text:
    Edwin NELSON v. Delores Campbell NELSON.
    Civ. 2090, Civ. 2090-A.
    Court of Civil Appeals of Alabama.
    March 19, 1980.
    Charles C. Partin of Stone & Partin, Bay Minette, for appellant.
    E. E. Ball of Owen & Ball, Bay Minette, for appellee.
   BRADLEY, Judge.

This is a consolidated appeal from the granting of a divorce and the denial of a subsequent Rule 60(b) ARCP motion seeking relief from that judgment. The appeal hinges on the propriety of rendering a judgment where counsel for defendant withdrew on the same day as the hearing and defendant states he had no prior notice of the withdrawal nor of the hearing. The appeal turns on whether defendant had notice. We reverse and remand.

The consolidated records reveal pertinent facts. Wife filed for divorce on April 9, 1979, and husband answered on April 14, 1979. Wife sought and was granted an ex parte restraining order on May 21, 1979. On Friday, August 31, 1979 counsel for defendant moved for withdrawal by mailing a motion to withdraw, stating no specific grounds, to the register’s office with a copy to defendant and opposing counsel. The motion was filed the next Tuesday, September 4, the day after Labor Day. The trial court heard the divorce matter on that Tuesday with plaintiff and her counsel present. The court rendered the judgment on September 6, and the register entered it the same day.

On October 9, 1979 defendant filed a 60(b) motion to- set aside the judgment, alleging inter alia: (1) he did not have notice of the hearing date; (2) he was aboard a shrimp boat in the gulf working at his usual occupation on September 4; (3) he did not receive his copy of the motion to withdraw on or before September 4 because of the Labor Day weekend and because of his work on the shrimp boat; and (4) he filed his 60(b) motion as soon as possible due to (a) notice of the judgment was sent to the wrong address and finally received by him on October 5, a Friday; and (b) he went to new counsel the next Monday, October 8, which was Columbus Day, so that the motion was filed on the next day, October 9, 1979.

The records do not reflect whether the hearing on September 4 was (a) a result of a motion for default; or (b) a result of a hearing pursuant to a trial calendar. This uncertainty need not be clarified before this court can act. In either event, the defendant alleges in his 60(b) motion that he did not receive notice of the hearing, and this allegation is not challenged in any way. Therefore, if the judgment were pursuant to a motion for default judgment, it is due to be reversed on authority of Cockrell v. World’s Finest Chocolate Co., Ala., 349 So.2d 1117 (1977) and Dial v. State, Ala.Civ.App., 374 So.2d 361 (1979). If the judgment were pursuant to a trial date, it is due to be reversed on authority of Knight v. Davis, Ala., 356 So.2d 156 (1978) and Dodds v. Boatner, Ala.Civ.App., 376 So.2d 1107 (1979).

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Reginal MEADE, alias v. STATE.
    8 Div. 258.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    William J. Underwood, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Violation of Alabama Uniform Controlled Substances Act; sentence: eleven years imprisonment and $10,500 fine.

During the afternoon of November 8, 1978, the appellant sold 110 milligrams (.00388 oz.) of cocaine to one James Cowson, a third party used on this occasion by the North Alabama Drug Unit to make such a purchase. The purchase was witnessed by Florence Police Officers Don Harmon and Randy Jones, both of whom were at the time assigned to the drug unit. The appellant was indicted during the November 1978 term of the grand jury and subsequently arrested on February 2, 1979. We pretermit further discussion of the facts as an issue concerning the prosecutor’s closing argument is dispositive of the cause.

Appellant contends that the trial court erred in denying his motion for a mistrial and/or a new trial based on certain comments of the prosecuting attorney during his closing argument. In pertinent part the questionable comments are as follows:

“MR. PATTON [Prosecuting Attorney]: I have been sitting here watching the defendant nod and I don’t know how he expects to defend himself.
“MR. UNDERWOOD: Objection, Your Honor. He’s not allowed to make any inferences as to what the defendant was doing or anything like that. I ask for a mistrial — that’s prejudicial error — he’s not suppose [sic] to do that.
“BY THE COURT: I’m going to sustain the objection, but I am going to overrule the motion for a mistrial.
“MR. UNDERWOOD: That’s not good tactics, Your Honor.
“MR. PATTON: You got an opportunity to observe him. He sat here for two days.
“MR. UNDERWOOD: Objection, Your Honor. He’s not allowed to make inferences that they should be observing on the manner or demeanor of the defendant.
“BY THE COURT: I’m gonna sustain the objection.
“MR. UNDERWOOD: Your Honor, would you tell the District Attorney not to go into something as tactless as this? “BY THE COURT: Let me say this to the District Attorney — let’s get on and confine your argument to the evidence on inferences from the evidence.” (Emphasis added.)

Appellant asserts that the above comments directly point out his failure to testify in contravention of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, § 6, Constitution of Alabama 1901, and § 12-21-220, Code of Ala.1975.

It is apparent that the first statement of the prosecuting attorney can only be construed as a direct comment on the failure of the appellant to testify. The second statement adds to the prejudicial quality of the first. Such amounts to reversible error unless the trial court takes proper action to eradicate its harmful effect. Whitt v. State, Ala., 370 So.2d 736 (1979).

In the instant case appellant’s counsel objected, and the trial court sustained. He then moved for a mistrial which the trial court overruled. The trial court, near the end of its oral charge, instructed the jury:

“. . . the fact that the defendant has not testified in this case is not to be considered by you as evidence against the defendant. Nor is it to be considered by you as an admission of guilt on the part of the defendant. . . . ”

The instruction was virtually identical to appellant’s refused requested charge except his was grammatically incorrect and thereby properly refused. However, as to the sufficiency of such charges, see Smith v. State, Ala.Cr.App., 370 So.2d 312, cert. denied, Ala., 370 So.2d 319 (1979). See also: Burson v. State, Ala.Cr.App., 373 So.2d 1239 (1979).

In Whitt, supra, at page 739, Justice Bloodworth stated:

“A good example of a prompt, appropriate, and vigorous instruction to the jury as to the impropriety of comments on the failure of the defendant to testify is found in the case of Troup v. State, 32 Ala.App. 309, 26 So.2d 611 (1946). There, then Judge Harwood wrote that the instructions were sufficient to remove any probability of prejudice to the defendant. “We do not suggest that a trial court’s instructions, in order to remove any possible prejudice from improper comments by the district attorney as to the failure of the defendant to take the witness stand, need be in the same verbiage as those in Troup v. State, supra. We will consider the circumstances of each case on its own, considering the type of remark, whether reply in kind or not, whether promptly objected to, and the appropriateness of the trial judge’s instructions.
“We suggest that, at a minimum, the trial judge must sustain the objection, and should then promptly and vigorously give appropriate instructions to the jury. Such instructions should include that such remarks are improper and to disregard them; that statements of counsel are not evidence; that under the law the defendant has the privilege to testify in his own behalf or not; that he cannot be compelled to testify against himself; and, that no presumption of guilt or inference of any kind should be drawn from his failure to testify. With appropriate instructions, we hold that the error of the prosecutor’s remarks will be sufficiently vitiated so that such error is harmless beyond a reasonable doubt. U. S. v. Brown, 546 F.2d 166 (5th Cir. 1977); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Beecher v. State, [294 Ala. 674, 320 So.2d 727] supra.”

Applying the above standards, we find:

(1) The trial court sustained the appellant’s objection; however,

(2) The court failed to promptly instruct the jury;

(3) The court failed to promptly instruct the jury that the comment was improper and to disregard it;

(4) The court failed to promptly instruct the jury that statements of counsel are not evidence and that the defendant has a privilege to testify in his own behalf or not and cannot be compelled to do so against himself; and

(5) The court failed to instruct the jury that no presumption of guilt or inference of any kind should be drawn from the failure of the defendant to testify.

Therefore, pursuant to the decision of the Alabama Supreme Court in Whitt, supra, this case must be reversed and remanded for a new trial.

For a collection of cases dealing with similar comments, see: Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972); Welch v. State, 38 Ala.App. 239, 81 So.2d 897 (1954), reversed, 263 Ala. 57, 81 So.2d 901 (1955); Everage v. State, 33 Ala.App. 291, 33 So.2d 23 (1947). For more recent cases discussing the subject, see: Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Yarber v. State, Ala., 375 So.2d 1231 (1979) wherein a general objection preserved the error; Fleenor v. State, Ala.Cr.App., 372 So.2d 902, cert. denied, Ala., 372 So.2d 904 (1979); Qualls v. State, Ala.Cr.App., 371 So.2d 949, cert. denied, Ala., 371 So.2d 951 (1979); Robinson v. State, Ala.Cr.App., 352 So.2d 11, cert. denied, Ala., 352 So.2d 15 (1977); Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43 (1975); and cases cited therein. Cf. Nix v. State, Ala.Cr.App., 370 So.2d 1115, cert. denied, Ala., 370 So.2d 1119 (1979) wherein the comment was held eradicable by the trial court’s actions.

We specifically note that § 12-21-220, Code of Ala.1975, sets forth an emphatic mandate:

“. . .If the district attorney makes any comment concerning the defendant’s failure to testify, a new trial must be granted on motion filed within 30 days from entry of the judgment.” (Emphasis added.)

Here, the trial court’s failure to take prompt remedial action as per Whitt, supra, requires reversal.

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., concurs in result only.


author: EMBRY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. In re Reginal MEADE, alias v. STATE.
    79-409.
    Supreme Court of Alabama.
    April 11, 1980.
   EMBRY, Justice.

WRIT DENIED.

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


author: TORBERT, Chief Justice.

text:
    Ex parte Reginal MEADE, alias. (Re: Reginal Meade, alias, v. State of Alabama).
    No. 79-479.
    Supreme Court of Alabama.
    June 20, 1980.
   TORBERT, Chief Justice.

WRIT DENIED.

FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.


author: CLARK, Retired Circuit Judge.

text:
    Edward Aaron LOWERY v. STATE.
    2 Div. 251.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.

      Robert E. Upchurch and Robert P. Up-church of Upchurch & Upchurch, Livingston, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

On an indictment charging murder in the first degree, appellant was convicted of manslaughter in the first degree and sentenced to imprisonment for ten years in accordance with the verdict of the jury.

Defendant and the alleged victim, Julie Vore, were not married, but their physical relationship had been as if they were for more than a year prior to her death. She was sixteen years of age; he was twenty-nine. They were the parents of a daughter born three weeks before who was with them at the time the mother was shot in an automobile while the three were returning through Sumter County, Alabama, to New Orleans where they lived, from a trip to Birmingham commenced the night before. Accompanying them all the way were an acquaintance, Tommy James, and his girl friend, Patricia Dellsperger. James was driving the automobile at the time and defendant, the purported owner, was also on the front seat. The victim, Patricia and the baby were on the rear seat. Patricia was sitting behind the driver; the victim was sitting behind appellant.

The only living witnesses to the killing testified on the trial. Tommy James testified on call of the State; Patricia Dellsper-ger testified on call of the defendant and was followed as a witness by defendant himself. The three were in general agreement that there were pleasant, as well as unpleasant, relations between defendant and Julie Vore on the trip to and from Birmingham and while they were in Birmingham on the intervening day, a Sunday, visiting friends and relatives of both defendant and James and exhibiting the baby to them. James testified to more fussing, which at times approached threats of physical violence, than did Patricia. All three testified that they indulged in controlled substances in going and returning. While in Birmingham defendant traded a pistol and received in exchange a pistol that, according to the undisputed evidence, he procured for Julie’s approaching birthday. As they left Birmingham, the pistol was a topic of conversation. Before reaching Sumter County, it was fired once out of the window of the traveling automobile by James and another time by defendant, each while the other was driving.

Appellant’s version as to what occurred was that as he was handling the pistol the baby in the back seat began to cry; that he requested its mother to hand the baby to him, which she did while cursing him. He then asked for the baby’s blanket so he could keep the baby warm, but not getting the blanket, he, while holding the pistol in his right hand, reached back to the rear seat with his right hand to pick up the baby’s blanket. He said:

“And, I told her about the blanket and I went to raise up and I reached over the seat with intentions of grabbing the blanket and she grabbed me and the gun went off. It was like — it don’t seem like two seconds.”

Patricia’s version was very similar to that of defendant. .She said she saw the victim put both of her hands upon defendant’s hand and that they were struggling at the time the pistol was fired.

The testimony of the witness James was to the effect that as he was driving the automobile, he was not paying close attention visually to the action as between defendant and Julie. However, he said that shortly before the shot the two were arguing as they had been and that defendant told “her if she didn’t be quiet, he was going to kill her.” This was denied by defendant; the testimony of Patricia corroborated his denial. The witnesses were in general agreement that immediately after the shot was fired great concern and sorrow were manifested by defendant. Julie was taken to the hospital at York and from there to a hospital in Meridian where she died.

Undisputed testimony shows that the victim died from the bullet of the weapon in the hand of defendant at the time it was fired; the bullet entering the victim’s head between the eyes. Expert testimony was to the effect that the muzzle of the pistol was within six or eight inches of the victim’s head at the time. Furthermore, an expert witness testified that after considerable testing of the particular pistol he found that it could hardly have been caused to fire by any usual force other than by pulling or squeezing the trigger; that the pistol would not fire while on safety or in a half-cocked position.

There may be an omission herefrom of some details that perhaps one or the other of the parties thinks should be included, but, as there is no express issue between the parties as to the sufficiency of the evidence to support the verdict, we deem the foregoing summary adequate for a consideration of the questions presented on appeal.

A major contention of appellant is as to “questions to Appellant’s witness, Patricia Dellsperger, and later, in questions to Appellant; the State, over the objection of Appellant’s attorneys, asked questions and elicited testimony to the effect that during the time that Julie Vore, the decedent, lived with appellant, she worked as a prostitute.” The reference to questions asked the witness, Patricia Dellsperger, shows the following:

“Q. You stayed home a lot. Do you know whether or not she was working the streets as a prostitute while she lived with Eddie? If you know.
“MR. UPCHURCH: I object to that, if Your Honor please. It’s nothing in the world but to prejudice the jury’s mind; it has nothing whatever to do with the homicide.
“THE COURT: Overruled.
“MR. UPCHURCH: And, we except.
“MR. WATKINS: (Continuing)
“Q. Do you know?
“A. Do I know that she was working on the streets?
“Q. Right. While she was living with Eddie.
“A. No, I don’t know.”

The reference to the questions asked defendant on cross-examination discloses the following:

“Q. Oh, I see. Now, isn’t it a fact, also, that while Julie lived with you she was working the streets and you were collecting the money for it?
“MR. UPCHURCH: I object to that, Your Honor. It’s got nothing to do with this case.
“MR. WATKINS: (Continuing)
“Q. Well, he talked about how much he loved her. I think if she was a prostitute working for him it would be admissible.
“THE COURT: Overruled.
“A. She was not a prostitute working— she was a prostitute before she knew me. I made her stop.
“Q. Oh, she has stopped from the time you first knew her and never worked it any more?
“A. No, sir.
“Q. Is that what you are testifying?
“A. No, sir.
“Q. What is your testimony?
“A. She committed acts of prostitution afterwards.
“Q. After she was living with you?
“A. Yes, sir.”

Both inquiries quoted above were made after defendant had defined the genuinely contested issue by contending that the death was accidental. Although neither party cites any exact precedent on the specific subject of the inquiry, and we have found none, we are not persuaded that it does not come within one of the “well-recognized exceptions” to the exclusionary rule as to other crimes or wrongful conduct, particularly evidence of motive for the commission of the crime, or that it is included within the exclusionary rule. According to Judge McElroy:

“The foregoing exclusionary rule does not work to exclude evidence of all prior crimes, only such as are offered to show the defendant’s bad character. If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than as tending to prove guilt via bad character, then proof of such act is admissible.”
Gamble, McElrov’s Alabama
Evidence. § 69.01(1) (1977)

Furthermore, there is little basis for any conclusion that the testimony elicited by the quoted interrogation was harmful to defendant or any more unfavorable than it was favorable to him. Patricia said she had no knowledge as to the matter. Defendant flatly denied any crime or misconduct by him as to the matter and asserted activity on the part of the victim that would have been prejudicial to her but not to him.

It should also be stated that evidence as to prostitution had already been injected into the case on the direct examination of Tommy James at a time before the only live issue between the parties was as to whether the killing was accidental, and at that time the court sustained the only objection made by defendant to the inquiry. In asking the witness as to his acquaintance with defendant and the victim when the three were living at the same residence in New Orleans when the victim was fourteen years old, the following occurred:

“Q. Were they living together as a man and a woman live together?
“A. Yes, sir.
“Q. At that time were they working, either one of them?
“A. Yes, sir.
“Q. What kind of work were they doing?
“A. Prostitution.
“Q. Prostitution? What was Mr. Lowery doing? What was his part in the prostitution?
“MR. UPCHURCH: Your Honor, please, I object to that. It has nothing in the world to do with this case.
“THE COURT: Sustained.”

We find no error prejudicial to defendant in any of the court’s rulings on the subject of prostitution.

The only other assertions of prejudicial error are as to the alleged refusal of three separate requested written charges.

None of the three charges, nor any of the written charges allegedly requested by defendant, were signed “given,” or “refused,” as required by Code of Alabama 1975, § 12-16-13. Each requested written charge has under the left margin thereof, typing as follows:

“GIVEN: _
“REFUSED: _”

It seems that there is a practice in some venues for like forms of written charges to be submitted to the trial judge and for the trial judge to indicate his action by a check mark after the word “GIVEN” or the word “REFUSED” without signing or writing thereon any part of his name. This was apparently the procedure in the instant case, and each of the three requested written charges asserted as error on appeal contains a check mark after the word “REFUSED.”

Appellee challenges the assertion of prejudicial error as to the charges on the ground that the failure of the trial judge to sign his name precluded a reversal for the alleged refusal thereof by the trial judge, as held again recently in Stoudemire v. State, Ala.Cr.App., 365 So.2d 376 (1978) and Maund v. State, Ala.Cr.App., 361 So.2d 1144 (1978). The record here indicates, though it does not conclusively show, that the trial judge had put a check mark after the word “REFUSED” before the conclusion of its oral charge. At that time, defendant promptly stated:

“Defense counsel objects to the refusal of the Court to give his written Charges.”

Whether under all the circumstances the matter under consideration comes fully within the inhibition of appellate review established in Stoudemire, supra, and Maund, supra, in previous cases, we need not now decide, by reason of our determination hereafter made as to the charges, and we feel that we should not attempt at this time to decide the particular issue raised by appellee in the absence of any response to it by appellant by a reply brief or otherwise. However, with due respect to all concerned, we do express disapproval of any method that may apparently violate positive requirements of § 12-16-13 of the Code.

All of the written charges requested by defendant are unnumbered. Neither the cited current Code section nor its predecessors contain a requirement that charges be numbered. Bearden v. LeMaster, 284 Ala. 588, 226 So.2d 647 (1969). Nevertheless, we invite attention to the desirability of a numbering or lettering of the written charges in the interest of a proper determination of the merits of requested charges and a more concise and understandable discussion of them in an opinion.

The first of the three unnumbered charges is as follows:

“The Court charges the Jury that the Defendant, Eddie Lowery, enters into this trial with the presumption of innocence, and this is a fact in this case, which must be considered with all the evidence and should not be disregarded.”

Appellant argues that the refusal of the identical charge was held to be reversible error in Chaney v. State, 178 Ala. 44, 59 So. 604 (1912). He is correct. However, in the light of the rationale of a strong dissenting opinion in Chaney in criticism of the use of “not to be disregarded,” the Supreme Court overruled the effect of Chaney in McClain v. State, 182 Ala. 67, 62 So. 241, 243 (1913). See Gordon v. State, 40 Ala.App. 214, 110 So.2d 329, 332 (1958). We do not find that it has ever been approved since.

Another of the unnumbered charges under consideration is a replica of Charge E in Haithcock v. State, 21 Ala.App. 367, 108 So. 401 (1926), wherein it was held that the refusal of the charge constituted reversible error. However, it was stated therein that the result was required because the “principles involved in this charge were not substantially given by the Court in either his oral charge or written charges given at the request of defendant.” They were “substantially given” in the oral charge in the instant case. Portions of the court’s oral charge as to the presumption of innocence of defendant and the burden of proof upon the State, were lengthy and comprehensive. Included were the following:

“. . .A defendant in a criminal case comes into court and they are presumed to be innocent until proven guilty beyond a reasonable doubt and to a moral certainty. . . . The presumption of innocence is something to be taken factually in favor of the defendant until the state introduces evidence that convinces each one of you of the guilt of the defendant beyond a reasonable doubt and to a moral certainty. . . . The State has—the state has the burden of proving that the defendant is guilty as charged, and the state must satisfy each one of you, before you can return a conviction against the defendant, that the defendant is guilty beyond a reasonable doubt and to a moral certainty.If, after considering all the evidence in this case, your minds are left in such a condition that you cannot say that you have an abiding conviction of the truth of the charge that defendant is guilty beyond a reasonable doubt and to a moral certainty, then it would be your duty to return a verdict finding the defendant not guilty and acquitting him. . . . ”

The third of the unnumbered charges is patterned after Charge 28 in Davis v. State, 8 Ala.App. 147, 62 So. 1027, cert. denied 184 Ala. 26, 63 So. 1010 (1913), wherein it was held that the charge was a good charge but that it was substantially covered by other written charges. With particular reference to the necessity for a conviction that the evidence of guilt must be “strong and cogent,” the court, in quoting written given charges that substantially covered the principles contained in Charge 28, did not include any charge wherein the words “strong and cogent” are found, from which it is clearly deducible, and we so hold, that words of equal meaning are of equal value to the party requesting the charge.

We find no error in the record prejudicial to the 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.

      . Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966).

      . “Code Commissioner’s Note. — This section is superseded by A.R.C.P., Rule 51, as to civil proceedings, but has been retained for possible applicability in criminal or probate proceedings.”


text:
    Billy HEMBREE, alias v. CITY OF BIRMINGHAM.
    6 Div. 69.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.

      Miles M. Huffstutler of Elledge, Huff-stutler & Smith, Birmingham, for appellant.
    W. O. MacMahon, III, Asst. City Atty., for appellee.
   BOOKOUT, Judge.

Violation of Birmingham City Ordinance 36-28 as amended (malicious injury to property); sentence: $500 fine, thirty days hard labor and court costs.

The appellant was tried and convicted on two separate charges of malicious injury to property; one against Richard Watkins which occurred on December 7, 1978, and the other against Kenneth Jones which occurred on December 9, 1978. In both cases the appellant was charged with shooting out the windows of the victims! vehicles which were parked at Watkins’ residence in Birmingham.

The appellant made no motion to exclude the City’s evidence, no request for the affirmative charge, and no motion, for a new trial challenging the sufficiency of the evidence. Consequently, a further recitation of the facts is unnecessary.

I

The appellant contends that the trial court erred in overruling his motion to dismiss the City’s case on the ground of a material variance between the complaints and proof. The appellant’s motion asserted only that the City’s complaints used the name of Billy Hembree, whereas his name was actually Billy Hembree, Jr. On appeal he has expanded that ground to complain that not only was the suffix Jr. omitted in the complaints, but his middle initial was likewise omitted and further that the complaints failed to allege that his name was “otherwise unknown.” The appellant further contends that since the City’s complaints were not filed in the circuit court until the day of trial he has not waived the right to raise the misnomer by his failure to file pleas in abatement.

The appellant’s oral motion in this regard was not made until after a plea to the merits, after seventeen witnesses had testified (consisting of 265 pages in the record), and not until after both the City and the appellant had rested their cases. The trial court’s ruling was, “Well, at this stage of the game, I’ll overrule.”

The defect complained of was not one that required the taking of testimony before being discovered by the appellant. Certainly he knew his own name and could have raised the issue prior to pleading to the merits of the case. After a plea to the merits, the appellant’s claim of misnomer comes too late. Wilson v. State, 251 Ala. 676, 39 So.2d 254 (1949); Ward v. State, 242 Ala. 307, 6 So.2d 394 (1942); Fibbs v. State, 52 Ala.App. 232, 291 So.2d 167 (1974); §§ 15-15-40, -41, Code of Ala.1975.

The only ground for dismissal raised in the trial court below was the absence of the suffix Jr., and we therefore will limit our discussion only to that ground raised in the trial court and ruled upon by the trial judge. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974). It has been held that the word “Junior” or “Jr.” are merely matters of description and are not part of a person’s legal name. An indictment omitting such a suffix is not subject to a plea of misnomer. Taylor v. State, 282 Ala. 567, 213 So.2d 566 (1968). As no error would result from the omission of the suffix “Jr.” in a felony indictment, certainly no error results from its omission in a complaint charging the mere violation of a municipal ordinance. See also: Murry v. State, Ala.Cr.App., 367 So.2d 985 (1979), cert. denied, Ala., 367 So.2d 989.

II

The appellant contends that the trial court erroneously limited his right to confront and cross-examine witnesses by placing a twenty minute limit on examination of each witness by the City and by the defense.

The trial court made its ruling after the City’s first witness testified for approximately two hours (according to the appellant), much of which was repetitious. Neither side exceeded the trial court’s time limitation, nor was the trial court compelled to enforce its ruling during the course of the trial.

The right of a defendant to confront and cross-examine witnesses is guaranteed by Article I, § 6, Constitution of Ala.1901, by § 12-21-137, Code of Ala.1975, and by the Sixth Amendment to the United States Constitution. Any limitation on that fundamental constitutional right will be closely scrutinized by the appellate courts. Ball v. State, Ala.Cr.App., 337 So.2d 31 (1976), cert. quashed, Ala., 337 So.2d 39. However, it has repeatedly been held that the latitude and extent of cross-examination is a matter within the sound discretion of the trial court and is reviewable on appeal only for prejudicial abuse. Turner v. State, 289 Ala. 97, 265 So.2d 883 (1972), and cases cited therein. On appeal the party claiming an abuse of such discretion bears the burden of persuasion. Connell v. State, 294 Ala. 477, 318 So.2d 710 (1974).

In the instant case the appellant has failed to show us a single instance where the trial court prevented him from continuing his cross-examination of a witness of any material point which he felt necessary for the presentation of his case. The appellant would have a stronger argument for reversal if the record disclosed any instance where the trial court enforced the twenty minute limitation to cut off his cross-examination of a witness. However, after the trial court’s limitation was announced, the record reflects a thorough and concise examination of each witness by both the City and the appellant. If anything, the ruling resulted in a more efficiently tried case and cut out much of the repetitious questioning of witnesses and repeating of their answers by counsel which is so prevalent in many records reviewed by this court. We, therefore, find no error in the trial court’s action to warrant a reversal on this ground.

III

The appellant argues that the trial court on two occasions erroneously excluded testimony which would have illustrated bias, prejudice or interest against him on behalf of the prosecution witnesses.

A

Counsel for appellant asserts that the trial court erroneously denied him the right to examine Billy Hembree, Sr., concerning the circumstances surrounding the loss of the witness’ hand and his testifying before the Bessemer Division Grand Jury. The record reflects the following concerning an offer of proof made by the appellant in camera:

“THE COURT: See if I’ve got these facts straight.
“You want to put this present witness on, Mr. Hembree, Sr., to show that his hand was shot off by a gun in July of ’78; that on December the—
“MR. HUFFSTUTLER: I want to also show that Mr. Hembree’s hand was shot on December [July] 23,1978. On July 22, 1978, the day before, Billy Hembree was involved in a fight with Ricky Watkins. Between July 23,1978, and until the time of the Grand‘Jury there had been threatening phone calls made by Ricky Watkins to Mrs. Hembree concerning the health and well-being and threats to do bodily harm against not only Mr. Hembree, Sr., but Billy Hembree, Jr. That on December 7, 1978, they went to testify. Mr. Hembree went and testified at the Grand Jury in Bessemer.
“THE COURT: Against—
“MR. HUFFSTUTLER: Against Randall Revis, who has been designated a cousin of Jamie Barrett, who has been designated as dating Mary Tunello at this time.
“Mr. Hembree also — and I think this will be admissible testimony. He’s going to testify to alibi to certain nights.
“THE COURT: The alibi is all right. Now, to strengthen what you say is material — which I don’t think it is — this guy Revis was over at the house of Watkins on one of these occasions. What day or night, do you remember?
“MR. HUFFSTUTLER: The 12th.
“THE COURT: Well, I sustain the objection. The City objects.
“MR. HUFFSTUTLER: I except.
“THE COURT: I think it’s too remote. Not only remote, it’s immaterial in my humble judgment.
“MR. HUFFSTUTLER: We would object on the grounds his testimony would show the bias and prejudice of any and all witnesses on the other side and an interest that they have in the case of doing whatever damage they can to Billy Hembree, Jr.
“MR. MAC MAHON: We object.
“THE COURT: I’m well aware that all appellate courts say bias and prejudice can come in, but there is a point at which it’s got to stop, and in my humble judgment-it’s got to stop here. We can’t get into the shooting of the father by someone else who at best is remotely mixed up with Watkins’ people. I sustain the objection.”

The appellant was apparently attempting to show that in July of 1978 his father’s hand was shot off, presumably by Randall Revis, a cousin of one Jamie Barrett who was dating Mary Tunello, a defense witness in the instant case who was formerly married to the appellant. The fact that the appellant’s father testified at a grand jury proceeding against Randall Revis would indicate some bias on the part of Revis against the appellant’s father, and vice ver-sa. However, Revis was never called as a witness to testify in the instant case. Normally a party shows the interest, bias or prejudice of a witness by eliciting testimony from him on cross-examination. Gamble, McElroy’s Alabama Evidence, § 149.01 (3d ed. 1977); Frazier v. State, Ala.Cr.App., 365 So.2d 339 (1978). From the record it appears that the appellant was attempting to show some bias on the part of witness Mary Tunello by connecting her in some manner with Randall Revis who held a grudge against appellant’s father. If that were the point the appellant was trying to make, it appears that he was attempting to show the bias of his own witness and was attempting to do so through a very remote means.

Regardless of the method employed to prove bias or prejudice of a witness, the testimony going to such proof must be material, relevant, and not remote to the issues presented. Otherwise, a trial court is not in error in exercising its discretion to exclude such evidence. Gamble, § 21.01(1)(2), supra; Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216 (1923); Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396 (1948). In the instant case the inferences to be drawn from the proffered testimony were too speculative as to illustrate a reasonable connection between that testimony and a legitimate purpose for which it could be introduced. The burden was on the appellant to make clear to the trial court and to this court on appeal exactly how the proffered testimony would show a bias, interest or prejudice against him on the part of some specific witness. He has failed to do so.

B

The appellant’s next assertion concerns itself with the trial court’s prior ruling favorable to him whereby police officer J. D. Jones was allowed to testify as to the arrests of two other individuals connected with the December 12 shooting incident for which the appellant was charged and tried, but acquitted. That testimony was initially received over the City’s objection that it was hearsay. Shortly thereafter the trial court reversed its ruling and instructed the jury to disregard the testimony.

The appellant did not object to the trial court’s reversal of its initial ruling. Consequently, that ruling is not presented for review. Scruggs v. State, Ala.Cr.App., 359 So.2d 836, cert. denied, Ala., 359 So.2d 843 (1978); Pugh v. State, Ala.Cr.App., 355 So.2d 386, cert. denied, Ala., 355 So.2d 392 (1977).

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Michael SMOOT v. STATE.
    6 Div. 165.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.

      David Chip, Schwartz, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment charging murder in the first degree. He was convicted of manslaughter in the first degree and the jury fixed his punishment at imprisonment in the penitentiary for ten years. Prior to trial appellant was found to be indigent and counsel was appointed to represent him. At arraignment, in the presence of appointed counsel, appellant pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on appeal.

At the close of the State’s case in chief appellant moved to exclude the State’s evidence on the ground of insufficient evidence to indicate appellate was guilty of the charged crime. This motion was overruled. This action by the trial court púts us to a recital of the evidence.

On and prior to December 24, 1978, the victim, Samuel Hill, age 67, owned and operated the Pine Valley Recreational Center in the Trussville Community of Jefferson County, Alabama. He had operated this facility for about 18 to 20 years. He had a beer license but there was some testimony that he sold other alcoholic beverages. Some witnesses denied this and stated the victim sold no alcoholic beverages except beer. The victim opened the Recreational Center Sunday, December 24,1978, between 8:30 and 9:00 a. m. and shortly thereafter appellant entered the Center and ordered three beers and the victim replied, “I don’t have time right now.” Appellant said, “I don’t give a damn if you don’t sell them to me.” Following this exchange a fight ensued between appellant and the victim in which the victim received a fractured skull and a knife wound in his back which penetrated his lungs. He died Christmas night in a local hospital.

At approximately nine o’clock on the morning of December 24, 1978, Fred Paul went to the Recreation Center to buy a package of cigarettes. As he approached the Center he saw someone dragging something across the field from the Center toward a woody area and he hollered at this person to stop. This person dropped what he was dragging and ran from the scene. At this time Fred Paul saw a truck driving on the dirt road near the gate leading into the premises of the Center and he stopped it. The truck driver, Laval Smith, and Paul walked to the place where the object was dropped and they found the victim with his pants pulled down to his shoes. In response to a question as to what had happened the victim mumbled, “The Smoot boy.” The victim was not able to get up and both Paul and Smith helped him to his feet. While Paul assisted the victim to a nearby house Smith got in his truck and drove to his father’s home to call the police and ambulance. When the police and ambulance arrived the victim was taken to a local hospital where he received emergency treatment but died the following night.

Both Paul and Smith observed a small gun, a green knit cap, a comb, and shoes lying on the ground near the steps of the house where they carried the victim.

Later that morning, Deputy Sheriff George Knight, evidence technician for the Jefferson County Sheriff’s Department, examined the crime scene and made photographs of the scene. He found 171 feet and 4 inches of drag marks leading from the house. On the steps of the house and the surrounding area he observed red spots that appeared to be blood. Near the steps of the Center he found a toboggan (knit cap) and a pair of tennis shoes.

Appellant testified that when he left home that morning he was wearing a pair of beige pants, tennis shoes and a green toboggan cap. He further stated that during the fight the victim fell out the door of the Center and struck his head on a brick. He denied that he dragged the victim after the fight but testified that he ran after he stabbed the victim.

After the fight appellant went home and changed clothes and started to walk to Samuel “Butch” Collins’ house. He met Collins driving his car. Appellant and Collins had a conversation in which appellant stated that he needed some money and that he had “messed up.” Collins carried appellant to his parents’ home. Appellant told his parents about his encounter with the victim and that during the fight he stabbed the victim in the back with a fishing knife which he carried in a sheath.

The officers went to appellant’s home and his father told him to go with the officers. He was taken to the precinct station where he was interrogated. The interrogating officer learned that he was 17 years of age. He told appellant he could not take a statement from him as he was a juvenile.

At a preliminary hearing appellant was bound over to the Grand Jury under $100,-000.00 bond. The Grand Jury indicted him for murder in the first degree. His bond was subsequently reduced to $50,000.00.

When his case was called for trial appellant filed an application for Youthful Offender treatment. His application was referred to a Probation Officer for investigation and report. After the investigative report was filed the trial judge denied the application for Youthful Offender status.

An autopsy was performed on the body of the deceased by Jay Glass, Chief Medical Investigator of the Jefferson County Coroner Medical Examiner’s Office, on December 26, 1978. The County Coroner was present during the autopsy. During the course of the autopsy Mr. Glass found several abrasions and lacerations on the head and face which were caused by a blunt object. He also found a stab wound in the back which penetrated the chest cavity and the lung. He testified that the cause of death was due to blunt force trauma and a stab wound in the back which entered the lung.

Dr. Richard Bruhn, a practicing neurosurgeon, testified in behalf of appellant. He performed an operation on the victim for the injuries resulting from the trauma to the head. He did not examine the stab wound on the victim’s back, nor the injured lung. Yet he stated that in his opinion the stab wound alone would not have proved fatal. He further stated that in his opinion a person receiving injuries like those sustained by the victim would probably have been rendered unconscious immediately, possibly regaining consciousness later on.

We have set forth as much of the testimony as we deem necessary for a resolution of the issues presented on this appeal.

Appellant contends that the trial court committed reversible error in permitting Jay Glass, a Medical Examiner, to render an opinion as to the cause of death. He asserts that only a duly trained and licensed Medical Doctor is qualified to give an opinion as to the cause of death. We do not agree.

Mr. Glass testified as to his education, background and qualifications. His testimony as set out in the record appears as follows:

“I’m employed by the Jefferson County Coroner Medical Examiner’s Office, of the Chief Medical Investigator.
“Q. How long have you been with the Coroner’s office here in Jefferson County?
“A. Approximately five years.
“Q. All right. Have you received any special training in order to fulfill your duties with the County Coroner’s Office?
“A. I have.
“Q. What type of training is that, please, sir?
“A. From February of 1968 until February of 1970 while in the United States Air Force, I was a member of a team which investigated the medical aspects of fatal military aircraft accidents in the southern California and Nevada military districts.
“From October of 1971 until August of 1972 I was employed as a medical investigator for the office of the Medical Examiner of Suffolk County, New York. While there I received training in forensic science to include assisting in the performance of over 400 medical-legal autopsies and crime scene investigation.
“From September 1972 until August 1974 I was a student in the pathologist assistant training program at the University of Alabama in Birmingham and VA Hospital here, where I received intensive training in the science of pathology and other allied medical sciences.
“I was certified as a pathologist assistant in August of 1974.
“I received my Bachelor of Science Degree from UAB in December of 1974.
“I received my Master of Science Degree from UAB in June of 1979.
“I’m a member of the American Association of Pathologist Assistants. I’m a member of the Southern Association of Forensic Scientists. I’m a member of the Aerospace Medical Association.
“I’m a former consultant of Forensic Pathology to the State Department of Forensic Sciences.
“I’m the co-author of several scientific papers presented at meetings of the Southern Association of Forensic Scientists and the American Academy of Forensic Scientists.
“I’m a part-time instructor at Jefferson State Junior College where I teach courses in medical-legal investigation of death for police officers, and a course in pathology.
“I have either performed or assisted in the performance of approximately 2,500 autopsies, the majority of which have been medical-legal in nature.
“Q. What are the duties of a pathologist assistant here in the Jefferson County Coroner’s office?
“A. Perform medical-legal autopsies.”

It is well settled law that if a witness’ knowledge extends beyond or supersedes that of an ordinary witness, as determined by the trial judge, the witness can become an expert. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327; Hoback v. State, Ala.Cr.App., 338 So.2d 439, certiorari denied, Ala., 338 So.2d 444. Ala.Dig.Key No. 478(1).

It cannot be validly contended that Mr. Glass did not qualify as an expért witness. The trial court did not abuse its discretion in allowing him to testify as to the cause of death in this case.

Appellant next asserts that the trial court was in error in permitting witness Samuel “Butch” Collins to testify as .to his conversation with appellant immediately after the affray wherein appellant stated that he needed money and that he had messed up. He contends this testimony violated the rule against hearsay. The record reflects that appellant made only an objection without specifying a single ground. He said only, “I object.” Such an objection is not sufficient to place the trial court in error for overruling the objection. Langford v. State, 54 Ala.App. 659, 312 So.2d 65.

The rule is stated to be that the acts, declarations and demeanor of an accused before or after the offense whether a part of the res gestae or not are admissible against him, but unless a part of the res gestae are not admissible for him. Espey v. State, 270 Ala. 669, 120 So.2d 904; Rogers v. State, Ala.Cr.App., 365 So.2d 322, writ denied, Ala., 365 So.2d 334.

There was no error in denying appellant Youthful Offender treatment. The trial court referred the application for Youthful Offender status to a Probation Officer for investigation. When the report was filed the Court denied the application. The Court is not required to state his reasons for denying the application. Absent an abuse of discretion the trial court’s decision will not be disturbed. We find no abuse of discretion in denying Youthful Offender status. Morgan v. State, Ala.Cr.App., 363 So.2d 1013; McClendon v. State, Ala.Cr.App., 341 So.2d 174; Clemmons v. State, 294 Ala. 746, 321 So.2d 238.

We find no error on the part of the trial court in permitting State witnesses Fred Paul and Laval Smith to testify that when they reached the prostrate victim lying in the field he told them “The Smoot boy” was the person who “did this to me.” Such statement was admissible as part of the res gestae. Williams v. State, 291 Ala. 213, 279 So.2d 478.

“For a statement to be admissible as part of the res gestae exception to the hearsay rule, it must be incident to what was done, as shedding light on the main fact.” Williams, supra, and cases there cited.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Leslie JAMES, alias v. STATE.
    6 Div. 228.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Robert W. Gwin, Jr., Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The indictment charged Leslie James, alias, with the first degree burglary of the dwelling house of Melody Putman, who was lodged therein on the night of June 12-13, 1979. The jury found the appellant “guilty as charged” in the indictment, and the trial court set sentence at twenty years imprisonment in the penitentiary.

Leonard M. Robbins, a Birmingham evidence technician officer, stated that he went to Apartment B-2 at 2310 Highland Avenue in Birmingham, Alabama, on the early morning of June 13, 1979. He made four fingerprint lifts from an aluminum screen on a bedroom window, two from the outside and two from the inside. He made three fingerprint lifts from the window frame. These lifts were delivered by Robbins to Ms. Sandra Triplett, a senior fingerprint technician at the Identification Bureau of the City of Birmingham.

On cross-examination Sergeant Robbins stated that he arrived at the residence about 8:33 in the morning and made fingerprint lifts. He stated that a window and screen in the bedroom were partly open.

Ms. Melody Putman stated she was employed in the Special Studies Section of the University of Alabama, at Birmingham, and resided in Apartment B-2 at 2310 Highland Avenue on June 12-13, 1979. She stated that her apartment was on the ground floor and she had burglar bars on one bedroom window, but the other window led to a courtyard and did not have burglar bars. Ms. Putman indicated that she retired around 10:30 on the evening of June 12, 1979, at her apartment, and was awakened about 2:30 the next morning by a noise at her window. She stated that the window and screen were closed when she retired. She said she heard a crunching sound of some leaves just outside her window and called out, “Who’s out there, go away from here.” Suddenly a black male stuck his head inside the window and she exclaimed to him, “Get out.” He climbed inside and seized her. She stated that she kicked her assailant in the groin area and managed to free herself. She ran from the bedroom into the living room area. The black male pursued her, grasped at her a second time, but she had managed to open the door into the front stairwell. She stated that she scratched and struck the male in the face, then screamed and managed to fall outside the door at the bottom of the stairwell. Ms. Putman testified that she recalled that a Birmingham police officer, Gary Childs, lived upstairs. She screamed and ran up the stairs toward his apartment. As she pounded on Childs’ door, the door suddenly opened, Childs pushed her inside his apartment and began to pursue the black male.

Ms. Putman described her assailant as . being a young, slender black male in his early twenties with short hair, a little nappy beard, and wearing a short sleeved tan sweater or shirt. She stated that her assailant was slightly taller than herself, and that she was five feet, five inches tall. Ms. Putman identified photographs of the bedroom window through which her assailant had appeared.

Ms. Putman indicated that she had not given anyone permission to enter her apartment at night. She stated that the incident occurred between 2:30 and 2:45 on the early morning of June 13, 1979.

On cross-examination Ms. Putman indicated that the bedroom window led into a courtyard outside her apartment near an alleyway. She stated there was a large street light on Highland Avenue which shone down the alleyway. Ms. Putman indicated that she could not positively identify her assailant.

Birmingham City Policeman Gary R. Childs testified he lived at Apartment B-8, a second floor apartment at 2310 Highland Avenue in Birmingham. He stated that he had a neighbor, Ms. Melody Putman, who lived in an apartment on the first floor. He stated that he had just gotten off duty and had come to his apartment shortly after 2:00 on the morning of June 13,1979. Officer Childs stated he had just hung his gun belt and .38 Smith and Wesson revolver on a coatrack just inside the door, and had lain across the bed, partly dressed, when he heard some screams and his name being called. He stated he looked down the stairs and saw Ms. Putman fall out into the floor at the base of the stairs from her living room door. She screamed and called to him. Childs stated he reached inside his door for his revolver, and at that time Ms. Putman was coming up the stairs and at his door. He stated he pushed her inside his apartment door and yelled to the black male, who was then pursuing her, to halt. He stated the black male ran back down the stairs and he pursued him through the doorway and out into the courtyard. He stated that he fired once, but the screen door struck his hand, causing him to miss the assailant. Childs chased him to the courtyard, then to the driveway between the apartments and yelled to him to halt a second and third time. When he did not, the assailant crossed under the street light at the bottom of the driveway and he fired at him twice with his revolver. He heard the assailant yell and then saw him fall.

Childs stated that he went to the area where he had seen the assailant fall, but did not find him. He then returned to his apartment and telephoned Police Headquarters for assistance. He then gave a description on his walkie-talkie radio, stating the assailant was a young black male about five feet, eight inches tall, weighing 140 pounds, medium build, short hair, and wearing a beige and tan shirt or sweater and dark trousers. Childs stated that Ms. Putman remained at his apartment until some officers arrived to investigate. The following morning they went to Ms. Putman’s apartment and found a brownish colored plastic button with two holes. He said it was elliptical in shape and was found on the living room floor. Officer Childs placed the button in an envelope and identified same as State’s Exhibit 11 at trial.

That same morning, about 7:45, Officer Childs indicated that some paramedics from the Fire Department and several officers from the South Precinct of the Birmingham Police Department came by and told him they had found a suspect on the porch of a house a few doors away. Officer Childs then walked over, about seventy-five yards away, where he observed the appellant, Leslie James, seated on the porch. He was being administered to by the paramedics who were present. Childs stated that the paramedics were administering to a gunshot wound. He stated that the appellant was wearing a beige or tan shirt or sweater and dark trousers. The shirt worn by appellant was taken by the officers and marked for identification. It was introduced at trial as Exhibit 8. The shirt had two buttons, and a third was missing, but the buttons were of the same smoky gray or tan color and elliptical in shape, with two holes, as was the button found on the floor of Ms. Putman’s apartment.

On cross-examination Officer Childs stated that the apartment where the appellant was found by the officers was about seventy-five yards down Highland Avenue from his own, and it was the residence of Mr. and Mrs. George Coffman. Officer Childs stated that he had just retired, having gotten off duty, when he heard the screams of his neighbor, Ms. Putman, underneath his apartment. He opened his door and looked down the stairway in time to see Ms. Put-man fall from her front door. A black male was behind her trying to grab her. It was at this point that he reached inside his apartment for his service revolver. Officer Childs stated that he wore contact lenses, but did not have them in place when the incident occurred. He stated that John Ca-roll High School was just across the street from the apartment building where he resided. He indicated that he saw blood on the person of the appellant and on the porch at 2485 Highland Avenue, the Coff-mans’ apartment. Officer Childs stated that he talked with Mr. Coffman, together with other officers that morning, and that he did state to the officers, “This is the man I shot last night.” Officer Childs stated that it all happened very fast, and that he only saw the appellant for just a few seconds and did not have his contact lenses on.

On redirect-examination, Officer Childs stated that the blood he observed on the person of the appellant was between his neck and mid torso on the front side.

Birmingham Police Patrolman Jack T. Brand stated that he worked in the fingerprint department of the Birmingham City Jail. He identified as Exhibit 12 a set of fingerprints which he made of the appellant on June 13, 1979.

Ms. Sandra Triplett testified that she was a senior fingerprint technician with the Bureau of Identification of the Birmingham Police Department on June 13, 1979. She stated that after her formal education she. had worked with the F.B.I. in Washington before returning to Birmingham as a fingerprint expert. Ms. Triplett stated that she examined State’s Exhibits 1-7, which were some latent print lifts delivered to her on June 14, 1979. She stated they were made from an apartment window at 2310 Highland Avenue, Birmingham, and that she compared these with State’s Exhibit 12, which had been identified to her as the prints of the appellant. She stated that State’s Exhibits 1 and 2 were negative when compared to Exhibit 12, and that Exhibit 3 did not provide enough data for comparison.

Ms. Triplett stated that as to State’s Exhibit 4, she found 30 points for comparison and identified this print as being the No. 2 finger, or right index finger, of the appellant. State’s Exhibit 5 contained two fingerprints of the appellant, which -she identified as the 7th and 8th fingers of State’s Exhibit 12, and that finger No. 7 of Exhibit 12 had 18 points of identification. Finger No. 8, which is the left middle finger, had 14 points of identification.

Ms. Triplett stated that State’s Exhibit 7 did not match any of the prints on State’s Exhibit 12. She then indicated that she was able to obtain three positive fingerprint identifications which contain sufficient points for her to determine that the prints brought to her from the apartment window matched the prints of the appellant, which were Exhibit 12.

Mr. George Coffman stated that he lived at 2485 Eleventh Avenue South, Apartment l, in Birmingham, with his wife, on June 12-13, 1979. He stated that on the early morning of June 13, his wife noticed their cat making a noise because of some disturbance on the front porch. She looked through the window and saw a man lying on the porch. Mr. Coffman then looked out and saw a black male, dressed in a brown and tan “T” shirt and blue jeans. The “T” shirt had blood on it. He stated that he asked the man if he could assist him, and the appellant replied, “Call a doctor.” He immediately telephoned the University of Alabama Medical Center and told them that a victim of a gunshot wound was lying on his front porch. Mr. Coffman stated that his apartment was just off Highland Avenue, about seventy-five yards from the apartment building where Ms. Putman and Officer Childs resided. He stated that he noticed blood on the person and shirt of the appellant, and that State’s Exhibit 8, the appellant’s shirt, appeared to be the same one which he saw on the appellant the morning of June 13, 1979, at about 7:00 a. m.

On cross-examination Mr. Coffman stated that Officer Childs came over with other officers that morning. He said that Officer Childs stated the man looked like the one he shot the night before after he broke into the apartment house where he resided.

The appellant did not take the stand and testify, nor did he present any evidence in his behalf at trial.

There were no objections to the closing argument of the attorneys, nor were there any exceptions reserved to the oral charge of the court.

The trial court gave seven written charges, which were requested by appellant’s counsel.

I '

The appellant questioned the fingerprint identifications made by Birmingham Senior Evidence Technician Sandra Triplett.

Ms. Triplett testified that she received the latent prints of the appellant the day after the break-in and determined that 3 of the fingerprints from the group of 7 brought to her from the apartment window screen and window frame matched the latent prints of the appellant. Ms. Triplett indicated that she was able to obtain 80 points of identification on 1 print and 18 points and 14 points of identification on 2 others. This testimony was properly admitted by the trial court for consideration by the jury, together with all other circumstances on the question of the appellant’s guilt. Little v. State, Ala.Cr.App., 357 So.2d 379 (1978); Cummings v. State, Ala.Cr.App., 356 So.2d 779 (1978); and Scruggs v. State, Ala.Cr.App., 359 So.2d 836, cert. denied, Ala., 359 So.2d 843 (1978).

We have carefully examined this record and have determined from all the circumstances established by the evidence that the State of Alabama properly presented a prima facie case of first degree burglary. Whitson v. State, Ala.Cr.App., 377 So.2d 1108, cert. denied, Ala., 377 So.2d 1111 (1979).

This record is free of error and the judgment is therefore

AFFIRMED.

All the Judges concur.


text:
    Phillip HOPE v. STATE.
    7 Div. 718.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    J. Louis Wilkinson, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Phillip Hope was indicted for the unlawful possession of Marijuana, contrary to the Alabama Uniform .Controlled Substances Act (Act 1407, Acts of Alabama 1971, Regular Session), which possession was subsequent to a prior conviction of the appellant, also the possession of Marijuana, contrary to said act. The jury found the appellant “guilty as charged in the indictment” and the trial court set sentence at twelve years imprisonment in the penitentiary.

The facts in this cause are not in dispute.

Tom Barnes, investigator for the Shelby Sheriff’s Department, testified that, on June 7, 1979, while on duty in the jail, he conducted a search of the jail, together with other deputies, for any drugs or narcotics. During the course of this search, various inmates were brought into the day room and were patted down and searched. A packet of Red Man chewing tobacco was found inside the shorts of the appellant while he was being patted down. This tobacco packet contained 4.4 grams of Marijuana and thirty-five cigarette papers. A proper chain of custody was laid from Investigator Barnes to Deputy Sheriff Pratt to Mrs. Mary Alice Rhodes, an analysis chemist for the Department of Forensic Sciences. Mrs. Rhodes identified the plant material contained in the Red Man tobacco pouch as Marijuana.

The appellant’s motion to exclude and request for the affirmative charge were overruled. The appellant did not testify at trial.

We find in the record the following objection and ruling on the State’s tender of Exhibit One, which was a trial docket sheet from a prior trial conducted in the Circuit Court of Shelby County wherein the appellant entered a plea of guilty to a prior charge of possession of Marijuana for personal use on March 31, 1978, and for which the appellant received a three-year sentence. This sentence was changed to five years probation upon request of counsel. We find the following entry on Record page 21 — A:

“(WHEREUPON, here followed opening statement by Hon. Patricia M. Smith, on behalf of the State of Alabama; followed by Hon. J. Louie Wilkinson, on behalf of the Defendant, Phillip Hope. There were no objections or exceptions taken to the opening statements of counsel; after which, the case proceeded to trial as follows:)
“THE COURT: For the record, the Court changes its ruling to not exclude Mr. Barnes from the courtroom and he is under the Rule just as any other witness that may testify in this case is under the Rule.
“MS. SMITH: Please mark this as State’s Exhibit One.
“(WHEREUPON, State’s Exhibit One so marked by the Court Reporter.)
“MS. SMITH: Judge, we would move to have State’s Exhibit Number One received into evidence.
“(WHEREUPON, the above mentioned State’s Exhibit Number One, having been marked by the Court Reporter as an exhibit, was objected to by Counsel for the Defendant as follows:)
“MR. WILKINSON: We do object to the exhibit being handed to the witness while he is testifying.
“(WHEREUPON, the above mentioned exhibit, Case Action Summary Sheets, marked by the Court Reporter as ‘State’s Exhibit Number One’ was received into evidence by the Court at this time, but was later excluded from the jury during their deliberations, by Motion of Defendant’s Counsel and, after the Court examined State’s Exhibit Number One, granted said Motion; and
“WHEREUPON, the above mentioned exhibit was filed as an exhibit in the Office of the Circuit Court Clerk of Shelby County, Alabama, on the 19th day of November, 1979, in accordance with the Alabama Rules of Criminal Procedure.)”

I

Appellant’s counsel asserts that reversible error occurred when the trial court admitted State’s Exhibit One before the jury had proof of appellant’s prior conviction of possession of Marijuana, which Exhibit is a xerox copy of the trial docket sheet as the same appears in the office of the circuit clerk of Shelby County, Alabama.

Appellant’s argument is based on a line of cases which holds that the proper procedure for proving a prior conviction is through the introduction of a certified copy of the minute entry, showing the prior conviction. Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975), and authorities therein cited.

In Palmer, supra, this Court cited with approval the following excerpt from Childers v. Holmes, 207 Ala. 382, 92 So. 615 (1922):

“. . . The defendants’ objection raised the question. They objected ‘because it was not the proper manner to prove a conviction.’ The proper manner was not by this witness but'by a certified copy of the record showing it, or by the oral testimony of the person convicted. The court erred in overruling that objection to the question. (Emphasis added, citations omitted.)”

The trial docket sheet is not a record, and a memorandum (the judge’s bench notes entered thereon by the judge) operated only as a directive to the circuit clerk as to what judgments and orders should be entered on the court’s records. Winn et al. v. McCraney et al., 156 Ala. 630, 46 So. 854 (1908); Calvert v. State, 26 Ala.App. 189, 155 So. 389 (1934); and Palmer v. State, supra.

II

The State of Alabama asserts that there was not a proper objection made at trial to the offer of proof concerning the prior conviction so that this matter is not properly before this Court on appeal.

We do not agree with this argument as it overlooks a long line of cases cited in Palmer v. State, supra, which provides that a general objection is sufficient to preserve for appellate review matters which are illegal or irrelevant on their face.

Moreover, since proper proof of the purported prior offense is a vital and material element of the indictment in this cause, such proper proof must be done through a properly certified minute entry of the prior conviction or by an admission of the appellant himself.

Since there was no admission by the appellant or concession by his counsel as to this point, this issue is properly preserved for appellate review.

For the error shown, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    James Thomas COFFMAN v. STATE.
    8 Div. 281.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.

      David L. Thomas, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Burglary, second degree; ten years.

The appellant, an indigent, was indicted by the Madison County Grand Jury and charged with burglary in the second degree.

An application for youthful offender status was filed by appellant, but was denied by the trial court. At arraignment, defendant pleaded guilty to the charge in the indictment. He was sentenced to ten years in the penitentiary. The case was argued and submitted to this court.

I

Appellant’s only contention is that the plea of guilty was not voluntarily and intelligently made because appellant entered the plea relying on an assurance by his trial attorney that a jury trial would result in a ten-year sentence, but a guilty plea would result in a lesser sentence.

This contention that the appellant was motivated to plead guilty because of a lesser sentence is not well taken. The Supreme Court of the United States in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 1465, 25 L.Ed.2d 747, held that, if a plea of guilty is voluntarily and intelligently made, with competent counsel present, the plea is not invalid because it was motivated by a desire to avoid the death penalty and to obtain a lesser sentence.

II

Except for the affidavit by the appellant filed in a supplement to the record, the record submitted to this court contains nothing to substantiate appellant’s claim.

The record does contain a colloquy between the trial judge and the appellant; a “Waiver of Jury Trial” form; and “Court’s Exhibit A” [Ireland form], signed by appellant and by appellant’s counsel; the combination of which demonstrates a compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, that the plea of guilty was voluntarily and intelligently made.

Considering the facts in the record before this court, it is our judgment that the trial court did not commit error by accepting the appellant’s guilty plea. Therefore the judgment of conviction by the Madison Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Larry Gene KNIGHT v. STATE.
    8 Div. 284.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Dan Warnes, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., Montgomery, for appellee.
   CLARK, Retired Circuit Judge.

In accordance with the verdict of a jury and the only punishment prescribed by law, the trial court sentenced appellant to imprisonment for life for murder in the first degree of his ex-wife Vickie Dianne Mitchell.

The only issue expressly raised on appeal is as to the action of the trial court in overruling defendant’s objection to the introduction in evidence of a bloodstained shirt worn by deceased at the time she was killed by one of two or more bullets that struck her body from a pistol in the hand or hands of defendant. The following portion of the record includes all of the objections and rulings of the court on the subject:

“MR. STARNES: Judge, we’d like to offer State’s Exhibit No. 17 [the shirt or jersey involved].
“MR. WILKES: Objection. The chain of possession has not been shown on the clothing, that particular item or any other item of clothing.
“THE COURT: Overruled as to that.
“MR. WILKES: We except.
“MR. STARNES: That’s all.
“MR. WILKES: Not shown it is in the same . . . substantially the same condition it was in, anyway. We interpose another objection on that ground.
“THE COURT: Overruled the objection.
“MR. WILKES: We except.”

Appellant now states that the admission in evidence of the shirt was reversible error by reason of its “prejudicial irrelevancy that would inflame the minds of the jury.” It is readily observable that the position of appellant as to the evidence was not included in either ground of defendant’s objection to the evidence on the trial. A trial judge should not be put in error for overruling an objection to evidence on a ground stated on appeal that was not assigned to the objection made on the trial. Andrews v. State, Ala.Cr.App., 359 So.2d 1172 (1978); Stemple v. State, Ala.Cr.App., 352 So.2d 33 (1977); Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975); Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974).

In addition, we conclude that appellant is not correct in his present contention that the particular item of evidence was subject to the objection now made to it. Appellant relies upon Boyette v. State, 215 Ala. 472, 110 So. 812 (1926), and other cases, in which it was held that the clothing of a deceased in a homicide case should not have been admitted in evidence. In such cases, the clothing was not pierced by the instrument or agency of death, and it was held therein that it did not “tend to corroborate or disprove, illustrate or elucidate any other evidence.” In the instant case, wounds on the body were underneath the shirt at or about holes that had been made in the shirt. In Flannagin v. State, 48 Ala.App. 559, 266 So.2d 637 (1971), aff’d 289 Ala. 177, 266 So.2d 643 (1972), both courts on appeal expressly distinguished the case of Boyette v. State, supra, and like cases, from cases in which the clothing had been penetrated, as it was here, by a death-dealing bullet.

The undisputed evidence shows that defendant went to the home of his ex-wife and Tommy Mitchell, with whom she was then living as his wife, about 7:00 P.M., December 12,1978, and that while there the victim was killed by a .38 pistol in the hand or hands of defendant. The only persons at the house when defendant arrived were the victim, Tommy Mitchell, the defendant and defendant’s and the victim’s son, four years of age. Tommy Mitchell testified that he left the house promptly upon observing that defendant did not come peacefully. His testimony shed little light, if any, as to what occurred soon after defendant arrived at the house. The trial court ruled, after a hearing out of the presence of the jury, that the four-year-old boy could not qualify as a witness. This left defendant as the only witness to testify as to precisely what occurred. He said that he went to his ex-wife’s home, knocked on the door, that she threw the door wide open and said, “It’s Larry. Get a gun and shoot him.” He said he saw Tommy Mitchell in the house, that Tommy ran into a bedroom and that he then chased Tommy, but never found him. He testified that he did not have a gun on his person at that time, but that he went outside to his automobile and “got my gun.” He then returned to the house and then proceeded to take his little boy to his automobile; that his ex-wife was between them and the house while he and his little boy were going to the automobile. According to his further testimony, he opened the door and let his little boy in the automobile. His testimony continued as follows:

“Q. Then what happened?
“A. I got in the car and laid my gun on the seat, and when I reached up to crank the car Vickie pushed the door to and started running and hollering for Tommy to shoot me.
“Q. What was she saying when she was running?
“A. Shoot him.
“Q. Did she say it only once?
“A. No, sir, she kept repeating it.
“Q. Was she hollering this loudly?
“A. Yes, sir, she was screaming it.
“Q. In what direction was she going when she was hollering shoot him, shoot him, shoot him?
“A. She was going towards the house.
“Q. What, if anything, did you do?
“A. I pushed the door open and fell out of the car and pointed the gun at the only dark spot at the house, at the window, and I pulled the trigger.
“Q. When you fired what were you firing at?
“A. The window, the dark spot.
“Q. Then what happened?
“A. Vickie stopped hollering and she just fell.
“Q. Did you still have the gun in your hand?
“A. Yes, sir.
“Q. After you . . . immediately after you fired that shot at the window what did you do with the gun?
“A. I still had it. I just cocked the hammer again.
“Q. You cocked the hammer again. When you went over to her after she fell did you kneel down to her?
“A. Yes, sir, I squatted down.
“Q. And told her what you have told us you told her [that he was sorry and that he loved her]?
“A. Yes, sir.
“Q. Did you rise or commence to rise, get up?
“A. Yes, sir.
“Q. What, if anything, happened when you started to get up?
“A. The gun went off again.
“Q. What then did you do?
“A. I got in the car with my little boy and left.”

The defendant then testified that he then fled to Texas where he was afterwards arrested and returned to Alabama.

The evidence is sufficient to support the verdict. There is no contention to the contrary.

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.