author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Sanford Lewis JONES v. STATE.
    5 Div. 477.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied Aug. 19, 1980.
    Larkin Radney, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., Jane Le-Croy Brannon, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of uxoricide. The indictment charged murder in the first degree. The result of the trial was a jury verdict and judgment finding defendant guilty of murder in the second degree and fixing his punishment at life imprisonment.

The undisputed evidence shows that defendant shot and killed his wife with a pistol almost immediately after they had a confrontation with one another on the side of a public road to which they had arrived in separate automobiles. There was little, if any, substantial evidence of self-defense. The controverted issue was as to defendant’s plea of not guilty by reason of insanity-

There is no contention that the evidence is not sufficient to support the verdict, and we find no reasonable basis for such a contention.

A major issue raised by appellant is as to a portion of the court’s oral charge on the defense of insanity. It is as follows:

“Now, the other defense is the one that they seemed to rely on the most, the defense of insanity. I want to tell you the best I know what the law says about insanity. Every person over fourteen years of age is presumed to be sane, therefore, a person over fourteen who pleads insanity has the burden of proving to you, to your reasonable satisfaction that he is insane. What is insanity? The legal test is as follows: where there is no capacity to distinguish right from wrong, a Defendant is nevertheless not legally responsible, if by reason of a mental disease, he has so far lost the power to choose between right and wrong and could not avoid the act so that his free will was destroyed and the alleged crime was the offspring of mental disease, so the first test is whether or not he can distinguish right from wrong. You heard the evidence. The second test is whether he could distinguish between right and wrong, he couldn’t resist doing the wrong because of mental disease. It is up to you to decide.”

At the conclusion of the court’s oral charge, it said:

“What says the State?”

Immediately thereafter the following occurred:

“MR. YOUNG: Satisfied with the Court’s oral charge.
“THE COURT: What says the Defendant?
“MR. RADNEY: I would like to approach the bench.
“THE COURT: Ladies and Gentlemen of the jury, go out and deliberate and consider all of the evidence in this case, if you are reasonably satisfied of the guilt of the Defendant, of any of these charges, then you sign one of these forms, and I have prepared the verdict for you, and you take them along with you, and the way that these verdicts have been prepared conform with the ones that I have read to you. Take these verdicts and the exhibits along with you to the jury room, and reach your verdict, and the court will await your verdict.
“(Whereupon, the jury was removed from the courtroom, and the following occurred outside the presence of the jury:) “MR. RADNEY: Let the record show that the Court gave me an exception to my objection to the Court’s oral charge before the jury. I took exception to the Judge’s jury charge, that is, his legal definition of the test of insanity in Alabama. That it is not stated correctly, and it was confusing and erroneous. Furthermore, I object to the Court’s refusing to give the written charges presented by the Defendant.”

The record affirmatively shows that defendant stated his exception to the court’s oral charge after the jury had retired to commence its deliberations. This was too late. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967); Maund v. State, Ala.Cr.App., 361 So.2d 1144 (1978); Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied, Ala., 358 So.2d 791 (1978); Luker v. State, Ala.Cr.App., 358 So.2d 504 (1978); Hurst v. State, Ala.Cr.App., 356 So.2d 1224 (1978).

There is some indication perhaps that there was some off the record discussion among the court and counsel that may have caused defendant’s counsel to think that it was not necessary to state his exception before the jury retired, but such a conclusion would be pure speculation by us, in which we have no authority to indulge.

Moreover, the exception stated by defendant does not meet the requirement that to be a valid objection or exception to part of the court’s oral charge there must be a recital of what the court said, or the substance thereof. Walker v. State, 269 Ala. 555, 114 So.2d 402 (1959); Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973). Some qualification in the strict application of that principle may be superficially noted as to an exception that was held sufficient in Smith v. State, Ala.Cr.App., 370 So.2d 312, cert. denied, Ala., 370 So.2d 319 (1979). Therein the exceptor said, “We except to the part of the jury charge regarding failure of the defendant to testify.” However, Smith is clearly distinguishable in that the exception pertained to a subject that would have been prejudicial to defendant by the mere injection of it into the court’s oral charge, unless “the protective feature to defendant” of the subject was stated. In the instant case, the subject involved was introduced by defendant himself and constituted the main theme of the trial after the establishment of the corpus delicti. The propriety of the inclusion of the subject in the court’s oral charge is unchallenged and unchallengeable.

For each of the reasons stated there should be no reversal on the ground, the only ground, asserted by appellant. In addition, we note that the part of the court’s oral charge under consideration, though imprecise and unclear, may not have been as harmful to defendant as appellant apparently thinks. His particular criticism is based on the premise that insanity consists in either the inability by reason of mental disease to distinguish between right and wrong or the inability by reason of mental disease to resist the impulse to do wrong (commit the crime). As to this, appellant is, of course, correct. We are not certain, however, that the jury was led to believe by the charge that a combination of the two phases of insanity is necessary to support the defense. Unfortunately the court did not clearly charge to the contrary. The mistake was one often made in methods used to state two propositions, that is, in failing to show whether they are conjunctive on the one hand or disjunctive on the other. In many instances, however, the ambiguity is dissipated in the mind of the hearer, and he is able to arrive at a correct understanding of what is meant, by consideration of the context or observance of the manner and vocal emphases of the speaker at the time.

The instruction could have been clearer as orally stated to the jury than it appears in type in the record. Much depends on whether the particular part of the charge is correctly punctuated. The trial judge is not responsible for the punctuation. As correct punctuation of a transcribed oral statement is dependent at times upon what the speaker means, erroneous punctuation is not necessarily the fault of the court reporter. To such consideration we subject the approximately last half of the previously quoted part of the court’s oral charge:

“[Wjhere there is no capacity to distinguish right from wrong, a defendant is nevertheless not legally responsible, if by reason of a mental disease, he has so far lost the power to choose between right and wrong and could not avoid the act so that his free will was destroyed and the alleged crime was the offspring of mental disease, so the first test is whether or not he can distinguish right from wrong. You heard the evidence. The second test is whether he could distinguish between right and wrong, he couldn’t resist doing the wrong because of mental disease. It is up to you to decide.”

A difference is readily seen in the first sentence if it is so punctuated as to make two sentences:

“[W]here there is no capacity to distinguish right from wrong, a defendant is nevertheless not legally responsible, if by reason of a mental disease, he has so far lost the power to choose between right and wrong and could not avoid the act so that his free will was destroyed and the alleged crime was the offspring of mental disease. So the first test is whether or not he can distinguish right from wrong.”

As to the next to the last sentence, difference is apparent by placing a comma between “is” and “whether,” so as to make the sentence read:

“The second test is, whether he could distinguish between right and wrong, he couldn’t resist doing the wrong because of mental disease.”

Even with the addition of a comma, the sentence is not perfect, but it tends to diminish any asserted fusion of the two separate and distinct branches of insanity. This is especially true when the word “whether” is credited with one of its recognized significations, “no matter if” (Webster’s Second International Dictionary).

The only expert witness on the question of insanity testified on behalf of defendant to the effect that he did have the capacity to distinguish between right and wrong but that, in his opinion, he did not have the capacity by reason of mental disease to resist the impulse to kill his wife under all of the circumstances existing at the time. In all probability, the jury understood correctly that the case was traveling on a single-wheel issue of capacity to resist the impulse to kill and not on the usual double-wheel issue as to insanity.

We find no error in the record prejudicial to appellant. 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.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

Appellant complaint that “The Court failed to address two issues presented for review in appellant’s brief.” We do so now.

One of the issues, as stated by appellant was that the trial court’s “continuous remarks concerning the defense of insanity, the evidence touching the issue and the weight of the evidence” were highly prejudicial to the defendant. Appellant expressly refers to several instances in the transcript as a basis for his contention. His concluding paragraph on the issue is as follows:

“Counsel for the defendant did not object to the numerous comments by the trial court, but to do so would have merely underscored the comment and tend to pit the defendant against the Court. The atmosphere created by the Court’s comments was one of disparagement and for counsel to object would surely highlight the Court’s adverse opinion. As stated well in Anderson v. State, 209 Ala. 36, 95 So. 171, ‘an exception to this general rule requiring appropriate objection or motion invoking corrective instruction or action by the Trial Court, is where the remark or argument of counsel (or Court) is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the Trial Court would have destroyed its sinister influence.’ The cumulative effect of remarks, conduct and attitude of the trial judge during the progress of trial, deprived defendant of a fair and impartial trial, and requires reversal of conviction. Williams v. State, 39 So.2d 29, 34 Ala.App. 253, cert. denied, 39 So.2d 37, 251 Ala. 397, cert. denied, 39 So.2d 39, 251 Ala. [696] 697.”

We think earnest counsel for appellant has been misled by considering the quoted statement of Justice Thomas in Anderson without giving consideration to the context and the authorities cited therefor at 209 Ala. 44, 95 So. 171.

It is to be noted that in Anderson, there was an affirmance, which marks the quoted statement as language unnecessary to the decision therein. The first and third cases cited in support of the quoted statement are B.R.L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80 and B.R.L. & P. Co. v. Drennen, 175 Ala. 338, 57 So. 876. We consider them in their chronological order.

In B.R.L. & P. Co. v. Drennen, the improper argument of counsel was made a ground of a motion for a new trial, which was overruled. The Supreme Court ruled that this was sufficient to present a question for review. However, it also said:

“. . This Court, on appeal, can only review the actions and rulings of the trial courts, and not those of counsel. . .” 175 Ala. at 350, 57 So. at 880.

In B.R.L. & P. v. Gonzalez, there were objections to argument of opposing counsel. The objections were overruled. Furthermore, the same matter constituted grounds for motion for a new trial, which also was overruled. Upon original submission, the judgment of the trial court was reversed and the cause remanded; on rehearing there was an affirmance, Justice Ormond Somerville speaking for a majority (four) and Justice Mayfield for the minority (three). There was a thorough ventilation of their views, but nothing therein is to be found to the effect that an appellate court should reverse the trial court for action within its jurisdiction unless such action has in some way been questioned in the trial court. The same is true as to the other authorities cited in support of the quoted excerpt from Anderson v. State, supra.

In Williams v. State, cited by appellant in the quoted portion of his brief, it was stated, after remandment, in reference to the remarks, conduct and attitude of the trial judge during the trial:

“In each of the instances we have copies from the record, counsel for appellant excepted to the remarks of the court. Motion for a mistrial was also made in a few cases. The questions are also before us by a motion for a new trial.” 39 So.2d at 35.

Except in cases of automatic appeals, provided by statutory law as now codified in Ala.Code 1975, § 12-22-241, it is not within the province of a court, on appeal, to reverse a trial court for what occurs during a trial unless the aggrieved party in some way presents to the trial court the grievance upon which he bases a claim for reversal by the appellate court. Many cases have so held. We cite a few of the more recent ones. Barnett v. State, 51 Ala.App. 470, 286 So.2d 876, cert. denied, 291 Ala. 773, 286 So.2d 890 (1973); Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973); Lambert v. State, 55 Ala.App. 669, 318 So.2d 364 (1975); Brantley v. State, Ala.Cr.App., 335 So.2d 189, cert. denied, Ala., 335 So.2d 194 (1976); Holliday v. State, Ala.Cr.App., 346 So.2d 26 (1977).

The other of the “two issues presented for review in appellant’s brief” that were not addressed on original submission is stated in appellant’s brief as follows:

“The Trial Court erroneously limited the introduction of evidence as to the issue of mental capacity.”

In support of his contention, appellant refers to three instances when the court sustained objections of the State to questions asked by defendant’s counsel. One instance was during the defendant’s cross-examination of Officer Dewey Jones as follows:

“Q. Do you know Thomas Lee McKinney?
“A. Yes, sir.
“Q. Does he have a criminal record?
“MR. MORRIS: We object to whether Thomas Lee McKinney has a criminal record. He is not a party to this lawsuit.
“THE COURT: Overruled. We have an intelligent witness here_
“MR. MORRIS: We reserve an exception. He’s not on trial here.
“Q. Does he have a criminal record?
“A. Yes, sir.
“Q. And does he have a record for crimes like grand larceny and also_
“MR. MORRIS: ...Your Honor, we object to that again. How far is the Court going to let him go into this?
“THE COURT: Sustained.
“MR. RADNEY: This is cross-examination.
“MR. MORRIS: There is higher and better evidence anyway.
“THE COURT: I sustained the objection.
“MR. RADNEY: This is cross-examination, and he’s answered yes, and I have the right to elicit_
“THE COURT: Well, you have received your answer, and I don’t think there is any farther reason for going into it any more. I sustained his objection as to the last question.
“MR. RADNEY: Reserve an exception.”

Thomas Lee McKinney was the ex-husband of the deceased, Charlene McKinney Jones. There is evidence to the effect that there had been clashes bordering on personal violence between defendant and Thomas Lee McKinney. There is no evidence that McKinney was a party to the final confrontation between defendant and his wife. It is difficult to understand the theory úpon which defendant bases his claim that the court was in error in sustaining the State’s objection to the question, “And does he have a record for crimes like grand larceny and also_.” We need not determine whether such record would have been admissible in evidence. Even so, proof of it must be made in accordance with the best evidence rule, which would not include the testimony of a witness who is not shown to have personal knowledge of the record or the contents thereof. Bear v. Swift & Co., 259 Ala. 668, 68 So.2d 718 (1953). The principle applies to criminal cases also. Pierce v. State, 42 Ala.App. 53, 151 So.2d 793 (1963); Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973).

While defendant was testifying as to an incident between him and his wife a few days before she was killed, the following occurred:

“A. Well, I got out there about ten minutes to four, and she wasn’t there, and when she arrived_coming by the mill, I waited there, and when I walked by, she had a butcher knife and it had stuck a hole in her purse, and I twisted her arm and led her to the car and went out to my sister’s.
“Q. Did you take the butcher knife away from her?
“A. That’s right.
“Q. Now, did she generally carry a butcher knife?
“MR. YOUNG: Now, we object to that.
“THE COURT: Sustained.
“MR. RADNEY: He’d know whether or not she usually carried a butcher knife, she was married to him.
“MR. MORRIS: The question is whether she had on this day, Judge. We don’t want to talk about February the 3rd, we want to talk about this occasion.
“THE COURT: I sustained the objection, go ahead.
“Q. Go ahead.
“A. And she asked me, she said let’s go pick up the children. Now, the children was up at Thomas Lee McKinney’s mother’s house, and I got up there, and there was about twelve cars in the yard, and all the lights were off, and she__ to me it seemed like_
“MR. MORRIS: And we object to what it seemed like to him, Judge.
“MR. RADNEY: I’m going to tie all of this in, Judge, I can only do it one thing at a time, if I don’t do it with this witness, I’ll do it with the next nine witnesses.
“THE COURT: Go ahead.
“Q. Go ahead.
“A. It seemed like to me_
“MR. MORRIS: And we object to what it seemed like to him.
“Q. When you went by the house, was the house all black dark?
“A. Yes, it was.”

As defendant relied partly upon the defense of self-defense, it would seem at first view that the sustention of the State’s objection to the question, “Now, did she generally carry a butcher knife,” was in error as in conflict with the principle that where self-defense is an issue in a homicide case, “the accused is entitled to prove that the deceased was in the habit of carrying firearms or other deadly weapons or that he had the reputation of habitually being armed.” Gamble, McElroy’s Alabama Evidence § 63.01(2) (1977). However, it is not clear that the evidence would have been of any value whatever to defendant on the issue of self-defense. On the contrary, according to the testimony of defendant, his self-defense contention was not based on any apprehension of being hurt by a butcher knife in the hand of the victim but by a handgun or pistol. He testified that he shot her while she was leaving her automobile and he was on the ground. He said she owned a .25 automatic, that she had in the past pointed it at him and that she kept it in her purse “at all times.” He further testified:

“She reached for her purse and stuck her hand in it, and I began to shoot.”

At the time the question was asked as to whether the victim generally carried a butcher knife, defendant had just stated that he had taken a butcher knife from her on a prior occasion, at another place. Whether she generally carried a butcher knife did not seem to have any relevancy on the subject of his testimony at that time. Under all the circumstances, the trial court is not properly chargeable with error in sustaining the State’s objection to the question. Furthermore, we are of the view that the ruling did not cause substantial injury to defendant.

Another ruling of the court constituting the basis for appellant’s complaint occurred during the following part of the direct examination of Officer Sammy Mulberry, a first cousin of defendant:

“Q. And what happened?
“A. Didn’t anything happen right then, not as long as I was with him, he got his things and left.
“Q. And did you see him later that day?
“A. Yes, I did.
“Q. And what had happened since you had last seen him?
“MR. YOUNG: Now, we object unless he knows, unless he knows of his own knowledge.
“THE COURT: Sustained, unless he knows.
“MR. RADNEY: Your Honor, this is a statement what the Defendant said to him.
“MR. MORRIS: This is prior to the event, though, January 26th.
“THE COURT: Sustain the objection.
“MR. RADNEY: Reserve an exception. Answer their questions.
“MR. YOUNG: No questions.
“THE COURT: Very well. Call your next witness.”

It appears that perhaps defendant’s counsel was seeking to ascertain from the witness what the defendant said “had happened since you [he] had last seen him,” and it is conceivable that under some circumstances it would have been admissible, even though on its face it would appear to be a self-serving declaration of defendant, occurring several days before he killed his wife. Even so, the question did not call for what the witness heard the defendant say, but as to what had happened between the two times that day that he had seen defendant. The court was correct in sustaining the objection unless it was shown that the witness had knowledge of what had happened, with which condition it appears that the witness could not comply.

In his brief, appellant refers to one other instance in support of his contention that the court “erroneously limited the introduction of evidence as to the issue of mental capacity.” It was during the direct examination of defendant and just after defendant had testified as to an occurrence about three weeks before his wife was killed and as to how defendant felt during the intervening three weeks. The transcript on the point is as follows:

“Q. Did you lose weight?
“A. That’s right.
“MR. YOUNG: I would like to ask the Court to ask Mr. Radney to quit leading the witness.
“THE COURT: You are leading, but go ahead.
“Q. How much did you lose?
“A. Twenty pounds.
“Q. About twenty pounds?
“A. That’s right.
“Q. Do you know why?
“MR. YOUNG: And we object.
“THE COURT: Sustain the objection.
“Q. Let me ask you this: Did you go to any medical doctors?
“A. That’s right.”

Appellant cites no authority to support any claim that the ruling of the court was erroneous. There is ample authority to support the view that a lay witness can testify that he has lost weight, but generally he cannot testify as to the cause. Gamble, McElroy’s Alabama Evidence, § 128.09 (3d ed. 1977).

“. . .As tending to support the allegation that plaintiff was injured, and showing the extent and character of his injuries, it was proper to receive evidence of the physical condition within a reasonable time prior and subsequent to the injury, that he suffered loss of weight . and to all of these things it was competent for the plaintiff to testify as a witness in his own behalf, and the opinion of expert professional witnesses as to the cause of his subsequent condition might be received. (Citations omitted).” St. Louis & S.F.R.R. Co. v. Savage, 163 Ala. 55, 57, 50 So. 113, 114 (1909).

The application for rehearing should be overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Lewis FLOYD, Jr. v. STATE.
    5 Div. 478.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied Aug. 19, 1980.

      Larry W. Morris of Radney & Morris, Alexander City, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

For the purpose of a correct understanding of appellant’s contentions on this appeal from a judgment and sentence of fifteen years imprisonment for robbery, we quote from his STATEMENT OF FACTS:

“On the 6th day of July, 1979, John Griffin [the alleged victim] and Billy Wayne Davis, employees of the Sonic Drive-In, were closing the restaurant around 12:30 a. m. when two men allegedly appeared and demanded their money. One of the men was armed with a rifle and was wearing dark clothing. The other person was wearing light clothing. During the course of the robbery, two Lanett policemen drove up, and the two men fled on foot behind the restaurant into a wooded area. The officers chased the fugitives, but they did not apprehend them.
“Adjacent to the Sonic Drive-In was a vacant parking lot and a building called the Snow Cap Drive-In. The parking lot was customarily filled with unattended parked cars. During the course of the chase, the officers observed an unattended car in the Snow Cap Drive-In parking lot, and they went over, looked into the car and removed an Alabama driver’s license from the vehicle. Officer Hutchi-son then showed the drivers license to the employees of the Sonic Drive-In, and they identified the picture on the license as the one who robbed them. Later that day, Billy Wayne Davis was taken to the police station and was shown a mug shot of Lewis Floyd, Jr. whom he identified as one of the robbers. During the afternoon of July 6, Lewis Floyd, Jr. was picked up and arrested by the Lanett Police and was taken into custody. At the police station, Floyd informed the investigators that he desired a lawyer to be present at the station. However, a lawyer was not furnished, and he was promptly placed in a line-up and was identified by John Griffin who had previously been shown Floyd’s drivers license . . . .”

During lengthy testimony and argument on a pretrial motion to suppress evidence as to the identification of defendant, he contended “that the whole identification process is tainted.” He particularized the grounds for his contention by urging (1) that the testimony by Griffin and Davis as to the identity of defendant as one of the robbers was tainted by the fact that they had been shown the driver’s license picture of defendant that the officers had taken from the unattended automobile and (2) that the in-court identification of defendant by John Griffin was additionally tainted by a lineup procedure subsequent to his seeing the photograph of defendant on the mentioned driver’s license, at which lineup defendant was not afforded a lawyer, as requested by him.

The trial court overruled defendant’s motion to suppress the testimony of the witnesses as to their identifying defendant at the time and place of the robbery as one of the robbers, but in doing so the trial court said, inter alia:

“Motion is granted with respect to paragraph 2, that is, any testimony with respect to identification made pursuant to a lineup, is suppressed. The lineup being held in violation of the constitutional rights of this defendant, subsequent to the time that he requested a lawyer. All right, what about paragraph 1.
“Motion is granted with respect to paragraph one, to the extent that the State cannot offer any evidence with respect to the driver’s license. However, I believe there is enough independent testimony with respect to the witness’ ability to identify this defendant, separate and apart from the lineup, and separate and apart from the driver’s license, to let that question of identity go to the jury.”

In somewhat of an anomaly, though an understandable one, appellee takes the position that the trial court was in error in a part of its rationale as to each of the rulings complained of by appellant but that there was no error committed in either of the actual rulings. Appellee says that there was no unconstitutional search of the unattended automobile, or seizure of defendant’s driver’s license and picture therein, and that there was no violation of defendant’s constitutional right to an attorney at the time he was viewed in a lineup.

Notwithstanding the strong argument of appellee to the effect that there was no unconstitutional search or seizure, we find it unnecessary to decide that question. We find that aside from such question, there is no legal basis for holding that the in-court identification by either Griffin or Davis of the defendant as one of the persons who committed the particular robbery was tainted by his having observed at the scene of the robbery defendant’s photograph, whether such photograph was unconstitutionally seized or not. There is no causal connection per se between any unconstitutional seizure of the photograph of an accused and the identification by an eyewitness to a crime of the person whose picture he sees as the one who committed the crime. The injustice to be thwarted in permitting a witness to make an in-court identification of defendant when he has previously made an out-of-court identification of him by a picture or otherwise is the substantial likelihood of irreparable mis-identification by reason of impermissibly suggestive pretrial identification. The fact that a particular picture has been illegally taken, or even stolen, does not in and of itself connote that suggestiveness that is a material factor in the creation of a situation tending to lead to a misidentification. There is nothing in the record to indicate that there was any suggestive conduct on the part of the officers. Indeed, there is no contention to that effect. The particular contention of appellant is, as it was on the trial, that the fruit of the poisonous tree doctrine finds application in the claimed unreasonable search and seizure as the poisonous tree and the identification as a fruit thereof. Assuming the existence of a poisonous tree in an unreasonable search and seizure, the in-court identification was not a fruit thereof.

In the orchard nurtured by the judicial department of government, the tree of impermissible suggestiveness is not the only “poisonous tree.” There are others that bear fruit after their kind. Since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961), courts of Alabama have recognized and treated an unconstitutional search and seizure as such a tree. Duncan v. State, 218 Ala. 145, 176 So.2d 840, 865 (1965); Davis v. State, 44 Ala.App. 145, 204 So.2d 490, 494 (1967); Owens v. State, 51 Ala.App. 50, 282 So.2d 402, 413 (1973), cert. denied, 282 So.2d 417 (La.). Even so, the fact that there had been a violation of defendant’s right to security against an unconstitutional search and seizure did not preclude admission in evidence of all evidence tending to show he had committed a crime. For the search or seizure to be a barrier to the evidence, there must be a causal relationship between it and the evidence. It must be more than a mere condition, a mere coincidence or antecedent.

The fruit of the poisonous tree in unconstitutional search and seizure cases is readily observable in the actual objects seized or found. Evidence as to them is not admissible. They are the direct result of the unconstitutional conduct. In some cases the inhibition has been extended to the fruit or results that are not as closely related to such conduct. The Supreme Court spoke to this point in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, 455 (1963) as follows:

“. . . [N]or is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’ Nardone v. United States, 308 U.S. 338, 341, 84 L.Ed.2d 307, 312, 60 S.Ct. 266. We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Ma-guire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were ‘come at by the exploitation of that illegality’ and hence that they may not be used against Toy.”

We take it that it is conceivable that the officers in showing the victim the driver’s license picture of defendant found in the motor vehicle could have been guilty of “exploitation” thereof, but there is no contention to that effect and there is no semblance of evidence to support such a contention. We can hardly conceive of any exploitation other than some in the nature of “impermissible suggestiveness,” as to which, as we have already noted, there is none shown or suggested in the record.

Appellant seeks also to apply the fruit of the poisonous tree doctrine to the in-court identification of defendant by charging that such identification was the fruit of an unconstitutional lineup in which defendant appeared at jail the day after the night of the robbery. The trial court ruled with him as to the question of the constitutionality of the lineup and suppressed evidence with reference to the lineup, but it ruled against defendant in declining to suppress as evidence the in-court identification of defendant as one of the robbers. It is undisputed that no attorney for defendant attended the lineup, but the record is not as clear as it should be as to whether there had been any express or implied request that an attorney for him attend the lineup. There is some evidence to the effect that before 'he lineup was conducted he had requested a lawyer. On the other hand, at that time he had signed a written statement as a preliminary to any questioning of him by officers, which concluded:

“I do not desire the service of an attorney before being questioned, and agree that any statement made by me is of my own freewill.”

The pertinent facts as to any attorney-client relation are vague, but the law is clear as to whatever that situation may have been at the time, as stated in Sparks v. State, Ala.Cr.App., 376 So.2d 834, 841 (1979):

“Appellant contends that his constitutional rights were violated when he was placed in a lineup in the absence of his counsel. He relies on Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Gilbert involved a post-indictment lineup and reliance on it in this case is misplaced. The lineup in the instant case was a pre-indictment lineup. There is no constitutional right to counsel at a pre-indictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; Deloach v. State, Ala.Cr.App., 355 So.2d 222. Ala.Digest, Crim. Law <®=641.2.
“Though in this instance, the defendant did not have the right to counsel furnished to him by the State, he had employed counsel and had a right to have him present. The record reflects that the defendant voluntarily, knowingly, waived the presence of counsel. When the officers attempted to phone the defense counsel, the defendant stated, ‘Let’s go ahead and get this thing over with; I’m smarter than the damn lawyer anyway. Let’s get it over with.’ Upon examination by the court the defendant testified that he understood his rights and had understood them since at least 1974 and probably since he was in junior high school. The defendant was not denied right to counsel if he intelligently and understandingly rejected offer of counsel. Henry v. State, 46 Ala.App. 176, 239 So.2d 318; Ex parte Allison, 42 Ala.App. 507, 169 So.2d 436; Smith v. State, 49 Ala.App. 147, 269 So.2d 164.”

Whether the trial court was correct in its ruling in favor of defendant that the lineup procedure was unconstitutional and that evidence as to the lineup identification should be suppressed is not necessary for us to determine in order to determine correctly whether the in-court identification should have been suppressed. Here again, there was no causal connection between the tree (a lineup without the attendance of counsel) and the fruit (the in-court identification). There is no contention that there was any impermissible suggestiveness about the lineup that could have tainted the in-court identification.

For the reasons stated, we hold that the in-court identification by witnesses of the defendant as one of the robbers was not the fruit of any poisonous tree, either impermissible suggestiveness, an unreasonable search and seizure, or an unconstitutional lineup. In addition, it is clear that there was no error in the admission in evidence of any in-court identification for the reason that, as held by the trial court, the in-court identification by each witness was independent of all considerations other than those perceived and comprehended by each of them at the time and place of the crime.

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.


author: BOWEN, Judge.

text:
    Sanders B. WILLIAMS v. STATE.
    6 Div. 48.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.

      Bill Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of his wife, Lucille T. Williams, “by beating, kicking or stomping her.” A jury convicted him of manslaughter in the first degree and fixed his punishment at ten years’ imprisonment.

I

The defendant contends that a statement given to the police after his arrest was involuntary because it was obtained after he elected to exercise his constitutional right to counsel before questioning under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Around 3:30 on the morning of November 6,1978, the defendant telephoned the Hamilton Police Department. When an officer arrived fifteen minutes later, the defendant told him, “I can’t wake her up. * * * We’d been drinking last night and we had a fight, and I beat her up pretty bad and then I went to bed. * * * Now I can’t wake her up.” The defendant was arrested and placed in the Marion County Jail around 4:00 that morning. The defendant telephoned his sister when he first arrived at the jail. At that time he did not tell her that he wanted a lawyer.

Beginning at 6:10 A.M. a statement was taken from the defendant. The entire conversation between the defendant and the investigating officers was tape recorded: “Everything that was said was recorded.”

The transcript of the tape recording shows that the defendant was warned of his constitutional rights and signed a paper acknowledging this. After giving his name, date of birth and address the following occurred:

“Q. Bunky, if you will, just tell us what happened over there last night.
“A. Well, now you’ve advised me that I don’t have to tell anything till I get a lawyer and I intend to get a lawyer and so I don’t know-I found Lucille there this morning a laying in the floor and I couldn’t her (sic) no breathe or breathe or nothing and I thought she must be dead and she is.”

After this the questioning of the defendant continued until the following occurred:

“Q. Okay, when you woke up, did you find her in the same position she was when you went to bed?
“A. I don’t know. I think if I’m gonna have a lawyer, I need a lawyer present while I’m talking to you.”

Despite this statement the questioning of the defendant continued again, however the trial judge wisely excluded the portion of the interrogation following this request for an attorney.

At the hearing on the motion to suppress the confession the following testimony was elicited from the defendant:

“Q. Nobody at that time coerced you about making a statement against your will?
“A. No, Sir. They may have after I said I wanted an attorney. Undoubtedly somebody kept questioning me after I said that.
“Q. Is what you said there, regardless of what you said, did you mean to say it voluntarily, or did somebody make you say it?
“A. I said it voluntarily.”

Miranda commands that, if a defendant once asserts his right to consult with counsel and “interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475, 86 S.Ct. at 1628. Under the circumstances of this case, we do not think that the officers were required to initiate “some form of inquiry designed to clarify the defendant’s intentions.” Kennedy v. Pinkney, 473 F.Supp. 1279, 1284 (C.D.Ill.1979); United States v. Chansriharai, 446 F.Supp. 107, 109 (S.D.N.Y.1978).

“An inference of a waiver may be drawn from the making of a statement after warnings have been given and when the defendant was aware of his right not to speak.” Sullivan v. State, 351 So.2d 659, 664 (Ala.Cr.App.), cert. denied, Ex parte Sullivan, 351 So.2d 665 (Ala.1977).

The statements in United States v. Hines, 605 F.2d 132, 134 (4th Cir. 1979), are applicable to this case.

“A defendant who has been fully informed of his rights, who understands those rights, and who nevertheless spontaneously and voluntarily discloses information to persons he knows to be law enforcement officers, may not invoke Miranda to exclude his statement at trial. In that situation, no sixth amendment right is violated. Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Grant, 549 F.2d 942, 946 (4th Cir. 1977). These principles are applicable to Hines (the defendant). It was he who spontaneously initiated the discussion about his involvement with the FBI. The agent’s subsequent inquiry sought only clarification of this aspect of the incident. After answering the agent, Hines voluntarily, and not in response to any interrogation, described his participation in the counterfeiting transactions. Hines is well educated and he fully understood his rights. There is no evidence of any improper conduct on the part of the agent. Moreover, Hines’ statement was consistent with his defense. These facts buttress the inference of an implicit waiver of his right to counsel and establish that his statement was voluntary. In these circumstances there was no violation of Hines’ sixth amendment rights.”

II

The trial judge refused one hundred and nineteen charges requested by the defendant.

Most of these requested charges were properly refused because they were covered in the court’s oral charge. Others were affirmative in nature or not predicated upon a belief from the evidence, Thompson, 369 So.2d 50 (Ala.Cr.App.1979), and for these reasons their refusal was proper.

III

The undisputed and uncontradict-ed evidence shows that the homicide occurred in the house occupied by the defendant and his wife, the deceased. The trial court charged the jury on the rule that requires retreat as one of the elements to sustain a plea of self-defense. The court also gave defendant’s requested charge number 86 which reads as follows:

“The Court charges you that the law does not require one who is assailed at his own dwelling to retreat from, but the law permits him, and says that it is his right, to stand his ground and kill his assailant if it necessary so to do to save his life, or to protect himself from great bodily harm, provided he was without fault in bringing on the difficulty; and in this case the Court charges the jury that if they believe from the evidence that the deceased so acted as to create in the mind of defendant reasonable belief that he was in danger of life or sustaining great bodily harm, at the hands of the deceased, then the defendant, under the law, had a right to strike deceased and take her life, if such striking was necessary to protect his own life, or from sustaining great bodily harm at the hands of the deceased.”

The State’s argument that by giving the requested instruction the trial court cured any error in charging the jury that the defendant had a duty to retreat is without merit simply because the jury was never instructed that this particular defendant did not have a duty to retreat. Under the circumstances we are not willing to declare the error harmless. Vinson v. State, 32 Ala.App. 74, 22 So.2d 341, cert. denied, 247 Ala. 22, 22 So.2d 344 (1945); Smith v. State, 29 Ala.App. 212, 195 So. 290, cert. denied, 239 Ala. 301, 195 So. 293 (1940).

Defense counsel repeatedly and strenuously objected to the court’s instructions on the defendant’s duty to retreat. The trial court refused several written instructions which charged that the defendant had no duty to retreat under the circumstances of this case.

A person attacked in his own dwelling is not bound to retreat before defending himself. Jones v. State, 76 Ala. 8 (1884); Bryant v. State, 252 Ala. 153, 39 So.2d 657 (1949).

The rule was stated in Ison v. State, 252 Ala. 25, 26, 39 So.2d 249 (1949) that if there is evidence offering an inference that the defendant willfully engaged in the altercation culminating in the death of the deceased a requested charge that there was no duty to retreat should be refused. Here, only speculation may be substituted for such an inference. Ison v. State, 34 Ala.App. 263, 39 So.2d 247, cert. denied, 252 Ala. 25, 39 So.2d 249 (1949). The defendant was the only witness to the confrontation that resulted in his wife’s death and he was so intoxicated that even he could not remember all of the details. However, his testimony does show that his wife was the aggressor. The State presented no evidence to dispute this.

This issue has recently been treated in Wilkinson v. State, 374 So.2d 396 (Ala.Cr.App.), cert. denied, 374 So.2d 400 (1979); Wilkinson v. State, 361 So.2d 400 (Ala.Cr.App.), cert. denied, 361 So.2d 405 (1978); Usrey v. State, 54 Ala.App. 448, 309 So.2d 485, cert. denied, 293 Ala. 776, 309 So.2d 489 (1974). In the following cases the conviction was reversed for the failure of the trial judge to give the requested instruction that the defendant had no duty to retreat. Hutchinson v. State, 170 Ala. 29, 54 So. 119 (1910); Watts v. State, 177 Ala. 24, 59 So. 270 (1912); Mosley v. State, 22 Ala.App. 95, 112 So. 811 (1927); Terry v. State, 21 Ala.App. 100, 105 So. 386 (1925); Resmando v. State, 24 Ala.App. 566, 138 So. 425 (1931).

In Wilkinson, 361 So.2d at 404, this Court held that “it is not error to ‘mention the ordinary rule that requires retreat’ and then declare to the jury that the instant defendant owed no such duty.” Wilkinson, 374 So.2d at 399. Here, as in Usrey, 54 Ala.App. at 451, “the evidence was unequi-vocably clear that the appellant was in his own home where he had a right to be, and there was no factual issue on retreat for the jury to decide.” For this reason, the conviction of this defendant is reversed.

REVERSED and REMANDED.

All Judges concur.

      . The defendant was warned:
      “Q. . . Anything you say can and will be used against you in court. You have the right to talk to a lawyer for advice before asked any questions, to have him with you during questioning. If you can’t afford a lawyer, one will be appointed without cost to you before any questioning, if you wish. If you decide to answer questions now without a lawyer present, you still have the right to stop answering at any time you wish.”


text:
    Robert Woodrow HARE v. STATE.
    6 Div. 185.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.
    J. Louis Wilkinson and Charles M. Purvis of Wilkinson, Purvis & Dodd, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the possession of certain substances in violation of the Alabama Uniform Controlled Substances Act. Sentence was five years’ imprisonment.

The single issue raised on appeal is the propriety of the trial judge’s overruling the defendant’s plea of autrefois convict without a hearing.

On the day of trial, the defendant filed a plea alleging that his conviction in the Circuit Court of Humphrey County, Tennessee, in October of 1978 for the burglary of the Nautilus Pharmacy in Waverly, Tennessee, should prevent him from being prosecuted for the possession of the controlled substances (which he alleges he obtained in the burglary) in Jefferson County, Alabama. The State filed a demurrer to the plea which the trial court sustained without a hearing.

Although no hearing was conducted the demurrer was properly sustained. Even if the defendant proved the allegations of his plea, the conviction of burglary in Tennessee would not prevent the defendant’s trial or conviction for possession of controlled substances in Alabama. These crimes are not the same in law and fact and therefore will not support a plea of former jeopardy. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973); Brown v. State, 367 So.2d 557 (Ala.Cr.App.), cert. denied, Ex parte Brown, 367 So.2d 559 (Ala.1978).

Moreover, even if the crimes were the same,

“[a] conviction in one state for an act in violation of its laws is not a bar to a prosecution in another for the same act, if it violates the laws of the latter state, unless it is otherwise provided by statute, or unless by compact between the states it has been agreed that jurisdiction shall vest exclusively in the state first apprehending and arresting accused.”

22 C.J.S., Criminal Law § 296(c) (1961). Where the issue presented by a plea of former jeopardy is only a matter of law, the judge need not submit that issue to a jury. Billups v. City of Birmingham, 367 So.2d 518, 522 (Ala.Cr.App.1978), cert. quashed, 367 So.2d 524 (Ala.1979).

We have searched the record for error and found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Edward POPE v. STATE.
    3 Div. 209.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of Marion Dortch, alias Quasim Bilal El-Amin. Sentence was life imprisonment.

I

On appeal, the defendant alleges that error was committed because the court reporter failed to transcribe the prosecutor’s opening statement.

A supplemental transcript was filed in this Court. It contains the opening statement of defense counsel and the closing statements of the assistant district attorney and defense counsel. In an introduction to this transcript we learn why the court reporter’s failure to transcribe the prosecutor’s opening statement was not error.

“The opening statement of counsel for the State, Louis Gillis, does not appear due to the fact that the Court Reporter, Gail Morgan, failed to transcribe said opening statement as requested by Defendant’s counsel and ordered by the Court. However, no objections were made by counsel for the Defendant during the opening statement by counsel for the State, Mr. Gillis.”

Since defense counsel made no objection he has no legitimate cause to now complain.

II

The defendant also argues that the record does not reflect his motion to exclude made at the close of the State’s case. While admitting in his brief that the ruling of the trial judge denying this motion “most likely was correct”, it is argued that “a silent record has a ‘chilling effect’ upon a defendant’s right to an appeal.”

The rules of appellate procedure recognize this chilling effect and provide for the correction or modification of the record on appeal. Rule 10(f), Alabama Rules of Appellate Procedure. This rule specifically authorizes the correction of an omission from the record. This rule was not used to supply the complained of omission.

The defendant and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a correct record. Tyus v. State, 347 So.2d 1377, 1380 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977). Additionally, we note that counsel could have preserved this alleged error by filing a motion for a new trial containing such grounds as the insufficiency of the evidence to support a conviction and the failure of the State to prove a prima facie case.

We have thoroughly examined the evidence and conclude that the jury was amply justified in reaching its verdict of first degree murder. The State’s evidence shows that the defendant shot his victim, a total stranger, without apparent cause or reason.

III

Immediately before sending the jury to the jury assembly room for a short recess, the trial judge inquired: “Does anyone have any objection to the Jury separating during recesses?” Defense counsel replied “No, Your Honor.”

This is the only reference to this matter which appears in the record. While the action of the trial court was improper, Alabama Code Section 12-16-9 (1975), there is no objection by defense counsel. Alleged prejudice resulting from an improper jury separation cannot be raised for the first time on appeal. Luttrell v. State, 357 So.2d 1018 (Ala.Cr.App. 1978); Cooper v. State, 340 So.2d 871 (Ala.Cr.App.), cert. denied, 340 So.2d 872 (Ala.1976).

IV

The defendant’s inculpatory statement was properly admitted. When Montgomery Police Officer R. C. Stroude first stepped into the room where, the body of the deceased was located, he asked, “Did anyone here see what happened?” The defendant replied, “I shot him.” The spontaneous statement of a defendant made during a general on-the-scene investigation of the facts surrounding the crime is admissible against the defendant even though it was made before he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Kelley v. State, 366 So.2d 1145, 1148-49 (Ala.Cr.App. 1979); Espy v. State, 365 So.2d 356 (Ala.Cr.App. 1976).

V

Although the defendant’s prior criminal record may not have been admissible to impeach him if initially introduced by the State, the matter of the defendant’s record was initially injected into the trial by defense counsel on direct examination of the defendant. The State was then entitled to cross examine the defendant on his past record to the extent it did. Green v. State, 352 So.2d 1149 (Ala.Cr.App. 1977); Baker v. State, 344 So.2d 547 (Ala.Cr.App. 1977). See also Pugh v. State, 355 So.2d 386 (Ala. Cr.App.), cert. denied, Ex parte Pugh, 355 So.2d 392 (Ala.1977); Conley v. State, 354 So.2d 1172, 1178 (Ala.Cr.App. 1977); Alabama Code Section 12-21-162 (1978).

We have carefully searched the record and found no error prejudicial to the accused. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Clarence Louviere ROBERTS v. STATE.
    4 Div. 788.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.

      Daniel E. Robison, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of murder in the first degree of Violet Lence Roberts, his wife. They had been married approximately two years. During a large part of that time their marital relationship was stormy. There is no contention on appeal that the evidence was not sufficient to support the verdict of the jury. We are clear to the conclusion that there is no reasonable basis for such a contention, even though mystery to some extent hovers over the undisputed facts and circumstances. Seldom, in real life or in fiction, have they ever been so macabre. We merely summarize some of them that may be needed for the purpose of a better understanding of the only issue raised by appellant, and the reasons for the judgment of this court as hereafter shown.

According to the testimony of William Howard Metcalf, who was then employed with the Houston County Bridge and Road Department, he was operating a motor grader in the vicinity of Highway 231 in Houston County, on January 22,1979, a few miles south of Dothan, when something yellow lying in a field attracted his attention. He stood up and observed the outline of a human body. He immediately called for help, which call was relayed to the Sheriff’s Department. According to other undisputed evidence, law enforcement personnel arrived promptly at the scene of the body. They found the body of a white female, apparently about forty years of age, wearing a peach-colored blouse and a pair of yellow slacks. Her head had been bludgeoned, and she had been stabbed in the back ten or eleven times. A state toxicologist and death investigator of the Alabama Department of Forensic Sciences came to the scene before the body was removed. He performed an external autopsy of the body before its removal; thereafter, at the morgue he performed an internal autopsy. His conclusions were stated on trial that he observed partial rigor mortis for the first time at 11:15 A.M. when the body was at the morgue and full rigor mortis by 3:00 P.M. He said that there were eleven stab wounds in the back and that her skull had been fractured into various small pieces. Some of the stab wounds had entered the left lung, and one had punctured the liver. He said she died either from the stab wounds or the blows upon her skull. There were other wounds about the body.

News of the finding of the obviously murdered body was diffused promptly and extensively by the usual media, which included an appeal from the law enforcement authorities that they be informed by anyone who could identify the body. The body was not identified until it was viewed by the mother of the victim on January 29, 1979. On the same day, officers, equipped with a search warrant, searched the apartment of defendant and the victim. It was found that there had been recent painting, particularly a part of a couch, with black paint. There was a paint bucket in the apartment. Various tools were found in the apartment. Many of the contents of the apartment were examined by a criminalist with the Alabama Department of Forensic Sciences, a specialist in serology, who testified that as to many of the items the tests made by her were negative as to the presence of blood, but they were positive as to a part of the fabric from the living room sofa or couch, a hunting knife, a claw metal-handled hammer and paper from a waste basket in the bathroom.

The mother of the victim, who lived in Key West, Florida, testified that defendant had brought Mrs. Roberts by automobile to the mother’s home about January 6, 1979, left her there to visit her mother, returned to Key West in about two weeks, then left with his wife to return to Dothan on January 21 at about 7:00 A.M. She said that about 7:00 P.M., defendant called her and told her of their arrival at Dothan. She said she asked for Violet, and he told her that she was bringing in her plants on account of the cold. She said also that he called her on the telephone on January 24 and on January 25, telling her on January 24 that Mrs. Roberts was “Okay” and on January 25 that he had taken her to a doctor, that she had a stomach virus.

There was evidence that defendant was at work on Monday, January 22, 1979, and that he was in Dothan until the latter part of that week, but that thereafter, he was elsewhere for weeks until he was returned . from Brenham, Texas, to answer the charge of murdering his wife. At Brenham, he was operating a grey Chevrolet owned by his wife. Pictures were taken of the tread of a tire of the automobile and of the tire tracks of an automobile that led to the body of the victim as it was found on January 22 in the field near Highway 231. The pictures were introduced in evidence. They bear a striking resemblance. Tools and various items from the automobile were tested for blood. The tests were negative. Among the items in the trunk of the automobile were a room deodorizer and a leather sheath commonly used for carrying a hunting knife.

As shockingly incredible as the circumstances stated are as to the murder of Mrs. Roberts, particularly as to what happened to her a short time before her body was found, they are “incredible” in the weakened sense only of the word, that is, extremely extraordinary or unusual. They call to mind what was said by the Old Man outside the castle the morning after the night of the bloody murder of King Duncan:

“Threescore and ten I can remember well;
“Within the volume of which time I have seen
“Hours dreadful and things strange; but this
“Hath trifled former knowings.”

Macbeth, Act II, Scene II

Defendant did not testify, but his extraordinarily lengthy statements in question and answer form, were admitted in evidence over his objection and notwithstanding his motion to suppress, which was denied. It is to this action of the trial court that the only issue raised by appellant is addressed and to which we now direct our attention.

Soon after the identity of the murdered woman had been established on January 29, 1979, a warrant for the arrest of defendant for the murder was procured. Soon after officers learned of defendant’s whereabouts in Brenham, Texas, they went to Brenham and interviewed him while in custody there. The officers from Alabama who questioned him were Houston County Sheriff A. B. Clark, Lieutenant Joe Pitts and District Attorney Mike Brown. A statement was taken from him on February 14 at Brenham, another statement on February 15 at Bren-ham, and on February 20,1979, a statement was taken from him at Dothan, Alabama. The record shows that all three of the named officers participated in the questioning of defendant in both statements in Brenham and that Sheriff Clark and Lieutenant Pitts conducted the interrogation in Dothan. The combined statements constitute eighty-nine pages of the transcript. They are shown twice, once on the hearing of the motion to suppress and the other on the trial of the case before the jury. Perhaps the core of the basis of appellant’s contention that the trial court was in error in admitting defendant’s statements, which unquestionably included many inculpatory admissions but which did not contain a confession, can be best summarized by the following quotations from appellant’s brief:

“We admit the Defendant was given the Miranda warnings. (R. 113) Several times as a matter of fact. But the record clearly shows he changed his mind several times, requested an attorney, and yet was led back into the labyrinth of questioning by the officers present at the three sessions.
“At the hearing on the Motion to Suppress, Assistant District Attorney Mike Brown read from Defendant’s statements. Five times the Defendant asked either to stop the questioning or to have an attorney: at R. 115, R. 117, R. 118, R. 119, and R. 121.”

There is no contention that there was any variance between the contents of that which was read on the hearing on the motion to suppress the evidence and that which was read in the presence of the jury on the trial of the case, but we think that a more ready understanding of the portions of defendant’s statements contained in the cited references to the evidence on the hearing of the motion to suppress can be obtained by considering the comparable portions of the statements as read on the trial in the presence of the jury. It appears that for that good reason appellant’s counsel quotes a portion of the official transcript of the evidence on the subject as read on the trial in the presence of the jury. We now follow that method, by quoting therefrom not only that which appellant quotes in his brief, but also some of the context of such quoted material.

After lengthy evidencé as to the oral and written waiver by defendant of his constitutional rights against self-incrimination and to the benefit of counsel at the expense of the prosecution, and a plenary showing that defendant voluntarily, intelligently and understanding^ was willing to make a statement as to his statement on February 14,1979, the transcript shows the following:

“Pitts: Having those rights in mind, do you wish to talk to us at this time?
“Roberts: With the right to refuse to answer any question, yes, sir.
“Pitts: All right. Now, in order for us to go ahead and talk to you at this time, you have to waive your rights that I have read. And the waiver states as such. I have read or had read to me [Thereupon Mr. Pitts read to the defendant from his signed waiver, including his statement therein ‘and, I am willing to make a statement or answer questions. I do not want a lawyer at this time. I understand and know what I am doing.’]
“Brown: Okay. And you are willing to talk to us? Is that correct?
“Roberts: To a certain point, with the right to refuse to answer certain questions without a lawyer being there.
“Clark: And, I did tell you the charge is Murder, First Degree?
“Roberts: Yes, sir.
“Brown: Are you saying that you are willing to answer certain questions and you will tell us which ones you don’t want to answer? Is that correct?
“Roberts: Yes, sir.
“Brown: At any time you want to stop the questions, do you understand that you are entitled to do so and tell us that you understand that, Clarence?
“Roberts: Yes, sir.”

The quoted material is as to one of the times that appellant says the defendant asked “either to stop the questioning or to have an attorney.” Another time was after nine pages of questions and answers in the February 14 statement that pertained to what occurred when defendant said he went to his apartment about 11:00 A.M. on Monday morning, January 22, 1979, after having been told by his landlord that some wires were cut at the apartment, as shown by the following:

“Brown: Okay. Did you go outside any?
“Roberts: Yes, sir.
“Brown: All right. Did you enter through the front door?
“Roberts: Yes, sir.
“Brown: Did you use your key to get in?
“Roberts: Yes, sir.
“Brown: Okay. What happened when you got inside?
“Roberts: I don’t want to talk about it now.
“Brown: You don’t want to talk about that? Okay. But you are willing to answer other questions, is that correct?
“Roberts: Yes, sir.
“Brown: All right. When you are willing to pick it up from there?
“Roberts: When I have a lawyer present and after I talk to him.
“Brown: You don’t want to answer any further questions?
“Pitts: What he is saying is excluding that part of it, is there anything you want to pick up and give us a statement concerning other than that particular part? Or, would you pick up at a later date, you know and-
“Roberts: All right. Well, the Tuesday.
“Pitts: Okay.
“Roberts: I got in my car, the Chevelle to go home.
“Brown: But, you are willing to go ahead and answer questions?
“Roberts: Yeah.
“Brown: Okay. You don’t have -—
“Roberts: As far as anything besides the apartment.
“Brown: You don’t want a lawyer present for that, do you?
“Roberts: No, sir, I will just tell you what happened to me after that.
“Brown: Okay.”

Thereupon for about eight transcript pages there were questions and answers without any interruption and without any apparent desire for a lawyer until after the following:

“Roberts: . . But, I did not kill her.
“Brown: Okay.
“Roberts: And I figured whoever killed her was after me. I did not sleep for four damn days.”

At that point, defendant made a long statement about another case in which he referred to the prosecutor in the other case in Montgomery. There was some uncertainty as to the name of the prosecutor. The transcript continues as follows:

“Roberts: No, sir. Wasn’t it an Evan something? Seems like it was, I can’t remember.
“Clark: Seems like it was. I can’t remember. Clarence, let me ask him this, see? You even talked to some of your friends about moving that couch out. And about borrowing his truck and I want you to level with yourself. I think you would feel better for your own friend has told, you know, on Monday you were going to borrow it and haul the couch out. Then he told you that he would help you on Thursday and he didn’t and you went to his place on Saturday afternoon. And he was going to help you carry that couch out, destroy the couch. So I am just talking to you, do you want to level with us? Don’t you think you would feel better?
“Roberts: Not until I see a doctor and a lawyer, no. Because, I can’t sort it out no more.
“Clark: Well, you came up Sunday night and of course, what your story is pretty much so is what we know. Then you went back there you see, and you went to work and all that stuff, see we trailed you all week. And, I know where you went on Friday and I know where you went on Saturday and —
“Roberts: We were going to Tallahassee that weekend.
“Clark: Yeah, you were down Saturday night.
“Brown: Well, Clarence, you are still willing to answer questions, what questions you want to answer without a lawyer present?
“Roberts: Yeah.
“Brown: You are willing to do that, is that right?
“Roberts: Yeah.
“Brown: Okay. —-
“Roberts: I want some coffee though.
“Brown: Well, let’s just stop, Sheriff and see if we can get him some coffee.
“Pitts: Okay, Clarence. We got the tape back now. Okay. Now what has transpired is changing over the tape. We have a cup of coffee and we have ordered some sandwiches to eat and basically that’s the main thing that has happened? Correct?
“Roberts: Yes, sir.
“Pitts: All right. Now I want you to go ahead and continue now. Mike, you have, you have a question?
“Brown: Let’s go outside a second. Let a deputy come in here with Clarence a second. I want to talk to y’all for a second.
“Clark: Okay. Drink your coffee there.
“Brown: Okay. We are back on the tape now, Clarence, right?
“Roberts: Yes, sir.
“Brown: Okay. All right. Now, do you want to answer any more questions or would you rather stop right here, keeping in mind all the rights that Mr. Pitts and, Lt. Pitts and Sheriff Clark have advised you of.
“Roberts: If I don’t answer the question, I am not going to answer it.
“Brown: Understanding all of those rights, are you willing to make your own decision I suppose to answer which questions you want to and which questions you do not want to? Understanding that we will stop at any time that you request us to do so or ask us to do so.
“Roberts: Yes sir.”

Thereafter, the interrogation and answers continued uninterruptedly and without any reference to a lawyer, until the following:

“Brown: Okay, Clarence. Did you ever, when you went back in your apartment, I guess it was on Monday, see any blood in there?
“Roberts: I don’t want to answer that question without a lawyer.
“Brown: You don’t think it would be a good thing to stop?
“Clark: Yeah.
“Pitts: Okay, time is 6:00.
“Brown: Clarence, you have answered all these questions you have wanted to freely and voluntarily, haven’t you?
“Roberts: The best I could, yes sir.”

Two other instances apparently relied upon by appellant were while he was making a statement on February 15, contained in the transcript as follows:

“Clark: And, let me ask you this, Clarence. Did you see any blood on that couch?
“Roberts: I won’t answer that question without a lawyer.
“Clark: What did you think when you went in the house Monday morning and she was gone? What did you think? You knew she didn’t have no car.
“Roberts: Like I said, I won’t talk about anything about Monday morning until I see my lawyer.”

We think the foregoing quotations from the statement set forth the substance of all that transpired between the defendant and his questioners on February 14 and 15 that appellant construes as a request by defendant that he either be provided with a lawyer or that the questions be stopped. The last reference to the matter of a lawyer in any of the three-part statement is to be found in the statement of February 20, 1979, while defendant was interrogated in Houston County, Alabama. It is near the end of that statement and is as follows:

“Pitts: Robbie, the Sheriff asked you this two or three different times and each time you wanted to talk to a lawyer before you answered it, which you have got the right to. Ain’t nobody here going to violate that right. I want to ask you again and if you still feel that way, okay. And whatnot [sic]. Do you remember going into the apartment where y’all lived and seeing blood in there?
“Roberts: It is the same answer as before.
“Pitts: Okay.”

Perhaps the quoted question of Lt. Pitts evinces to some extent that Sheriff Clark persisted in asking defendant as to what he saw when he went in the apartment on January 22, 1979, after he had declined to answer such a question in the absence of an attorney representing him. Without approving any repetition of questions the accused had declined to answer in the absence of a lawyer, we do not find that Sheriff Clark intentionally endeavored to thwart the determination of the accused not to answer such questions in the absence of a lawyer. On the other hand, it appears to us that the repeated questioning of the accused on the particular point was to be sure of a correct understanding by the questioner of the precise area of the information sought that defendant was not willing to reveal without a lawyer.

If any of the questions addressed to defendant are to be construed as efforts to get defendant to converse in the area in which he had declined to converse in the absence of a lawyer, such efforts were unsuccessful. He maintained stony silence as to that area during all of the three periods of time, February 14, February 15 and February 20, in which his written statements were taken. He never once indicated at any time before the completion of the three-part statement that he wanted a lawyer. The unusual, if not unique, way in which the interview was processed, that is, by exuberant answers by accused as to many large fields of inquiry, with the understanding that he would answer no questions without a lawyer in a particular limited field, was a creature of defendant’s own mind and dictation.

Appellant takes the position, and strongly fortifies it by authorities, that interrogation must cease when the accused requests an attorney. He largely relies upon Miranda v. Arizona, 384 U.S. 436, 444-445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, in which it is stated:

“. . . If, however, he indicates in any manner and at any state of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any other inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

The stream of the stated principle is deep and broad, but it has a bottom that should not subside and banks that should not overflow. We do not find that defendant, indicated “in any manner and at any stage of the process that he wishe[d] to consult with an attorney before speaking.” On the contrary he made it clear that he did not wish to consult with an attorney before speaking. He was positive that he was willing to talk before consulting an attorney and that he was willing to answer all questions before consulting an attorney, except questions in a particular area that he clearly revealed, and thereupon such sanctuary was not invaded. He never refrained “from answering any further inquiries until he had consulted with an attorney.” He exercised “the right to refrain from answering” some “further inquiries until he ha[d] consulted with an attorney” and that right was not violated.

Appellant captions his entire argument as follows:

“MUST INTERROGATION CEASE WHEN THE ACCUSED REQUESTS AN ATTORNEY?”

We have no difficulty in answering the captioned question in the affirmative. We find it extremely difficult to follow the apparent contention of appellant that defendant requested an attorney and that thereafter the interrogation did not cease. It is to be seen from quotations from the transcript that defendant never definitely and unconditionally stated that he wanted an attorney. As appellant suggests, he did make known at least five times that he would not answer some questions without an attorney. On the other hand, he made it absolutely clear that he was willing, and to some extent it appears that he desired, for questions to be asked him and that he be given the opportunity, which he was given, to answer questions and set forth fully, without any restriction whatever, all that he wanted to say in connection with the investigation.

The eases cited by appellant fully support the proposition that inculpatory statements of an accused cannot be admitted in evidence until there is an affirmative showing that he has voluntarily, intelligently and understandingly waived not only his right against self-incrimination, but also his right to counsel, at the expense of the prosecution; they also support appellant’s contention that when the accused requests an attorney, further questioning must cease. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Biair, 470 F.2d 331 (5 Cir. 1972); United States v. Priest, 409 F.2d 491 (5th Cir. 1969).

In United States v. Blair, it is shown that the accused said, “I have my own attorney, and I want my attorney when I — .” 470 F.2d at 338. In United States v. Priest, when the standard form containing the Miranda warning was given accused, he said “He did not want to sign the form until he had consulted with his attorney.” 409 F.2d at 492. In Maglio v. Jago, 580 F.2d 202, 206 (6th Cir. 1978), also relied upon by appellant, defendant had expressed a desire for an attorney by the statement, “Maybe I should have an attorney.” He was told he couldn’t have an attorney until the next morning, and then after further questions, he orally confessed the murder.

By analogy to none of the authorities cited by appellant can it be said that defendant requested and was refused the services of an attorney. The record shows affirmatively that he was handed the standard form containing the Miranda warnings before any questions were asked him and that he expressly said at each time that “He didn’t want an attorney.”

Whatever valid criticism appellant may have as to the lengthy and ramified and voluble interrogations of accused, it does not correctly include the charge that he was denied any asserted right to an attorney. On the contrary, his right to an attorney was fully made known to him, and he voluntarily, intelligently and understandingly waived his right to an attorney prior to any and every statement made by him. The reason he preferred not to discuss a particular area remains a mystery. It is conceivable that he hurt himself by declining to answer, without any attorney, questions pertaining to that area. This being true, he could have well moved for an exclusion from the consideration of the jury those parts of the interview as to which he exercised his Fifth and Sixth Amendment privileges, and the court could well have excluded them. We cannot say that his declination to answer some of the inquiries in the absence of an attorney was not calculated to help him with the jury. Probably no one knows better than he. He made a deliberate choice as to what he should say and what he should not say without an attorney. It is obvious that the prosecution would have preferred for him to have said more. Whatever effort it made for him to do so was a failure. The ruling of the trial court in denying defendant’s motion to suppress as evidence the statement made by him was not erroneous.

We have searched the record for error prejudicial to defendant 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.


text:
    Prency POKE v. STATE.
    4 Div. 806.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Steven K. Brackin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the grand larceny of “assorted jewelry” from the store “All That Glitters”. Sentence was six years’ imprisonment.

On appeal the defendant contends that it was reversible error for the trial court to admit evidence concerning the commission of other crimes when there was no evidence to show that such other allegedly stolen property had in fact been stolen.

After receiving information on a shoplifting in progress at the Northside Mall in Dothan, Sergeant Harley Halstead, Jr. of the City Police Department noticed the defendant, Polly Draghton, and Charles Lee Freeman in and near an automobile in the mall parking area. Going to the car, Officer Halstead obtained a consent to search the automobile from Mr. Freeman. Hal-stead could see some “stuff” in the front seat over which someone had placed an old jacket. When Mr. Freeman removed the jacket, Officer Halstead observed the purse he had seen the defendant carrying to the car and two pair of blue jeans lying underneath the purse. The defendant was sitting on the passenger’s side of the front seat. The purse was between the defendant and Mr. Freeman, who was sitting in the driver’s seat. Inside the purse Halstead could see a pair of slacks. Defense counsel objected on the ground that the “evidence is outside the Indictment itself.”

The defendant said that she didn’t know to whom the purse belonged. Mrs. Dragh-ton, who was sitting in the back seat of the automobile, also denied ownership.

Patrolman Eugene Holland arrived at the scene after Sergeant Halstead. After Hal-stead had obtained the driver’s consent to search the automobile, Holland looked inside the car and noticed “a big pocketbook and some Levis jeans and a blouse and some other stuff.” The Assistant District Attorney then began questioning Patrolman Holland on the contents of the purse:

“Q. What did you find in the purse?
“MR. BRACKIN (Defense Counsel): We object.
“THE COURT: Yes. Sustained.
“MR. SORRELLS (District Attorney): May we speak to you on that question?
“THE COURT: Sure can.

(Thereupon, an off the Record discussion was held between the court and the Attorneys of Record. Upon completion of said discussion, the following proceedings were had, to-wit:)

“THE COURT: I overrule you. Go ahead.
“Q. Officer Holland, what if anything did you find in that purse?
“A. I believe there was three pair of Levis jeans, a lady’s blouse, a pair of children’s shoes, some belts in a package and some jewelry.”

When asked, the defendant stated that she did not know anything about any sales tickets or anything for those items in the purse. There was no form of identification in the purse.

Sergeant Robert Jenkins testified without objection that he looked in the purse and found:

“numerous articles of assorted jewelry, rings, bracelets, et cetera, earrings. Also, one package which contained three belts, red, green and brown in color. One pair of blue maternity pants. One maroon disco belt, one lady’s blouse, one lady’s maternity pants, two pair of Levis, one pair of brown children’s shoes.”

Tags on the jewelry identified it as coming from the store “All That Glitters”. Later the jewelry and the belts were identified as coming from “All That Glitters”.

Sherry DeBray was employed by “All That Glitters”. She identified the jewelry and the belts as having come from the store. After having been notified of the theft she found that these items were missing.

Charles Lee Freeman testified that on September 26,1979, he drove the defendant and another female to the Northside Mall. He remained outside while they went in. He stated that the defendant carried the purse into and out of the mall that day.

On her behalf the defendant called Ms. Draghton. She testified that she stole the jewelry from “All That Glitters” by herself and that her sister, the defendant, knew nothing about it. She admitted that the purse was hers and stated that her sister never carried the purse. She also admitted stealing some maternity pants which were found in the purse. She testified that it was her purse and that she “had nothing in it until [she] went to the Northside Mall.”

Relying heavily on Weatherspoon v. State, 36 Ala.App. 392, 56 So.2d 793 (1952), the defendant contends that the other items found in and under the purse were inadmissible because there was no evidence that these other items had been stolen.

In Weatherspoon, the defendant was charged with the larceny of a number of specifically described articles. These articles were found in a suitcase in a room occupied by the defendant and another man. When the defendant was arrested he was driving a borrowed automobile. One of the arresting officers testified that eighteen cigarette lighters were in the automobile when he arrested the defendant. “No evidence was presented at any time during the course of [the] trial tending in anywise to show that the cigarette lighters had been stolen.” Weatherspoon, 36 Ala.App. at 393, 56 So.2d at 794.

The court set out the legal principles involved:

“The general rule is that in a criminal prosecution proof which tends to show that the accused is guilty of other offenses, even though of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged unless the other offenses are connected with the offenses for which the accused is being tried. Wilkins v. State, 29 Ala.App. 349, 197 So. 75. “This general rule is subject to certain exceptions. .
“Without intimating that any of these exceptions might possibly be applicable to this case, no discussion or elaboration of them is here indicated, for none of them could be applicable because of the complete lack of evidence tending to show that the cigarette lighters had been stolen.”
Weatherspoon, 36 Ala.App. at 393, 56 So.2d at 794.

It is also a rule that proof of other offenses is admissible if it is a part of the res gestae of the main offense. Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961). “Evidence of defendant’s contemporaneous possession of other stolen goods is admissible on the question of intent and guilty knowledge.” Davis v. State, 39 Ala.App. 515, 516, 104 So.2d 762, 764 (1958). However, it is clearly inadmissible to show that other goods or items were found in the defendant’s possession or control in the absence of evidence tending to show that they too were stolen. Piano v. State, 161 Ala. 88, 49 So. 803 (1909); Padgett v. State, 44 Ala.App. 548, 216 So.2d 187 (1968).

Here there was no direct testimony that the items not listed in the indictment were stolen. However, “evidence of the similar transactions was admissible even though the proof shown was not sufficient to prove the similar offenses beyond a reasonable doubt.” McDonald v. State, 57 Ala.App. 529, 543, 329 So.2d 583, 594 (1975), cert. quashed, 295 Ala. 410, 329 So.2d 596 (1976).

“Before evidence of the commission of other crimes by accused is admitted, the trial court should satisfy itself that the evidence substantially establishes the other crimes, accused’s connection therewith, and their connection with the offense for which accused is being tried; and clear and convincing proof, or the making out of at least a prima facie case, has been required.
“Evidence of a vague and uncertain character, offered for the purpose of showing that accused has been guilty of similar offenses, should not be admitted under any pretense whatever, nor is mere proof of arrest or indictment or mere suspicion, or proof of a suspicious circumstance, sufficient. So, before guilty intent may be inferred from other similar crimes, they must be established by evidence which is legal and competent and plain, clear, and conclusive. However, although there is authority to the contrary, the evidence need not prove the commission of the other crimes beyond a reasonable doubt; it need only tend to prove accused guilty thereof.”
22A C.J.S. Criminal Law § 690 (1961).

We think that the evidence in this case tending to show the theft of the other items in the purse, although wholly circumstantial, is sufficient to show their stolen character.

The State’s evidence and the reasonable inferences therefrom show that the defendant carried the bag into and out of the mall; that the defendant made two trips to the mall; that she was seen carrying the same purse in which items that were proven to have been stolen were found; that some attempt was made to hide or conceal the purse as a jacket had been placed over it; and that the defendant denied any ownership of the purse or knowledge of its contents; and that the defendant did not have a sales slip for anything in the purse. This evidence was sufficient to show that the items were stolen for the purposes of admitting them into evidence even though this same evidence may not have been sufficient to prove the theft of these items beyond a reasonable doubt. Here we have more than simply the mere unexplained possession of property which, of itself, is insufficient to raise the presumption that the property was stolen. Character v. State, 51 Ala.App. 589, 593, 287 So.2d 916, cert. denied, 291 Ala. 775, 287 So.2d 919 (1973).

We have searched the record for error and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.