,

dissenting.

The crucial issue in this case is whether or not appellant’s warrantless arrest was proper. I agree with the majority’s ruling that the term “in his presence,” as used in § 15-10-3, Code of Alabama, supra, permits an arrest whenever an officer, using any of his senses, determines that a breach of the peace has been committed or threatened. I disagree with the majority’s application of that rule to the facts of this case. Confronted with the facts of this case, a reasonable police officer using his senses of hearing and sight would conclude that a breach of the peace had been committed or threatened.

The pertinent facts showing that appellant’s conduct threatened a breach of the peace are as follows: (1) his wife was out in the cold in her nightgown in the early morning hours screaming that her husband had run her out of the house; (2) appellant had locked himself in the bedroom; (3) when the wife entered the bedroom she began shouting, “He’s got a gun. Y’all get that thing away from him. He’s got a gun; y’all take it away from him;” (4) the officer in the doorway to the bedroom was only a very short distance away from appellant and his wife at that time; (5) when the police entered the bedroom they found a gun at the foot of the cot within appellant’s reach.

Based upon the foregoing facts, it is my judgment that the police officer was alerted, through his senses of sight and hearing, to the fact that appellant had breached, or had threatened to breach the peace within his presence.

For the foregoing reasons I respectfully dissent.

      . As appellant correctly points out in his brief, § 13-6-100 was repealed by legislation implementing the new Criminal Code, Title 13A, Code of Alabama 1975, and effective January 1, 1980. § 13A-1-11, Code of Alabama 1975. “Disorderly conduct” is now proscribed by § 13A-11-7, which, by way of comparison, states:
      “(a) A person commits the crime of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
      (1) Engages in fighting or in violent tumultuous or threatening behavior; or
      (2) Makes unreasonable noise; or
      (3) In a public place uses abusive or obscene language or makes an obscene gesture; or
      (4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or
      (5) Obstructs vehicular or pedestrian traffic, or a transportation facility; or
      (б) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse.
      “(b) Disorderly conduct is a Class C misdemeanor.”
      As appellant’s arrest occurred on December 26, 1979, it must be governed by the former provision in § 13-6-100. See § 13A-1-7, Code of Alabama 1975.


text:
    Ex parte State of Alabama, Ex Rel. Attorney General (Re: William C. JAKES v. STATE of Alabama).
    80-379.
    Supreme Court of Alabama.
    April 24, 1981.

      Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for petitioner.
    No appearance for respondent.
   TORBERT, Chief Justice.

Our denial of this writ of certiorari should not be taken as implicit approval of the Court of Criminal Appeals’ resolution, 398 So.2d 342 of the issues presented.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


text:
    Bill Joe KIDD v. STATE.
    1 Div. 175.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    As Corrected on Denial of Rehearing March 17, 1981.

      Paul M. Harden and N. S. Hare, Jr., Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Jones, Jr., Asst. Atty. Gen., Montgomery, for appellee.
   BOOKOUT, Judge.

Unlawful possession of marijuana; sentence: five years’ imprisonment.

The grand jury charged in pertinent part: “[T]hat before the finding of this indictment, Bill Joe Kidd . .. after having been previously convicted of, to-wit: Unlawful Possession of Marijuana, did unlawfully possess marijuana... (Emphasis added.)

The appellant filed an amended motion to quash the indictment, which was denied, contending that the indictment improperly sets out a prior separate offense, i. e. a prior conviction for possession of marijuana.

We find that the trial court was not in error in denying the motion to quash. The proper mode of reaching defects in an indictment is by demurrer and not by motion to quash. Frye v. State, Ala.Cr.App., 369 So.2d 892 (1979); Napier v. State, Ala. Cr.App., 344 So.2d 1235, cert. denied, Ala., 344 So.2d 1239 (1977).

The appellant filed a demurrer in the trial court, but did not raise the instant issue. Only one ground of the demurrer even mentioned the prior offense. It only stated that the indictment was vague and confusing because it alleged a prior conviction of marijuana possession without showing “the time, place or circumstances” of the previous conviction. Such items need not be alleged in an indictment, and the demurrer was properly overruled on that particular ground. Frye, supra; Law v. State, Ala.Cr.App., 342 So.2d 412, cert. denied, Ala., 342 So.2d 413 (1977).

Had the issue been properly presented in the trial court below, our decision may have been different for it is apparent that the State has misread Napier, supra, in this regard. The appellant in that case was not charged with possession as in the instant case. For future reference for prosecutors, we point out that Napier (unlike the instant case) dealt with the application of two statutes, § 20-2-70 and § 20-2-76, Code of Ala.1975, which are as follows:

“(a) Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of a false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.00; provided, that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction for the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more than $1,000.00; provided further, that the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this subsection.” (Emphasis added.)
“(a) Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized or both.
“(b) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs.”

This court interpreted those two statutes and explained away their apparent conflict in Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975). On rehearing in Palmer, we held that § 20-2-70 is controlling as to the punishment for subsequent offenses “relating to the possession of marihuana” and that § 20-2-76 is controlling as to punishment for other types of narcotic drugs and “drug offenses relating to marihuana other than possession of same.”

In eases where a defendant is to be charged with a subsequent offense of possession of marijuana only, it follows from Palmer, supra, that § 20-2-76 cannot be used against him for enhancement of punishment. His punishment in such instances is governed by the first sentence in § 20-2-70, being from two to fifteen years’ imprisonment and/or a fine of $25,000.

It is reasonably clear from Napier, supra, and from Funches v. State, 56 Ala. App. 22, 318 So.2d 762, cert. denied, 294 Ala. 757, 318 So.2d 768 (1975), that when the State wishes to bring a defendant under the ambit of § 20-2-76 the prior conviction must be alleged in the indictment and later proven at trial. However, because the last clause of § 20-2-70 only provides that the penalties for the subsequent offenses relating to mere possession of marijuana “shall be the same as specified in the first sentence of this subsection” (relating to a first felony offense), it is unnecessary to allege a previous conviction. Likewise, in such cases, the proof of a prior marijuana possession is a matter to be considered on sentencing and will serve no purpose in disclosing such to a jury other than to prejudice a defendant by making him appear to be a person of bad character with the propensity of committing the type crime charged.

II

Appellant contends he was illegally searched and marijuana seized from him in violation of his Fourth Amendment rights. At trial counsel for the appellant and the district attorney entered into a stipulation that the testimony taken and transcribed at the preliminary hearing in the instant case would be the same if presented on the appellant’s motion to suppress the fruits of the search and seizure of the appellant. The trial judge considered the evidence as such and denied the appellant’s motion to suppress.

The evidence presented in support of the motion to suppress establishes a warrantless search of the appellant. Unless it came within one of the exceptions to the warrant requirement, the search was illegal. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

The appellant was arrested and searched by Steve Griffis, an investigator with the Monroe County sheriff’s department. Grif-fis testified that around 7:00 p. m. on June 1, 1979, he was approached at the county jail by an informant. He said the informant was reliable in that he had furnished Griffis with information recently which led to the arrest and conviction of other drug violators. The informant told Griffis that he and a friend were with the appellant within the past hour, and the informant personally saw his friend purchase marijuana from the appellant. He also observed the appellant sell his friend some “white powder rolled up in tinfoil.” The appellant then told the informant and his friend that he (appellant) expected to have a good night at the “Barn,” a dance hall described as “a local outlet.”

The above testimony meets the “basis” test and the “veracity” test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). First, the unidentified informant gave the officer some of the underlying circumstances from which the informant concluded the appellant was in possession of marijuana, and second, the officer had knowledge of facts from which he could conclude that the informer was credible and his information was reliable.

The officer therefore had probable cause to obtain a search warrant. However, he failed to do so, but instead set up surveillance of the Barn around 8:00 p. m. that night. The appellant did not arrive until 9:30 p. m. However, the fact that the officer had probable cause to obtain a search warrant, but failed to do so does not prevent him from setting up surveillance of a suspect and later making a warrantless search should exigent circumstances arise. Rickman v. State, Ala., 361 So.2d 28 (1978), reversing Ala.Cr.App., 361 So.2d 22. In that case our supreme court quoted from United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), the following:

“The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.”

Officer Griffis testified that after he and a partner, in separate places, set up their surveillance, they observed the appellant drive up to the Barn. Before appellant could get out of his car, a young man ran up and gave the appellant some money and received a small plastic bag from the appellant. They observed the appellant park his car, lock it, and go inside the Barn. About thirty or forty-five minutes later, Griffis observed the appellant “come out of the back door of the Barn” and stop and roll two handmade cigarettes and put them in his pocket. Griffis then called in his partner as the appellant began rolling another cigarette.

In Griffis’s testimony, stipulated to for purposes of the suppression hearing, he said that as the deputy’s ear came around the back of the Barn, “Bill Joe saw his car and throwed (sic) what he had in his hands down and ran into one of the stalls” in the rear of the Barn. (R.p. 102) Further in the stipulated facts, he said, “[a]nd when the car rolled by, Bill Joe saw it and ran into the stall.” (R.p. 141) Griffis then caught the appellant in one of the horse stalls, reached into the appellant’s pocket, and removed two marijuana cigarettes.

We believe the appellant’s flight when he saw the deputy sheriff’s car provided the exigent circumstances necessary to justify a warrantless seizure and resulting search of the appellant. Based upon the information the officers had from the informant’s tip, plus their own observations of the appellant’s conduct at the Barn, any reasonable person would be led to believe the appellant was in possession of marijuana. It was dark and he fled. It was likely that he would have destroyed or hidden the contraband if Griffis had not acted promptly in seizing the appellant and confiscating the contraband. Therefore, pursuant to the probable cause plus exigent circumstances exception to the warrant requirement set out in Daniels, supra, we find no error in the trial court’s refusal to grant the appellant’s motion to suppress.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex Parte Bill Joe KIDD. (Re: Bill Joe Kidd v. State of Alabama).
    80-440.
    Supreme Court of Alabama.
    May 22, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: CLARK, Retired Circuit Judge.

text:
    Charles Farrell SCOGGINS, Jr., v. STATE.
    6 Div. 222.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied March 31, 1981.
    Robert R. Bryan and Roger C. Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   CLARK, Retired Circuit Judge.

Appellant was convicted of murder in the first degree of Douglas Allen Easley. He was represented on the trial by employed attorneys, Messrs. Marcus A. Jones and Stephen R. Arnold, attorneys at law in Birmingham. The verdict was returned and the judgment rendered on October 4, 1979. On October 10, 1979, his attorney, Mr. Arnold, filed and presented a motion for a new trial. Thereafter, appellant made a change in his attorneys by employing the attorney who now represents him as appointed attorney by reason of indigency of appellant, who filed on November 1, 1979, an amendment to the previously filed motion for a new trial. On January 11, 1980, his new attorney filed a second amendment to the motion for a new trial, on which day a lengthy hearing was conducted, at which several witnesses, including the defendant and his previous attorneys, testified on call of the defendant. A major contention of defendant in the second amendment to the motion for a new trial, and in the argument of his counsel in support of the motion, was that his previous counsel were disqualified to act as his counsel at the time of their representation of him, by reason of alleged conflict of interest by reason of previous representation by said attorneys of defendant’s son, who was one of the eyewitnesses for the State on the trial of the instant case. In presenting this argument to the trial court, defendant’s counsel relied upon Zuck v. Alabama, 588 F.2d 436 (5 Cir. 1979). At the conclusion of the argument, the trial court read and rendered an order overruling the motion for new trial, which order as written and signed by the trial judge is as follows:

“In support of Mr. Bryan’s motion for new trial he argues that there was a conflict of interest in this case and cites Zuck v. State of Alabama, 588 F.2d 436. The 5th Circuit Court of Appeals found that everyone except the defendant himself knew of his attorney’s representation of the prosecutor in a pending civil suit. “In this case, the defendant knew his attorney had represented his son. He, the defendant, had hired the firm of Jones, Roden & Arnold to represent his son.
“In the Zuck case, said representation by defendant’s attorney of the State’s attorney in a civil case was current.
“Here, said representation by defendant’s attorneys of defendant’s son’s misdemeanor conviction was completed and the time for an appeal had lapsed.
“In the Zuck case, the Appeals Court found defendant’s attorney had an encumbrance which might have dampened his ardor in representing the defendant in order to placate his other client.
“Here, defendant’s attorneys had no such encumbrance. Their representation of defendant’s son was completed. “Although the trial tactics which Mr. Bryan might have used, had he represented the defendant, may well have been different from those used by Messrs. Jones and Arnold, such divergence is to be expected among attorneys for each has his own tactics, techniques, style, personality, methods of defense, etc.
“But Mr. Scoggins, the defendant herein, was given an able and forceful representation by both Mr. Jones and Mr. Arnold. Marcus Jones and Steve Arnold are two experienced and highly effective practitioners at this Bar and their integrity is above reproach.
“Having presided at the trial, having seen the vigorous defense the defendant received by Mr. Jones and Mr. Arnold, and having heard Mr. Bryan’s motion, I find there was no division of interest, no erosion of zeal, and therefore, no conflict of interest in the representation which Mr. Jones and Mr. Arnold gave to Mr. Scog-gins because they had represented his son. The motion is denied.”

In appellant’s brief, he captions his argument for a reversal as follows:

“The failure of defense counsel to adequately explore all avenues of defenses denies a defendant of affective [sic] assistance of counsel.”

Appellant says nothing in his brief that is related to his main argument and main contention on the hearing on the motion for a new trial as amended. He quotes copiously from the testimony on the trial in support of his contention that the evidence was weak as to the defendant’s “defense of self-defense” and says:

“The Appellant, however, did have a viable defense to first degree murder, that being the defense of not guilty by reason of insanity or in the alternative intoxication to the point of lessening his criminal responsibility. However, defense counsel made absolutely no attempt to ever adequately develop this defense.”

During the testimony on the hearing of the motion for a new trial, Mr. Arnold, one of defendant’s attorneys on the trial, was questioned intensively by defendant’s counsel on the motion for new trial as to what the witness knew about any or all emotional or mental problems of defendant. It appears that Mr. Arnold' had represented him previously in a divorce proceeding. His testimony, on direct examination by defendant’s then counsel, was in part as follows:

“Q. Mr. Arnold, during the course of your participation in this case did you learn that the Defendant had a problem with drinking alcohol?
“A. I have known that ever since I have known Charlie.
“Q. All right. So, it would be through the domestic situation, etc., back even in ’78 that you were aware of that?
“A. Yes.
“Q. How serious or how excessive was it, to your knowledge?
“A. That’s a relative thing. To me it was very excessive.
“Q. Was there during the course of your participation in the case an investigation, did you at any time, you or anyone else participating in the defense of the case at any time have any examinations performed upon Mr. Scoggins to determine whether or not he had any emotional and/or mental problems.
“A. I sought no professionals — let me say this: In preparing for the homicide case we sought no professional outside assistance.
“Back in the domestic case I recommended that Charlie see a counsellor or psychologist or someone who could help him with some problems with alcohol with the divorce, the post-divorce. As you know, that can be a very damaging thing. And Charlie wouldn’t do it.
“Q. What problems did he have, just generally, that you observed and in your opinion did he have at that time which resulted in your making that recommendation?
“A. Charlie was very depressed. He didn’t want a divorce.
“Q. And was his drinking also, excessive drinking, another reason for you making that recommendation?
“A. To some extent, yes.
“Q. Did you ever conduct any investigation prior to the trial of this case to ascertain whether or not in fact Mr. Scoggins had been — had become an alcoholic?
“A. Not in those direct terms, no.
“Q. Did you or anyone to your knowledge participating in the defense of this case at any time prior to trial conduct an investigation to ascertain what effect the occasions when Mr. Scoggins was drunk, intoxicated, what effect that had upon his ability to distinguish right from wrong?
“A. I’m not sure I understand.
“Q. Did you or anyone else that you were associated with at any time conduct an investigation to see whether or not the Defendant’s alcohol problem effected [sic] his ability to distinguish right from wrong, in other words, whether or not it would possibly bring into consideration by the Defense an insanity plea, referring, obviously, only to the occasions when he was drunk, not the occasions when he obviously was sober?
“A. Well, you are going into strategy matters, too, Mr. Bryan.
“Q. Yes, sir.
“A. A plea of self-defense and a plea of insanity, as a matter of fact, any plea of not guilty and a plea of insanity are by their very nature contradictory.
“Q. In your opinion.
“A. Well, if a Defendant comes forth and says not guilty by reason of insanity, generally the gist of that is I am not legally responsible for my crimes because I • didn’t know right from wrong. And generally you have to admit committing the crime to succeed in an insanity plea. “It’s very difficult to convince a jury that I’m insane and I didn’t do it.
“Q. Uh huh.
“A. You are well aware of that paradox.
“Q. And what was the plea in this case?
“A. The plea was not guilty.
“Q. But in the trial the Defense admitted Mr. Scoggins did fire the fatal shot but that he did it under extenuating circumstances, to-wit, self-defense; is that correct?
“A. Correct.”

On the hearing of the motion for a new trial as amended, defendant presented evidence by lay witnesses to the effect that he had had some emotional and mental problems arising out of his previous domestic situation, and out of his drinking habits, that could conceivably have been sufficient to present a jury issue as to his insanity at the time he shot and killed Allen Easley. There was no testimony of an expert to that effect. Furthermore, the undisputed evidence shows that he was at the time of the alleged crime a regularly employed, capable locomotive engineer, a position requiring a high order of intelligence and stability of mind and body. A review of the entire evidence oh the trial and on the motion for a new trial leaves the reviewer unconvinced that his attorneys on the trial should have advised or encouraged him to plead not guilty by reason of insanity, or attempted to diminish his attitude and apparently firm and sincere conviction that he was acting in self-defense by leaning upon the role of Vodka and beer in the tragedy that occurred. We do not question the sincerity of plaintiff’s counsel in the position taken at this time, but we are not convinced that if appellant were granted a new trial, his attorneys then, whether his present one or not, would advise a plea of not guilty by reason of insanity, or endeavor to steer the case toward a conviction of manslaughter, rather than murder, by the route of intoxication.

In some material respects, the evidence was in conflict on the trial as between the testimony of defendant on the one hand and the testimony of defendant’s son and his three young friends on the other, but in other material respects the evidence was without conflict. It was undisputed that all of them had been drinking at defendant’s home, that defendant had been drinking Vodka and beer, that the boys had been drinking beer; that defendant went to the upper story or half story of the dwelling and while standing near the top of the stairs he fired a pistol down the stairway where his son and one or more of the other boys were at the time; that thereafter Eas-ley, a robust young man, went up the stairway and at about the top thereof was shot by defendant with the same pistol and fell back down the stairway. The defendant made a statement to a police officer soon thereafter, which was in part as follows:

“After the grass was cut Charles, the third, Rogers, Easley, and myself sat around the kitchen table and drank beer. While we were drinking the beer Charles, the third, began cursing me. After a while I left the kitchen and went upstairs to my bedroom and Charles continued to curse me. So, I -walked to the top of the stairs and fired my pistol down the stairs toward the living room. I had put my pistol into my pocket while they were cutting the’ grass. After firing the shot down the stairs toward the living room I went back into my bedroom and called the police. After calling the police I left the bedroom and entered the hall. At this time the gun was in my pocket. Eas-ley began coming up the steps. I pulled the gun and pointed it at Easley and told him to go back downstairs and leave me alone. Easley continued to advance on me with his fist doubled up. I backed up a couple of steps, closed my eyes and fired the gun at Easley. After I fired the gun Easley hit me in the forehead and grabbed me around the neck with both hands. I pushed on Easley and he let go of me. At this time I opened my eyes and Easley began backing down the steps. And I saw blood on my left hand. And Easley began to fall backwards.”

In their testimony, defendant s son and his young friends denied cursing the defendant.

There was evidence on the motion for a new trial that defendant was a person of a good general reputation and a good reputation for truth and veracity. The record does not enable us to say whether it would have been beneficial on the trial for such evidence to have been presented, for the reason that the record does not enable us to say whether such evidence would have been offset by countervailing evidence. Furthermore, this particular point is not presented by appellant.

The record falls far short of sustaining appellant’s contention that the trial court was in error in overruling defendant’s motion for a new trial as last amended.

We have searched the record for any error prejudicial to the defendant in connection with the trial of the case and have found none. 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.


author: SHORES, Justice.

text:
    Ex Parte Charles Farrell SCOGGINS, Jr. (Re: Charles Farrell Scoggins, Jr. v. State of Alabama)
    80-466.
    Supreme Court of Alabama.
    May 22, 1981.
   SHORES, Justice.

Writ Denied — No Opinion.

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


author: DeCARLO, Judge.

text:
    Charles MOSELEY, alias v. STATE.
    6 Div. 690.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied Feb. 24, 1981.

      Joel L. Sogol of Sogol & Chandler, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Appellant, an indigent, was convicted of a violation of § 13-6-152, Code of Alabama 1975, and sentenced to five years imprisonment. The grand jury of Tuscaloosa County charged in the indictment that appellant “did own a pistol or did have a pistol in his possession or under his control after February 9, 1972, theretofore having been convicted in the State of Alabama of committing a crime of violence, to-wit: Burgla-

At trial, the prosecution introduced a statement made by appellant to Special Agent George Barrows, in which appellant admitted not only that he owned the pistol in question, but also that he had been previously convicted of burglary in 1963. The State also introduced a certified copy of a trial docket sheet from Jefferson County, Alabama, showing that on February 9,1972, appellant had entered a plea of guilty to burglary. The docket sheet indicated that on February 8, 1972, an attorney was appointed to represent appellant. The “bench notes,” however, did not show whether appellant was attended by counsel on the following day when he pleaded guilty.

I

At trial, appellant objected to the introduction of his statement to Special Agent Barrows on the ground that it was not voluntarily given. At an in camera hearing to determine the admissibility of appellant’s confession, the Miranda and voluntariness predicates were properly laid, and the trial court ruled that appellant’s statement would be received in evidence.

The admissibility of appellant’s confession was a matter addressed to the sound discretion of the trial judge, and we do not believe that his decision was palpably contrary to the weight of the evidence. White v. State, Ala.Cr.App., 368 So.2d 332. Having determined that appellant’s statement was voluntary, the trial court properly submitted its credibility to the jury. McBryar v. State, Ala.Cr.App., 368 So.2d 568.

II

Appellant argues that his conviction for possession of a pistol should be overturned because the State did not properly prove a previous conviction of a crime of violence. He maintains that the State may not use his admission of a 1963 burglary conviction to prove its case, but instead must prove a conviction on the date alleged in the indictment, i. e., February 9, 1972. We do not agree.

The introduction of appellant’s confession was proper. Therefore, the admission of a 1963 burglary conviction, contained in that confession, supplied an element of the offense and removed the State’s burden of proving a prior conviction of a crime of violence. See Donahay v. State, 287 Ala. 716, 255 So.2d 599; Hodges v. State, 45 Ala.App. 29, 221 So.2d 922.

As the Alabama Supreme Court observed in Donahay, supra:

“[b]y his act of admitting the prior conviction, we think the defendant relieved the State from the burden of proving any of the matters that ordinarily would attend establishing the prior conviction.”

Appellant cites McCarty v. State, 55 Ala. App. 342, 315 So.2d 139, for the proposition that, whenever the State chooses to allege the date of a particular conviction in the indictment, the State must then prove that particular conviction, notwithstanding the fact that the defendant admits a prior conviction. Appellant’s reliance upon McCarty, supra, is misplaced. The indictment in McCarty charged that the defendant had been convicted of grand larceny on or about September 22, 1971. The defendant in McCarty admitted only that he had been previously convicted of “a felony,” not that he had been convicted of grand larceny. Since not all felonies are crimes of violence, see § 13-6-150, Code of Alabama 1975, the State had to prove the grand larceny allegation in the McCarty indictment in order to establish its case.

In the case before us, appellant admitted to a burglary conviction, and burglary is a crime of violence under § 13-6-150, Code of Alabama, supra. Thus, in the instant case, appellant’s admission furnished an element of the offense (conviction of a crime of violence) which was lacking in McCarty, supra.

Furthermore, unlike the indictment in McCarty, the indictment under which appellant was charged did not allege that appellant had been convicted on a particular date. It charged only that appellant possessed a pistol “after February 9, 1972, theretofore having been convicted of ... . Burglary.” [Emphasis added.] Appellant’s acknowledgement of a 1963 burglary conviction is therefore consistent with the wording of the indictment.

We have searched the record and find no error prejudicial to the appellant; therefore, the judgment of conviction by the Tuscaloosa Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Charles MOSELEY. (In re: Charles Moseley, Alias v. State of Alabama).
    80-361.
    Supreme Court of Alabama.
    May 1, 1981.
    Joel L. Sogol of Sogol & Chandler, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   ALMON, Justice.

Petition of Charles Moseley for writ of certiorari to the Court of Criminal Appeals to review and revise judgment and decision of that court in Moseley v. State, 398 So.2d 357 (1981), is denied.

In denying the petition for writ of certio-rari in this case, this Court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Criminal Appeals. In re Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

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