text:
    Ola Mae Catherine HOLMES v. Durward E. HOLMES.
    Civ. 2938.
    Court of Civil Appeals of Alabama.
    Jan. 27, 1982.
    Marion F. Walker, Birmingham, for appellant.
    E. Ray Large, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

On May 5, 1981, the parties to this case were divorced. The trial court awarded the residence of the parties to the husband. The wife was awarded $3,000 as alimony in gross and the furniture was divided between the parties.

The wife appeals, contending that the trial court abused its discretion in failing to award her any interest in the residence. She also contends the trial court abused its discretion in awarding only $3,000 as alimony in gross and in failing to award any periodic alimony. We find no abuse of discretion and affirm.

The record, viewed with the attendant presumptions, reveals the following: The parties to this divorce action had been married approximately eight and one-half years. Both parties had been previously married. At the time of trial the husband was sixty-two years old and in good health. The wife was sixty and had some health problems. The husband was employed as a bus driver for Trailways, Inc., and had been so employed for thirty-eight years. Though the wife had been employed on a full-time basis when the parties married, at the time of the divorce the wife was working only on a part-time basis for minimum wage.

Except for a period of eleven months, the husband lived in the wife’s home in Birmingham from the time of the marriage until May, 1977. In May, 1977, the husband bought a home in Trussville, Alabama. Though the deed was in the name of both the husband and wife, the wife contributed nothing toward the purchase price. The Trussville home was purchased with proceeds from the sale of property the husband had owned prior to the marriage and the proceeds from the sale of property the husband had purchased after the marriage along with proceeds from a loan.

Both the division of property and the award and amount of periodic alimony and alimony in gross are matters within the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse of that discretion. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980); Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980); Weeks v. Weeks, 373 So.2d 848 (Ala.Civ.App.1979). After reviewing the record, this court concludes that no action taken by the trial court in the case before us constituted such an abuse of discretion as to require reversal.

We reach the conclusion that there was no abuse of discretion in failing to award the wife any share of the home after considering the length of the marriage, the fact that the husband’s funds were used to purchase the home and the fact that the wife already had a home in which she could live. Under the above circumstances it was not reversible error to award the home to the husband solely, even though it was the major asset of the marriage. See Roberts v. Roberts, 399 So.2d 316 (Ala.Civ.App.1981); Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

Likewise, there was no abuse of discretion in the trial court’s action regarding alimony. In determining the propriety and the amount of either periodic alimony or alimony in gross the trial court may properly consider the parties’ ages, sex, health, station in life, conduct relative to the cause of the divorce and the length of the marriage. King v. King, 367 So.2d 492 (Ala.Civ.App.1979); Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976). In the instant case the parties married at a relatively advanced age and remained married less than nine years. At the time of the marriage the husband was already well settled in his career. It is thus apparent that the wife had very little input of any nature in the advancement of the husband’s career and in the accumulation of assets by the husband. Additionally, there is no evidence that this marriage greatly increased the wife’s standard of living. Finally, though neither party was entirely blameless, there is evidence that the wife’s conduct was a major factor in the breakup of this marriage.

In view of the foregoing this court cannot conclude that the trial court erred in awarding the wife only $3,000 as alimony in gross and in failing to award any periodic alimony-

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Fernando BALL v. STATE.
    7 Div. 668.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 1979.
    Rehearing Denied Oct. 30, 1979.

      Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and sentenced to ten years in the penitentiary. At arraignment, in the presence of his retained counsel, he pleaded not guilty. After sentence was imposed he gave notice of appeal. The court determined that he was indigent and a free transcript was furnished him. Trial counsel was appointed to represent him on this appeal.

On the early morning of December 4, 1978, the Bonanza Steak House on Rainbow Drive in Gadsden, Alabama, was robbed by two black males. Mrs. Eloise McKee had been employed at the Steak House for about four years. Part of her duties were to open the place every morning and get things organized for business during the day. She drove her 1976 white Chrysler Newport car to work and arrived at the Steak House between 8:15 and 8:30 the morning of the robbery which was on a Monday. She unlocked the side door and turned off the burglar alarm system. When she entered, she placed her purse and coat on the counter and went to the office to check the list of employees who were scheduled to work that day. She made a pot of coffee and went to the rest room. After returning from the rest room she got the office key from her purse and unlocked the office door to check on any instructions that might have been left by the manager when he locked the business the night before. While she was in the office she heard a noise in the storage room located directly behind the office. As she emerged from the office she was confronted by a man wearing a stocking over his face who pointed a pistol in her face. Moments later another man came from the back and he, too, was wearing a stocking over his face.

These bandits told Mrs. McKee they wanted the money from the safe. She tried to convince the men the only money in the place was in the cash register but the man with the pistol told her to stop stalling and to open the safe. He shoved her back into the office with such force that she struck the filing cabinet, hurting her shoulder and arm. With the pistol still pointed at her head, she was again ordered to open the safe. Because of the pain in her shoulder and arm she had difficulty in working the combination to the safe. She worked with the combination the second time with the pistol still pointed at her head and finally got the safe open but was unable to pull the safe door open and she told the man with the pistol that he would have to pull on the door to the safe. The robber with the gun ordered her to lie on the floor and he reached over her and pulled the safe door open and got the money bags. Mrs. McKee was asked if the keys she had to open the office door were also the keys to her automobile. She told them the keys to her car were in her purse. One of the robbers went to the front and got her car keys and they walked her to the back and shoved her in the cooler and closed the door. She remained in the cooler until she was sure they had left the premises. She came out of the cooler and discovered the robbers had taken her car and left. She immediately notified the police department that she had just been robbed and her car stolen.

The police officers promptly responded to her call and she gave them a description of the bandits and a description of her car. She told the officers that the robbers had taken about $650.00 from the safe and she told the officers that the man with the gun was a “black male, 5 feet 3 inches, stocky build, black leather jacket, no shirt, dark pants and stocking over the face.” She stated the other robber was taller but she did not get a good look at him but stated he had a stocking over his face and was wearing dark clothes.

The victim of this robbery testified that the voice of the robber with the gun was familiar and she kept trying to place the name of the man with that voice. She finally identified the voice as that of Fernando Ball who had worked at the Bonanza for a short while some time in the past. She was called that night by one of the investigating officers who told her they had picked up one of the suspects and wanted her to view a lineup the next day. She was not given the name of the suspect before she viewed the lineup. There were five men in the lineup and they were viewed by the victim with and without stockings over their faces. She picked out the number 4 man from the left as appellant. A photograph of the lineup was taken and shown to the victim during the trial and she again identified the number 4 man as the appellant and the man who had robbed her at gunpoint on Monday morning, December 4, 1978. She also made a positive in-court identification of appellant.

The victim was questioned about the statement she gave the police. She stated that she remembered saying that the robber with the gun had on a dark jacket, not black or brown as the statement indicated. She also said the robber was approximately five feet, three inches to five feet, five inches.

Mrs. McKee further testified that she was told that Richard Elliott was the other suspect. In her report to the police she listed Elliott’s height as between six feet, three inches and six feet, five inches. She stated she had never seen any of the other individuals in the lineup previously.

John Russell Creel testified that he was the acting manager of the Bonanza restaurant that was robbed. He closed the restaurant on the night of December 3, 1978, and just before closing he placed about $650.00 in the safe and locked it. He further stated that at about 8:30 on Sunday night he received a telephone call concerning what time the restaurant would open the next morning. He did not recognize the voice of the caller but when he stated the time the cafe would open on the morning of December 4, the caller said, “Oh, wow,” and hung up.

Doris Huntley testified that appellant was her son — in—law and that she recalled the events of December 4, 1978. She stated appellant had been staying with her family for about two weeks prior to the robbery and he was unemployed at that time. She said she left for work at about 8:00 a. m. on December 4, and her husband, daughter, appellant and Richard Elliott were in the ear with her; that appellant and Elliott were in the back seat. She let appellant and Elliott out of the car near a place known as Merle Norman’s Cosmetics which was about three buildings from the Bonanza; that appellant said that he was going to a finance company located between Merle Norman’s and the Bonanza, where Elliott was to loan him some money. She described appellant as wearing blue jeans, jacket and tennis shoes. The last she saw of appellant and Elliott they were walking in the direction of Merle Norman’s Cosmetics and the time was 8:10 or 8:15 a. m. She did not know Elliott but appellant told her that “Richard” was coming to the house that morning to ride with them.

Doris Huntley’s husband, Jessie, testified to substantially the same facts as Doris except that he thought appellant was wearing a brown jacket and a brown shirt which had flowers on it.

Officer Harley Cutchens testified that, on December 4, 1978, he received a radio call that a robbery had occurred at the Bonanza restaurant on Rainbow Drive and he proceeded to investigate. He stated he received an all points bulletin calling for the arrest of two black males who were involved in the robbery. The robbers reportedly left in a 1976 white Dodge automobile. He and his partner, Sergeant Ballenger, turned right on 15th Street and saw a 1976 Dodge parked on the side of the road. He saw a young black male walking up the hill. He got out of the car and gave “foot pursuit” in the direction the naan was running. He said the fleeing man was Richard Elliott but the officer fell and lost sight of Elliott. Elliott made good his escape and at the time of appellant’s trial he had not been apprehended. The car was returned to the victim.

Officer Cutchens checked the crime scene and was able to lift two partial prints inside a file cabinet. These prints could not be identified because smoke had obliterated them. He dusted the inside of the abandoned car for fingerprints and obtained partial prints from the rearview mirror and from glass on the driver’s side, but they were not classifiable. He further testified that he knew Elliott “in passing” but did not know his name. He found a stocking in the car which contained hairs but the crime laboratory reported these hairs did not match the hair of appellant.

Harry Jackson testified that appellant was his brother-in-law and on the morning of December 4,1978, around 9:10 or 9:15, he saw him walking near the corner of Harvey and Riley Streets. He asked appellant to get in the car and go with him to a named place but appellant wanted to go by his mother’s house and get a suit, pants and shirt. While they were riding appellant pulled out $105.00 from his pocket. He was shown a jacket and stated appellant was wearing that type jacket when he picked him up.

Officer William A. O’Bryant testified that he participated in the investigation of the robbery of the Bonanza Steak House and got the details from Mrs. McKee. He identified a jacket shown him in court and stated that this jacket was turned over to the Police Department by appellant’s brother-in-law, Harry Jackson.

O’Bryant further testified that he received information from a confidential and reliable informer who had given him information in the past, upon which arrests were made and convictions obtained, that appellant was involved in the robbery of the Bonanza Steak House. He also talked to Doris Huntley, Jessie Huntley and Harry Jackson. Based upon all this information he arrested appellant at the Nancy Oden Gymnasium on the night after the robbery and transported him to jail. The next day he gave appellant the Miranda rights and warnings and appellant stated that he understood his rights, but he refused to sign a waiver of rights form. He did make an oral statement.

A voir dire hearing was held out of the presence and hearing of the jury. O’Bryant testified at this hearing that appellant was not threatened, coerced or promised anything, nor were any rewards offered him or other inducements held out to him to get him to make a statement. He further stated that appellant told him that he, Richard Elliott, and a man by the name of Darrell Craig, robbed the Bonanza restaurant. O’Bryant testified that he knew Darrell Craig, also known as Debbie Craig, was not living in the Gadsden area at the time of the robbery. He stopped the interrogation and made a telephone call to his informer to ascertain if Craig was back in town. He was told that Craig was living in Detroit and had been there for over a year. He returned to the interrogation room and imparted this information to appellant. Appellant then changed his story and told O’Bryant it wasn’t Craig with them at the time of the robbery but a man by the name of Randy McCloud who lived at 354 Starnes Park in East Gadsden. The officers went to this address and picked up Randy McCloud. He was brought to headquarters and interrogated. He denied any participation in the robbery. The officers got appellant from his cell and returned him to the interrogation room and told him they had placed Randy McCloud in jail. Appellant then said, “Turn him loose. He is not involved.” McCloud was then released.

Finally, appellant admitted that he and Richard Elliott were the only persons involved in the robbery but that he did not go any further than the salad bar. He stated he was to be the look-out man. He further stated that after the robbery they needed a getaway car because they had been dropped off down there by Mr. and Mrs. Huntley. He said on leaving the place Richard Elliott got Mrs. McKee’s car keys out of her purse at the cash register and they took off in her car. He also admitted that he called his brother-in-law, Harry Jackson, to pick him up.

On cross-examination he testified he had gotten a signed statement from Mr. and Mrs. Huntley and Harry Jackson before he arrested appellant. O’Bryant further said they found one stocking at the water fountain inside the restaurant.

Appellant testified at the voir dire hearing and said that Officer O’Bryant arrested him. He asked the officer what he was being arrested for and O’Bryant told him he was being charged with the Bonanza robbery and that he denied the charge; that he refused to sign any statement. He stated that Officer O’Bryant hit him on the side of his head with a broken off pool stick and he fell to the floor. He testified that the officer questioned him some more and wrote out a statement for him to sign, saying, “This is the way it is going to be and if you sign it involving Randy McCloud he would free me.” He refused to sign the statement. He denied that he was given his constitutional rights.

On cross-examination he testified that the money he had was his all along; that he borrowed the money from the boyfriend of Connie Jackson. He said the $105.00 was the money that Connie Jackson’s boyfriend owed him.

At the conclusion of the voir dire hearing the court overruled appellant’s motion to suppress the oral statement which he gave to Officer O’Bryant.

Jerry W. Alexander testified that he was a detective with the Gadsden Police Department and investigated the robbery at the Bonanza on December 4, 1978. He said he found a toboggan at the drinking fountain in the restaurant; that he interviewed appellant the day after the robbery and read him his constitutional rights; that the defendant made a statement but refused to sign anything. He further testified that appellant was not coerced, threatened, induced or promised any reward to get him to make a statement. He stated appellant implicated Richard Elliott, a third party and himself in the robbery. The third party was Randy McCloud.

On cross-examination this witness stated that appellant made the inculpatory statement before the lineup was conducted; that he prepared a report based upon the information given by the victim in which she described both bandits as five feet, three inches and five feet, eleven inches, respectively.

After the State rested appellant moved to exclude the evidence on various and sundry grounds. He contended the State failed to make out a prima facie case and that he was illegally arrested. He further contended that the identification was suggestive and that the confession was improperly admitted. The motion t<? exclude was overruled.

Appellant then testified before the jury. In sum, he admitted that he and Elliott rode with his father and mother-in-law on the morning of December 4, 1978. They got out of the car near the Merle Norman Cosmetics building and were going to the Finance America where Elliott was to borrow some money and loan him a sufficient amount to get his car out of the shop so that he could go to Atlanta. He and Elliott were standing near the finance company building waiting for it to open and a City squad car came up and the police told them the Bonanza had been robbed by two blacks and it wasn’t cool for them to be around there; that the officer’s statement scared them and they left walking. They walked across town and separated. Appellant then went to Gadsden High School. He ran into his brother-in-law, Harry Jackson, and got in the car with him. Jackson took him to his mother’s house and then to the west side as he needed to pick up some money a fellow owed him. He stated that he didn’t have the $105.00 when he got in Harry Jackson’s car. -He went to the Myrtlewood project and saw a man by the name of Afro White from whom he got $105.00. Included in this $105.00 were fives, tens and twenties, but this was not enough money to get his car out of the shop. He went to see some other friends to try to borrow some money and went to Harry Jackson’s place and Jackson informed him the police were looking for him and Elliott. He was arrested by the police and taken to the Police Department where he was interrogated by Officer O’Bryant. He denied that he was involved in the Bonanza robbery. He admitted being placed in a lineup with four other men and that he was told Mrs. McKee had identified him.

He further testified that he was wearing a brown jacket, a black T-shirt with his Zodiac sign on it, black hat, dark sunglasses and blue jeans. He said he was five feet, seven inches tall and weighed 153 pounds. He admitted knowing Mrs. McKee as he worked at the Bonanza about one month three years previously, but he had not seen her in three years.

On cross-examination he was asked where he got the $105.00 and he replied he got it from a relative by the name of Lawrence Ball. At this point he was impeached by his prior testimony that he had gotten the money from Afro White. He then went back to his previous statement that he got the $105.00 from Afro White. He was then impeached by his testimony given at the preliminary hearing wherein he testified that he got the $105.00 from a cousin of Richard Elliott but he did not know his name. Appellant’s testimony at the preliminary hearing was read to him and then he recanted his testimony and stated that Afro White gave him the $105.00. He was impeached again by his previous testimony that he got the $105.00 from the boyfriend of Connie Jackson.

It is manifest from the evidence in this case that appellant swore that he got the $105.00 from four different persons. In his oral confession he told Officer O’Bryant that after the robbery Richard Elliott got Mrs. McKee’s keys to her Chrysler automobile; that Elliott was driving the Chrysler and that he was in the back seat and, as they were leaving, the money bags were thrown on the back seat. Appellant stated that he was told he was not going to get any of the money because he was scared, but unknown to Elliott (and the other alleged occupant) he opened one of the bags of money and took a hundred and some few dollars.

Appellant contends that he was denied effective assistance of counsel. This contention is not supported by the record. The record reveals that defense counsel was very much aware of the facts and circumstances leading up to the arrest and conviction of appellant. Appellant was arrested on the night of the robbery and trial counsel was retained to represent him. A preliminary hearing was held on December 13, 1978, and he was represented by trial counsel at this hearing. Appellant was arraigned on February 5, 1979, and counsel was present. A habeas corpus petition was filed in the Circuit Court approximately one month before the trial. Trial commenced on February 6,1979. Despite counsel’s long affiliation with this case he claims that he was forced to go to trial upon six days notice and that the trial court erred in not granting him a continuance to afford him ample time to prepare for trial.

A motion for a continuance in a criminal case is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed on appeal unless clearly abused. Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Johnson v. State, 54 Ala.App. 581, 310 So.2d 504. We find no abuse of discretion in denying a continuance in this case.

Appellant claims that his arrest was illegal and without probable cause. We do not agree. A police officer may arrest any person for a felony, although not committed in his presence, if he has reasonable cause to believe that the person arrested committed the offense. Sheffield v. State, Ala.Cr.App., 324 So.2d 319.

In determining whether there was probable cause to arrest, it is not necessary that the officer have evidence which would support a conviction for the offense. The arresting officer had received inforftiation from a reliable person that appellant was a participant in the robbery. This informer had given the officer information in the past which proved to be accurate and which resulted in arrests and convictions. In addition, the robbery victim identified one of the robbers’ voices as that of Fernando Ball who was a former employee of the Bonanza restaurant. She also viewed a lineup and identified the fourth man in a five-man array and he turned out to be appellant. The officer received signed statements from appellant’s father and mother-in-law that they gave appellant and his accomplice a ride on the morning of the robbery and let both out of the car near the Bonanza restaurant a few minutes before the robbery was committed. We do not deem it necessary to restate the testimony of the victim of this robbery.

Officer Cutchens testified that he saw appellant’s accomplice, Richard Elliott, near the stolen car. A stocking was found in the stolen automobile.

Harry Jackson informed the officers that he picked up appellant around 9:10 a. m. on the day of the burglary and that he pulled out $105.00 from his pocket.

In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, the Supreme Court held:

The rule of probable cause is a practical nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.

Armed with all of the above information the arresting officer certainly had probable cause to arrest appellant and charge him with the robbery of the Bonanza restaurant. As this court said in Braxton v. State, Ala.Cr.App., 350 So.2d 753:

“. . . The law does not require the police officers to have evidence which would conclusively establish guilt, but merely facts which would warrant a man of reasonable caution to believe that the appellant had violated the law. The test is a pragmatic one, seeking to balance the welfare of the public against the ability of law enforcement (officers) to effectively maintain law and order . . . ”

Appellant claims that his confession was not voluntary and should have been excluded. An extra-judicial confession, oral or written, is prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether the confession is voluntary, and, unless it so appears, it should not be admitted. Pike v. State, Ala.Cr.App., 340 So.2d 865; Rainer v. State, Ala.Cr.App., 342 So.2d 1348; Hardin v. State, Ala.Cr.App., 344 So.2d 234.

The voluntariness of an alleged confession is a question of law for the court upon preliminary proof, showing the circumstances surrounding the alleged confession, taken outside the hearing of the jury, and such finding will not be disturbed on appeal unless it appears contrary to the great weight of the evidence or is manifestly wrong. Balentine v. State, Ala.Cr.App., 339 So.2d 1063, certiorari denied, Ala., 339 So.2d 1070; Stewart v. State, 49 Ala.App. 681, 275 So.2d 360.

The rule announced in Balentine and Stewart, supra, was fully complied with in this case and the confession was properly admitted into evidence.

The acts, declarations and demean- or of the accused, before and after the commission of 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. Davis v. State, Ala.Cr.App., 331 So.2d 813; Hoback v. State, Ala.Cr.App., 338 So.2d 439.

Finally, appellant complains that the prosecutor in closing argument made reference to the absence of Richard Elliott as a witness for appellant. It is the general rule that one party may not comment unfavorably on the other party’s failure to produce a witness supposedly favorable to that party if the witness is equally available to both sides. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

The accomplice, Richard Elliott, had made good his escape and was certainly not available as a witness for the State. We construe the argument as a comment upon the weakness of appellant’s testimony, which is a valid subject of argument. Hill v. State, Ala.Cr.App., 348 So.2d 848.

We have carefully examined 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: PER CURIAM.

text:
    Ex parte Fernando BALL. (Re: Fernando Ball v. State of Alabama).
    79-120.
    Supreme Court of Alabama.
    Sept. 26, 1980.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED-NO OPINION.

All the Justices concur.


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

text:
    Henry T. JACQUES v. STATE.
    4 Div. 837.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.
    See also 376 So.2d 821.

      Jerry E. Stokes, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired. Circuit Judge.

This is an appeal from the denial of appellant’s petition for a writ of error coram nobis.

The target of the petition is the judgment of conviction and sentence that was affirmed in Jacques v. State, Ala.Cr.App., 376 So.2d 821 (1979), wherein defendant was convicted of a crime of escape defined and proscribed by Code 1975, § 13-5-65, and sentenced to imprisonment for thirty years.

The petition was a pro se petition in excellent handwriting, purportedly that of the petitioner, in which the petitioner made an “Affidavit of Poverty,” in which he stated that he was “unable to . . . employ an attorney.” The attorney who represented him on the trial of the case and on appeal filed a motion to withdraw as attorney, which motion was granted, and a new experienced attorney was appointed to represent him, which he did on the hearing of the petition and has continued to do so on appeal.

The first issue raised by appellant’s attorney is as to a matter set forth in the petition, in somewhat of a discursive manner, to the effect that he was convicted of a felony and sentenced accordingly, but that the indictment charged a misdemeanor. His attorney captions the proposition:

“Whether the judgment and sentence imposed upon the appellant was responsive to the offense charged.”

The question has been a troublesome one for many years, as is evidenced by cases cited by petitioner in his petition, and it is argued by petitioner’s attorney as well as it can be argued on behalf of petitioner. We agree with the following statement of appellant’s counsel:

“Alabama has [it had at the time of the alleged offense] three escape statutes material to this inquiry. Sec. 13-5-63 of the Alabama Code provides punishment for escape by a convict sentenced to imprisonment in the county jail or to hard labor for the county who escapes from such confinement before the expiration of his sentence. Sec. 13-5-65 provides punishment for any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which the convict has been sentenced. Sec. 13-5-68 provides punishment of not more than six months imprisonment for any prisoner who escapes from the lawful custody of any law officer.”

The issue now presented is related to, but not exactly the same as, the issue as to a material variance between the indictment and the proof that was raised and decided adversely to appellant in Jacques v. State, supra. Now it appears that appellant takes the position that the indictment does not charge a violation of § 13-5 — 65 but at the most charges a violation of § 13-5-68. He is mistaken, for the reason the indictment expressly charges that defendant was “a convict” and that he did wilfully and unlawfully escape from a place where a person “had him in charge under authority of law, before the expiration of the term for which he was sentenced.” This language is equivalent to an alternative phrase of § 13-5-65, which provides:

“Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year.” (Emphasis supplied).

Some confusion could conceivably result from the failure of an indictment to set forth in the most unambiguous language possible an offense chargeable under one of the three sections as distinguished from an offense chargeable under either of the other two, but we think that it cannot be reasonably held that defendant was not sufficiently apprised of the charge against him to enable him to determine that it was based on § 13-5-65 and not under either of the other two sections. This is especially true in light of the fact that, according to the undisputed evidence, and necessarily to the knowledge of defendant, he had been convicted theretofore and sentenced to the penitentiary for burglary and grand larceny, each a felony, which could not have been embraced as a basis for an indictment pursuant to § 13-5-63. Clearly also it is not embraced as a basis for an indictment under § 13-5-68, which proscribes, according to its caption, “Escapes not otherwise provided for,” which is corroborated by the text of § 13-5-68.

It is not for us to attempt to explain or justify the great difference between maximum punishment prescribed for a violation of § 13-5-65 and the maximum prescribed by § 13-5-63 and § 13-5-68. The maximum, though not expressly stated in § 13-5-65 is a “term up to and including life.” Weaver v. State, 44 Ala.App. 268, 207 So.2d 134 (1968); Kelly v. State, 44 Ala.App. 307, 208 So.2d 217 (1968). It is to be noted that the new criminal code, Code of Alabama 1975, Title 13A, effective as to crimes committed after January 1,1980, has made considerable change in the punishment prescribed for the various kinds of escapes, and perhaps commendable intelligence as to changes made by the new criminal code has encouraged defendant in his apparent belief that the judgment of conviction and sentence was not in conformity with the indictment and with the law applicable to the case against him.

One ground of the petition for writ of error coram nobis alleged that “during the whole trial, petitioner was compelled to wear prison clothing before a jury.” Substantially the same ground is asserted as a basis for a reversal of the court’s order denying the petition. During the hearing on the petition, and after there was evidence to the effect that defendant was wearing prison clothing, “blue denim clothing like a blue denim shirt with dark denim pants,” the court stated:

“Mr. Stokes, I can tell you this of my own personal knowledge about the prison clothes. Mr. Bill Law, the probation officer, told me that the Baptist Church had clothing that could be made available to Defendants in these cases. And I don’t know what officer it was, but I told him to find out if Mr. Jacques wanted some clothes from down there and he said, no, he wanted to be tried in his prison clothes, is the word that came back to me about it. I made an effort to see that he got clothing other than the prison clothing.”

The petitioner testified that he did not recall having any discussion with the court or his attorney with reference to his clothing and that he was not advised that he did not have to proceed to trial in the clothing that he had on. He said:

“Q. Your testimony under oath is, that nobody ever told you that you had access to any other clothes?
“A. Yes, sir.
“Q. And you sat through your trial in the clothes that you had issued to you in Kilby prison, is that right?
“A. Yes, sir.”

In Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), reh. den. 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), it was held that a state cannot, consistent with the Fourteenth Amendment due process or equal protection requirements, compel an accused to stand trial before a jury while clothed in identifiable prison clothing, but that the failure to make an objection to the court as to being tried in such clothing, for whatever reason, was sufficient to negate the presence of compulsion necessary to establish a constitutional violation. The instant case presents an even more favorable situation for the application of that which was held in Estelle v. Williams, for the reason that all of the jurors knew from the evidence presented to them that defendant was at the time of his trial a convict, serving time at the time of the trial for a previous felony. His prison attire revealed nothing to the jury as to which the jury was not fully informed by the evidence. The defendant was not prejudiced by any failure on the part of the State to provide him with other clothes. In saying this, we do not recommend that even in such a case a convict should not be dressed with appropriate clothes throughout his trial, clothing distinctly different from his prison clothes. He should be if such is his desire, as apparently he would have been, except for some apparent or possible misunderstanding.

One of the grounds of the pro se petition for writ of error coram nobis states:

“Petitioner was entitled to a court appointed attorney who would aid him and not the state, and an attorney who had an interest and not a conflict of interest. Three other codefendants only got 90 days for alleged escape, yet court appointed attorney wanted petitioner to plea bargain for thirty years. Court appointed attorney’s wife, a lawyer also on the same case, had another codefendant testify against petitioner to get 90 days in jail.”

On the hearing of the petition, the attorney appointed to represent defendant on the trial and who continued to represent him on appeal, as shown by Jacques v. State, supra, testified on call of the petitioner. Said attorney’s wife, also an attorney, testified also on call of the petitioner. Their testimony is clear, and its credibility is not questioned. They are and were partners in the practice of the law. Each was appointed by the court as an attorney for an indigent defendant who was confined to the Coving-ton County Jail on the night of November 1-2, 1978, when there was a “jailbreak” in which seven or more prisoners escaped. The husband was appointed to represent Mr. Jacques, and the wife was appointed to represent Mr. Bart T. Rossi. However, she was not appointed to represent Mr. Rossi on the charge of an escape. It appears that before she was appointed to represent him, the case against him for an escape had already been heard and disposed of as a misdemeanor in the District Court. She was appointed to represent Rossi first in a case against him for possession of marijuana and thereafter was appointed to represent him in a case based on a charge of larceny and robbery on the occasion or night of the jailbreak.

The testimony on the hearing of the petition, which consisted of the testimony of the two attorneys who had represented Mr. Jacques and Mr. Rossi, and the testimony of Mr. Jacques, was clear to the effect that both of the attorneys and Mr. Jacques knew that the husband was representing Mr. Jacques and the wife was representing Mr. Rossi. It is also clear from the testimony of Mr. Jacques and his attorney that the matter of the representation of Mr. Rossi by the attorney for Mr. Jacques was discussed between Mr. Jacques and his attorney, but neither was positive as to the reason for such discussion or as to any details thereof.

The undisputed evidence on the hearing on the petition shows also that Mr. Rossi’s attorney through plea bargaining discussions with a representative of the State obtained an agreement from the prosecution for a judgment or judgments against Rossi, on his plea or pleas of guilty, which the court by its judgment or judgments approved. As to the plea bargaining discussions, the attorney for Mr. Rossi testified:

“Q. Okay. Now, during your representation of him, was there some plea bargaining that went on in connection with his getting a sentence in exchange for his cooperation in testifying in the Henry Jacques’ trial?
“A. He would get a recommendation in exchange for his cooperation in the escape and the charges arising therefrom.
“Q. Okay. So he agreed in effect, to cooperate with the State in the prosecutions arising, against anyone, arising out of the escape incident?
“A. As I remember, that’s correct.
“Q. In which, Mr. Jacques was involved?
“A. In exchange for a recommendation, yes.”

It is clear also that each of the attorneys represented his or her respective client independently and without cooperation or conjunction with the other attorney in his or her representation of his or her client. It appears that the only communication between them with reference to the subject was that she “told Mr. Jacques’ attorney that Mr. Rossi was going to testify in the case against Mr. Jacques.”

As a part of the testimony of Mr. Rossi’s ' attorney on the hearing of the coram nobis petition, she said:

“Q. Did you have any discussion with the District Attorney or the Court with reference to any possible conflicts that might arise from that situation?
“A. Yes, I did.
“Q. Could you tell us the nature of those discussions and how that was resolved?
“A. When I became aware that Mr. Ros-si — that there was a possibility that he would become a State’s witness, as I remember it, I spoke to the judge. And asked him about my husband representing one person involved in the escape and my representing another and was informed that they did not believe that there would be any conflict and that I would not withdraw.”

Notwithstanding the good faith and sincerity and the then apparent propriety of one’s law partner representing Mr. Jacques and the other law partner representing Mr. Rossi, with the sanction thereof by the court, there was danger lurking therein that doubtless could not have been as well perceived then as now. Facially, at least, a serious question is presented as to whether the situation described impaired Mr. Jacques’ attorney, potentially or actually, in his ability or conduct in his representation of Mr. Jacques. Not all law partnerships possess the same community of interest and confidence in the business of the partnership. However, we have an example here of an admirable extraordinary community of interest among law partners that is hardly distinguishable from a complete unity of interest. If it is assumed that neither of the attorneys could have properly represented Jacques and Rossi, it seems to us that neither attorney should have represented either defendant while the other attorney was representing the other defendant. It cannot be maintained that an attorney cannot represent more than one of a number of codefendants, whether singly or jointly indicted. At the time of the appointment of the attorney to represent Jacques and the appointment of the attorney to represent Rossi, it is understandable that there was no apparent conflict of interest between that of Jacques and that of Rossi. However, when it developed that Rossi was to plea bargain on a basis of his cooperation with the State and testifying on call of the State, which he did not have to do by reason of his constitutional right not to incriminate himself, a conflict, in our opinion, occurred. The situation then became dangerously close to a collision with the result found in Zuck v. Alabama, 588 F.2d 436 (5 Cir. 1979), in which it was stated at 588 F.2d 439:

“. . . If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.
“If such an actual conflict exists, it need not be shown that the divided loyalties actually prejudice the defendant in the conduct of his trial. As we noted in Castillo [Castillo v. Estelle], 504 F.2d [1243] at 1245 [(5th Cir.)]:
“ ‘When there is a conflict of interest such as exists in this case, the prejudice may be subtle, even unconscious. It may elude detection or review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real, as it is here, a denial of the right to effective representation exists, without the showing of specific prejudice.’ ”

Whether we agree with the application of the principles of law set. forth in Zuck to the facts, we are required, whether such is as it should be, to follow what federal courts consistently hold as to rights guaranteed by the Constitution of the United States, including the Fourteenth Amendment rights which have been construed to include the right to the effective assistance of counsel in the defense of a criminal case. We do not hesitate to follow that which was held in Zuck and stated in other federal cases. We find, however, that there are circumstances in the instant case not discussed above, which will be now discussed, that remove the judgment of conviction and sentence of Jacques from extinction as pronounced as to the trial court judgments in Zuck and other cases.

On the hearing of the coram nobis petition, there was introduced in evidence a copy of the transcript of the evidence on the trial of the case, and we have it now before us as a part of the transcript on this appeal as it was in Zuck v. State, supra. By it we are reminded of the factual basis for what was said in Jacques v. State, at 376 So.2d 825, that before the trial commenced therein defendant moved the court to dismiss his attorney and that in overruling the motion, the trial court made it clear to the defendant that defendant presented to the court no good reason for the removal of the attorney, that the previous attorney had been appointed and had been removed on motion of the defendant. In Jacques v. State, supra, our opinion included a review of the trial court’s action in denying defendant’s motion to remove his attorney and in permitting, nevertheless, the defendant to participate pro se in the defense, which he did with commendable skill, irrespective of any lack of due deference to the trial judge and to his attorney. We concluded that there had been no error prejudicial to defendant, that there had been “no questionable ruling of the court that, if otherwise, would have caused a different verdict.” There was no application for rehearing, no petition for certiorari. In presenting the motion to remove his attorney in the- trial court, defendant filed a written pro se motion, consisting of nine paragraphs, the last paragraph stating:

“9. It seems public defender spends more time talking to the district attorney; therefore, defendant asks the court to appoint him another attorney for public defender definitely has no interest and there certainly is a conflict of interest, for I need an attorney who will help me and not the district attorney.”

Promptly after the court announced its ruling denying defendant’s motion to dismiss his attorney, there was considerable dialogue between the court and defendant, but in it there was no mention made of the fact that the wife and partner of defendant’s attorney was attorney for Bart Rossi. The motion was filed two days before the trial commenced, along with other pro se documents, including a “Request for Subpoena to Produce Witnesses at Trial.” The request contained a list of fifty-seven named witnesses, which included as number 13 the name of Bart Rossi.

Although there is accentuation in the cor-am nobis proceeding of the representation of petitioner by the husband and law partner of the attorney who represented Rossi, it appears that petitioner was fully cognizant of that fact when the case was tried and that he did not accentuate the fact when he presented his motion to remove his attorney. With his obvious familiarity with his Fourth Amendment rights, appellant should have so emphasized the conflict of interest question as to have brought it to the attention of the trial court and to the court on appeal, long before the filing of his coram nobis petition.

We now have occasion to look more intently upon the testimony of Bart Rossi on the trial of the case. He was the witness who testified that he saw defendant releasing the jailer from a “Full-Nelson hold.” He was not cross-examined by defendant’s attorney; Mr. Jacques cross-examined the witness. He was able to show by his own familiarity with the jail that were it not for light in a bathroom of the area where the witness said he saw defendant releasing the jailer from a “Full-Nelson hold” the area would have been “pitch black.” A part of the cross-examination was as follows:

“Q. All right. Was there any lights on out here?
“A. No, it was very dark.
“Q. Was there any lights in the middle cell?
“A. No.
“Q. Was any lights on on the north side?
“A. No.
“Q. In other words, the place — the whole top floor was pitch black?
“A. Right.
“Q. But you seen me bring Melvin Watson inside in a Full-Nelson?
“A. Yes.
“Q. In pitch black darkness, you seen me?
“A. Right. There was a light on in the bathroom.
“Q. You just-said all the lights were out upstairs?
“A. They were except for the bathroom light. That light is always on.
“Q. Nobody in the cell can turn that light out?
“A. Not before you can go up there and unscrew it.
“Q. Can anybody in the cell unscrew that light and put that light out?
“A. Yes.
“Q. And as far as you know all these doors was open?
“A. Right.”

It should be said, we think, that, contrary to that which might otherwise be thought, Bart Rossi was not a convict at the time of the escape and therefore could not have been convicted under § 13-5-65, as was Mr. Jacques, or under § 13-5-63, which is applicable to the escape of one who has been convicted of a misdemeanor, and could only have been convicted under § 13-5-68. The violation of § 13-5-68 is a misdemeanor with a maximum prison sentence of six months. Whatever leniency he may have obtained by reason of his willingness to testify as a witness for the State against Mr. Jacques was not as great as Mr. Jacques seemed to think in emphasizing the disparity between the punishment received by Mr. Jacques and the punishment received by Rossi. We do not attempt to say whether the fact that Rossi was only eighteen years of age at the time was a material factor as to the punishment he received.

Although the conflict of interest issue was presented in the coram nobis proceeding, the cardinal grievance of petitioner was as to the question of the validity of his sentence of imprisonment for thirty years. According to what the petitioner said at the conclusion of his testimony on the hearing, the proceeding was based exclusively upon that grievance. His last words on the subject in his cross-examination were:

“Q. Now, Mr. Jacques, at the time you were indicted and tried for escape, what was you in jail for?
“A. I’d been — I was in jail for breaking and entering and grand larceny, I believe.
“Q. How many different cases?
“A. Four.
“Q. Four different cases? All right. Did you escape from jail?
“A. I walked away from the jail.
“Q. All right. You did leave the jail knowing you were sentenced—supposed to stay there, didn’t you?
“A. Yes, sir.
“Q. All right. Now what is it you are asking the Court to do here today?
“A. I’m asking that I be tried and sentenced for what I am indicted for. I was not tried and sentenced for what I was indicted for. I was found guilty of escaping from a county jail and the sheriff and then I was sentenced to thirty years for escape from a penitentiary and a guard.
“Q. All right. And that’s what you are asking for?
“MR. STOKES: I . . .
“A. I’m just asking to be treated like anybody else got treated.”

By his own testimony, appellant showed that he was guilty of the crime of escape, that he was rightfully convicted of a crime of escape, that he now has no genuine complaint as to the services of the attorney who represented him on the trial except that the attorney should not have endeavored to work out a plea bargaining disposition of his case on the basis that there was no valid charge against him for the more serious kind of an escape, and that his punishment should not have exceeded the maximum of the punishment prescribed for the escape committed by Rossi and some of the other escapees. His entire grievance was condensed into a mistaken notion as to the applicable law. It follows that he has presented no valid basis for post-conviction relief and that the trial court was not in error in denying his petition for writ of error coram nobis.

As we have already indicated, the notion of appellant that the section of the Code under which he was convicted, § 13-5-65, does not exclusively embrace an escape by one who has been convicted of a, felony, and for that reason another section of the Code would have been applicable to his case, is a mistaken one. However, the mistake is one easily made and is not without some reason, when we consider the absence of express language that the convict therein stated must be one convicted of a felony. In addition to what has been determined herein that the language of § 13-5— 65, containing the phrase “either within or outside the walls of the penitentiary,” limited its application to persons who had been convicted of a felony and sentenced to the penitentiary, and that none of the other sections of the Code would have been applicable to such convicts whose sentences had not expired, we call special attention to the true meaning of “convict” when used as a noun.

This portion of the opinion is largely out of special consideration and respect for that which appears to be a persistent and sincere belief of appellant in the correctness of his construction of the law, as to which he has recently been an avid and resourceful student. We can readily see that in the language and terminology of the present time the noun “convict” is often used and understood as referable to one who has not been convicted of a felony and sentenced to the penitentiary, but, to avoid a misunderstanding, it is well to note that the word has a special signification in addition to its general meaning, which is thus well expressed:

“1. A person proved guilty, by a competent tribunal, of a criminal offense; esp., a person convicted of, and under sentence for, a felony or serious crime.
“2. Hence, in popular use, a person serving a prison sentence, usually for a long term.” Webster’s New International Dictionary (2d. ed.)

No doubt the special meaning of the word was more generally ascribed to it in the distant past than was its general meaning, particularly in 1852, when the law contained in § 13-5-65 was first codified. In striking contrast, the statutory authority for § 13-5-63, applicable to convicts sentenced to imprisonment in the county jail or to hard labor for the county, is found in Acts 1959, No. 87, p. 508.

It is to be noted that his attorney appointed by the court to represent him in his coram nobis proceeding, who has also represented him on appeal and has filed a brief in his behalf, filed a motion in this court on January 9,1981, that he be allowed to withdraw as counsel for appellant by reason of the fact that on January 20, 1981, he would become an “Assistant District Attorney for Covington County, Alabama,” which would create a conflict of interest. The motion was granted by the Presiding Judge of this Court on the same day it was filed. Thereafter, appellant filed a motion for the appointment of counsel on appeal, in the light of the conflict of interest of his own attorney on this appeal. By letter of February 5, 1981, the Clerk of this Court advised appellant that she had been instructed to inform him that his appeal in this case had been submitted on the brief of his former attorney and that “Should your appeal be affirmed, the Court of Criminal Appeals will appoint an attorney for you for application for rehearing.” This is to be promptly done so as to give the newly appointed attorney an opportunity to file an application for rehearing and a supporting brief.

It is to be further noted, perhaps interestingly, that in requesting a particular attorney, naming him, appellant says that he “is a competent attorney and is very familiar with this for he is already representing a codefendant on his appeal connected with this same case.” All of this is to be kept in mind and special consideration given to any question of “conflict of interest.”

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.

      . The attorney does not now represent appellant, as explained in the concluding part of the opinion.

      . It is a photocopy, which complies with the Rules, but it is a dim copy, which does not comply with the spirit of the Rules, and we have been able with considerable strain to read it.


author: PER CURIAM. PER CURIAM.

text:
    Ex parte Henry T. JACQUES. (Re Henry T. Jacques v. State of Alabama).
    80-687.
    Supreme Court of Alabama.
    Jan. 8, 1982.
    Rehearing Denied Feb. 5, 1982.
    See also 376 So.2d 821.
    Jeffery C. Duffey of Duffey & Wallace, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Affirmed on the authority of Ex parte Mickey Ellison [MS. January 8, 1982], - So.2d-(1982).

AFFIRMED.

All Justices concur.

ON REHEARING

PER CURIAM.

On application for rehearing, petitioner says his case should not have been affirmed on the basis of Ex parte Mickey Ellison, 410 So.2d 130 (1982), because, he says, he raised the issue of the sufficiency of the indictment at trial and on direct appeal.

We examined the opinion of the Court of Criminal Appeals on Jacques’s original appeal to determine the manner in which he raised the sufficiency of the indictment. The issue concerning the indictment which the petitioner raised on direct appeal [Jacques v. State, 376 So.2d 821 (Ala.Crim.App.1979) ], we find, was as follows:

He claimed that there was a fatal variance between the indictment and proof at trial. The Court of Criminal Appeals addressed this issue in its opinion and ruled adversely to the petitioner.

Upon further consideration, we still conclude that Jacques did not raise the sufficiency of the indictment at his original trial or on appeal. The essence of his argument on rehearing is that had he known about this Court’s opinion in Behel v. State, 397 So.2d 163 (Ala.1981), he would have raised the issue then and not now by coram nobis. In fact, he candidly admits that “[t]he decision in Behel was a fact that could not be discovered until this Court had ruled on it.” He claims that these facts are sufficient grounds for coram nobis. We disagree.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

All Justices concur.


author: TYSON, Judge.

text:
    George L. WARE v. STATE.
    2 Div. 302.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Hiram Dodd, Jr. and J. Louis Wilkinson of Wilkinson, Purvis & Dodd, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

The appellant was indicted and convicted for burglary in the third degree. Ala.Code § 13A-7-7 (Supp.1979). Sentence was seven years’ imprisonment.

Omitting its formal parts appellant’s indictment reads as follows: (R. 7)

“The Grand Jury of said County charge that before the finding of this indictment George L. Ware whose name is otherwise unknown to the Grand Jury, did, knowingly enter or remain unlawfully in a building, to wit: Piggly Wiggly of Linden, Inc., with intent to commit a crime therein to wit: theft of United States currency and coins and merchandise in violation of 13A-7-7 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

Moundville Police Chief Raymond A. Robinson testified that he received a radio dispatch at 3:05 a. m. on March 31, 1980, directing him to a Ford pickup truck on Highway 69. Michael Springfield was the driver of the truck. The truck was carried to the Moundville Police Station and its contents inventoried. Chief Robinson stated that various merchandise was found in the truck, including meat, flashlight batteries, watches and cigarettes. Also included in the items discovered were several burglary tools.

On cross-examination it was learned that Springfield had attempted to bribe arresting officer John Seaton with money found in a bag in the back of the truck. Chief Robinson stated that the burglary tools “were mixed in with the stolen stuff out of Linden.” (R. 60) He further stated that “drills, hacksaws, and these books, safe books, were in the truck with them . . . Michael Springfield said they were used down here.” (R. 60) Chief Robinson did not see appellant that night.

Sergeant B. S. Tucker of the Linden Police Department testified that at approximately 4:00 a. m. on March 31, 1980, he found the Linden Piggly Wiggly in Maren-go County “broken into.” (R. 64) Sergeant Tucker stated that the locking mechanism to the front door “had apparently been stripped out because it was open.” (R. 65) Sergeant Tucker first noticed black looking water leading to the office door. Sergeant Tucker next found a big hole burned in the safe and the safe door open, the office strewn with papers and the cash register drawers open. He then discovered that the “meat case was cleaned out.” (R. 66) Sergeant Tucker also discovered some meat and a Timex watch outside the back door.

Mr. W. T. Glass, owner of the Piggly Wiggly, testified that he identified various items of merchandise at the Moundville Police Department that had been taken from his store during the burglary. Mr. Glass stated that the meat counter had been “loaded” with meat when the store closed on Saturday night before the burglary, but was empty Monday morning. He testified that his store was broken into on Sunday night because the butcher had gone to the store that afternoon between five and five-thirty. Mr. Glass further testified that ten thousand dollars was kept in the safe and that the burglars “got all the money.” (R. 73)

Investigator Dennis Mason of the Maren-go County Sheriff’s Department testified that when he arrived at the Piggly Wiggly the morning of the burglary he found the store in shambles. He saw that the safe had been cut open “with some kind of burning instrument.” (R. 76) Investigator Mason made photographs of the safe and of various merchandise and other items which had been recovered at the Moundville Police Department.

Mr. Bill Drinkard, the Piggly Wiggly market manager, stated that he went to the store on Sunday afternoon around five to six p. m., as was his custom, and generally observed the store. Everything appeared to have been in the same condition as it had been the previous evening when the store closed. Mr. Drinkard then testified as to the condition of the store Monday morning after the burglary. He estimated that the value of the meat taken alone was between thirty-five hundred and four thousand dollars.

Miss Catherine Kendall McColeman testified that she was living at the Old Country Inn in Linden during March of 1980. Miss McColeman learned that the Piggly Wiggly was burglarized on Sunday night, March 30, while living at the motel. Miss McColeman stated that on Saturday evening before the burglary, between seven and nine p. m., she followed a green Pontiac Firebird with a North Carolina license tag into the motel parking lot. She noticed that the Firebird “parked on the other side at the very end of the motel” next to “a black truck with a white camper.” (R. 95) Miss McColeman identified the pickup truck as being the same one in which Springfield was apprehended. Miss McColeman saw two males exit the Firebird and go to their room.

On Sunday afternoon, between three and five p. m., Miss McColeman saw the pickup truck pull in front of the motel, and the appellant exit the vehicle. Appellant asked her what time it was. Miss McColeman stated that she had no question in her mind about appellant’s identity.

Investigator Norman Lindsey of the Department of Public Safety testified in pertinent part concerning the chain of evidence between Linden and Moundville.

Ms. Dianne Sciara testified that appellant purchased various locksmith tools at Lock and Key Wholesale Distributors in Birmingham. Ms. Sciara stated that the first time appellant came into the store was March 18, 1980, that he came into the store twice that day and that she made out two tickets for the items purchased. Appellant came back the next day, March 19, and made additional purchases. Among the items purchased were a re-keying kit, a “SlimJim” car opening tool, lock picks, a home saw, tension wrenches, lock pliers, a ring depression tool, a lock cap and a set of double sided picks. Ms. Sciara saw appellant in the store a total of four times.

On cross-examination Ms. Sciara explained that Lock and Key Wholesale Distributors sold merchandise to locksmiths and that appellant was a licensed locksmith in Jefferson County. Ms. Sciara stated that appellant gave her his business card which read “Marshall Lock and Alarm Company.” Ms. Sciara then testified that appellant made further purchases on April 9, 1980— “Mostly the same things that he purchased 3/18 and 3/19.” While Ms. Sciara could not say positively that the burglary tools introduced into evidence came from Lock and Key Wholesale Distributors (the tools did not have serial numbers or other identifying marks), she did state that the tools were “just exactly like the ones” appellant purchased. (R. 116)

Ms. Judy O’Daniel, also of Lock and Key Wholesale Distributors, testified that she, too, had seen appellant in the store and that she had written an invoice for purchases appellant made on April 9, 1980.

Investigator O. E. Billingsley, III, of the District Attorney’s Office for the Seventeenth Judicial Circuit testified that as part of his investigation of the Piggly Wiggly burglary he made pictures of a Firebird parked in front of the McAlpine Village Apartments in Hoover in Jefferson County. He also made a picture of appellant’s residence in Hoover.

On cross-examination Investigator Bill-ingsley stated that the Firebird was registered to May Ferguson Willis, a relative of appellant’s wife, in Moorehead City, North Carolina.

Michael Springfield, an admitted accomplice to appellant’s burglary of Piggly Wiggly, testified that he had nine or ten felony convictions in addition to his conviction for the Piggly Wiggly burglary. Springfield stated that he had known appellant “about a week” prior to March 31, 1980, that he met him when he got out of the Jefferson County Jail. Appellant had helped arrange Springfield’s bond. Springfield testified he “had learned through sources” that appellant “was an expert” in turning off burglary alarms and opening safes. (R. 155)

Springfield admitted that he and appellant had conversations concerning burglaries and places where burglaries could be committed. “We discussed a few things, and I told him that I was going turkey hunting down in this part of the country and he asked me to look at a Piggly Wiggly on the outside of Linden. . . . And, so I looked at it and he told me to call him.... ” (R. 135) Springfield stated that he called appellant from Thomasville: “I just told him that the Piggly Wiggly didn’t have a burglary alarm on it.” (R. 136) Springfield made a general surveillance of the Piggly Wiggly and went inside during business hours.

Springfield met appellant in Thomasville around 7:00 p. m. the night before the burglary. Springfield stated that appellant was travelling in a green Pontiac with a North Carolina tag. Appellant was accompanied by one Cecil Sherril. Springfield was driving the previously referred to pickup truck. Springfield stated that from Thomasville the group travelled to Linden, then to Demopolis and back to Linden where they spent the night in a motel near the Piggly Wiggly.

Springfield testified that on Sunday the Piggly Wiggly was closed, that they did not do “too much until Sunday evening.” (R. 141) Springfield next stated that appellant was in possession of the burglary tools previously admitted into evidence. “He had them with him when he came down here to meet me.... I can’t remember, you know, each individual item, but a mass of burglary equipment.” (R. 142) The appellant also had acetylene burning equipment in the trunk of the Firebird which was used in opening the safe. Springfield further stated that after the burglary was committed, appellant’s burglary tools were placed in the back of the pickup truck.

Springfield next testified as to the details of the burglary. Suffice it to say that appellant played an instrumental role in accomplishing the crime. Not only did appellant break and enter the store and burn open the store safe, he also helped load the stolen property onto the pickup truck.

After the burglary appellant and Sherril followed Springfield and an unnamed party out of Linden. Before the group got to Moundville, appellant “flagged” Springfield down and told him “he had left something inside the store that he needed to get that could be traced.” (R. 148) At that point Sherril got in the truck with Springfield and the unnamed party got in the car with appellant. The two vehicles then proceeded in opposite directions. Springfield further admitted that he had attempted to bribe a police officer in Moundville at the time he was arrested.

Chief Robinson was recalled and testified concerning certain acetylene and oxygen bottles found in the truck Springfield was driving. It was determined that this burning equipment had been stolen out of a burglarized building in Jackson.

On re-cross Chief Robinson stated that thirty-three or thirty-four hundred dollars was recovered in the back of Springfield’s truck.

Investigator Mason was then recalled and offered testimony that he had taken photographs of Springfield’s truck which were marked State’s exhibits one and two. His testimony concluded the State’s case. Appellant’s motion to exclude was overruled and the defense rested without presenting any evidence.

I

Appellant alleges that he was convicted on the uncorroborated testimony of an accomplice, Michael Springfield, in violation of Ala.Code § 12-21-222 (1975). We disagree and find that Springfield’s testimony was sufficiently corroborated to sustain appellant’s conviction.

Without question, the State’s chief witness was Michael Springfield who admitted his participation in the burglary and was an accomplice as a matter of law. Andrews v. State, 370 So.2d 320, 321 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979); Jacks v. State, 364 So.2d 397, 403 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978); Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972). As such his testimony requires corroboration. Ala.Code § 12-21-222 (1975).

The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973); Andrews, supra. As this Court stated in Andrews, supra:

“The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. ‘Corroborate means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminat-ing force of his testimony.’ Malachi v. State, 89 Ala. 134, 140-141, 8 So. 104, 106 (1889); Smith v. State, 230 Ala. 413, 416, 161 So. 538 (1935); Brown v. State, 31 Ala.App. 529, 19 So.2d 88 (1944). The corroborative evidence need not be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974); Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941). Corroborative evidence need not directly connect the accused with the offense but need only tend to do so. State v. Canada, 107 Ariz. 66, 481 P.2d 859, cert. denied, 404 U.S. 848, 92 S.Ct. 154, 30 L.Ed.2d 87 (1971). See Pearce v. State, 26 Ala.App. 492, 495, 164 So. 114, cert. denied, 231 Ala. 150, 164 So. 118 (1935) (‘(B)ut, as we read the cases, the corroboratory evidence, if it meets the test of “tending to connect the defendant with the commission of the offense”, need not be, in and of itself alone, that tending in any wise to fasten guilt upon the defendant’); 23 C.J.S. Criminal Law § 812(3) (1961). The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime. Lowe v. State, 32 Ala.App. 178, 22 So.2d 618 (1945). The corroboration of an accomplice may be shown by circumstantial evidence. Blevins v. State, 56 Ala.App. 115, 319 So.2d 734, cert. denied, 294 Ala. 753, 319 So.2d 739 (1975); Tidwell v. State, 23 Ala.App. 409, 126 So. 186 (1930).
In certain instances, association with the accomplice tending to show the accused’s proximity, chronologically and geographically, to the alleged offense may furnish sufficient corroboration. Ross v. State, 74 Ala. 532 (1883); DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130 (1948).” 370 So.2d, at 322.

And, as was further stated in Jacks, supra.

“The corroborative evidence need not refer to particular statements testified to by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776 (1936); Malachi v. State, 89 Ala. 134, 8 So. 104 (1889). ‘It is not necessary that the corroborating evidence refer to any particular statement or fact testified to by the accomplice. If it strengthens the probative cri-minating force of his testimony and tends to connect the defendant with the commission of the offense it is sufficient to warrant the submission of the issue of guilt or innocence to the jury.’ Smith v. State, 230 Ala. 413, 416, 161 So. 538, 542 (1935).
“Additionally, sufficient corroboration of the testimony of an accomplice may be furnished by a tacit admission by the accused, by the suspicious conduct of the accused, and the association of the accused with the accomplice, or by the defendant’s proximity and opportunity to commit the crime. Cheatwood v. State, 22 Ala.App. 165, 113 So. 482, cert. denied, 216 Ala. 692, 113 So. 915 (1927); 23 C.J.S. Criminal Law § 812(4).
‘In determining the sufficiency of corroborative evidence testimony the entire conduct of an accused within reasonable time limits of the date of the offense may be examined.’ Fuller v. State, 34 Ala.App. 211, 215, 39 So.2d 24, 27, [cert. denied,] 252 Ala. 20, 39 So.2d 29 (1949). An accused’s consciousness of guilt as shown by the evidence may be corroborative. Fuller, 34 Ala.App. 215, 39 So.2d 24.” 364 So.2d, at 404, 405.

Applying these principles to the facts of this case we have no difficulty in finding that the testimony of the accomplice Springfield was sufficiently corroborated. Under the circumstances of this case the corroborative evidence is inconsistent with the innocence of the appellant and does more than merely raise a suspicion of guilt. Under the facts the guilt or innocence of the appellant was properly submitted to the jury.

II

Appellant also contends that the trial court erred to reversal in admitting State’s exhibits 3 through 10, 16 and 17. Exhibits 3 through 7 consist of the burglary tools and exhibit 8 is the telephone, all found in the back of Springfield’s truck. Exhibits 9 and 10 were photographs of the locking mechanism to the safe which was also found in Springfield’s truck; however, these two exhibits were subsequently withdrawn from evidence and, thus, will not be further discussed. Exhibits 16 and 17 are the sale receipts from Lock and Key Wholesale Distributors made out to appellant and/or Marshall Lock and Alarm Company. Appellant alleges that these objected to exhibits never properly connected him to the commission of the burglary and should not have been admitted. Again, we disagree.

Exhibits 3 through 7, the burglary tools, were found in the back of Springfield’s truck shortly after the robbery. Springfield testified that appellant had the tools with him “when he came down here to meet me.” Springfield also testified that appellant left the motel room around 11:00 p. m. to open the door to the Piggly Wiggly, and “put the tools in.” He was further aware that the burglary equipment was placed in the back of the truck after the burglary had been completed. Ms. Sciara testified that the burglary tools which had been admitted into evidence were “just exactly like the ones” appellant had purchased from Lock and Key Wholesale Distributors. By all fair inferences appellant owned the burglary tools and almost certainly used them in the burglary where he clearly was a participant.

Concerning exhibit 8, the telephone which was found in a blue bag in the truck along with the burglary tools, Springfield testified that when appellant left to open the safe “we were to stay on the phone, inside the motel room, and watch for any police cars, or traffic coming, towards the Piggly Wiggly.” (R. 144) Springfield stated that,the Piggly Wiggly “was connected to the other end of the phone” he was using. While it cannot be ascertained with certainty that State exhibit 8 was actually used during the burglary, it can be fairly inferred from the evidence that it was. At the very least, exhibit 8 was found along with the burglary tools which were used in the burglary.

Concerning exhibits 3-8, this court held in Burlison v. State, 369 So.2d 844, 851 (Ala.Cr.App.), cert. denied, 369 So.2d 854 (Ala.1979);

“Articles which are properly identified and which tend to show the commission of the crime, or the manner in which it was committed, or to elucidate some matter in issue, are admissible for inspection and observation by the jury. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Franks v. State, 45 Ala.App. 88, 224 So.2d 924. Also, where the evidence is probative of an element of the corpus delicti and of the defendant’s participation in the offense, it is relevant and should be admitted. Harris v. State, 57 Ala.App. 558, 329 So.2d 618.”

In McCulloch v. State, 338 So.2d 187 (Ala.Cr.App.1976) the trial court admitted into evidence ski masks, rubber gloves and a mask found in the possession of the accused’s accomplice after the burglary had taken place. In holding those items properly admitted this court wrote:

“As previously indicated, the evidence was sufficient to warrant a finding that there was a burglary and that defendant was a participant in the burglary. The mere fact that the particular items of evidence were found on the other participant does not insulate them from admissibility. They were portions of the circumstances that combined to establish defendant’s criminal intent in breaking and entering the store.” 338 So.2d, at 188. (Emphasis added).

As stated previously, exhibits 16 and 17 show that appellant purchased locksmith tools shortly before the burglary, which Ms. Sciara described as being “just exactly like the ones” found in the back of Springfield’s truck. Furthermore, exhibit 17 demonstrates clearly that appellant attempted to replace certain tools shortly after the burglary which were identical to the tools found in the truck and which were identical to those tools purchased shortly before the burglary. Since appellant participated in the burglary and brought burglary tools with him to Linden which were found in Springfield’s truck, the invoices of his tool purchases, both before and after the burglary, were clearly relevant in proving appellant’s guilt.

Contrary to appellant’s assertion, the burglary tools were definitely connected to him. The circumstances are overwhelming that appellant purchased the very tools found in Springfield’s truck shortly before the burglary, used them in the burglary, and then decided to replace them shortly thereafter. As this court stated in Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973), the acts of an accused, before or after the offense, whether part of the res gestae or not, are admissible against him.

Furthermore, the formal introduction of exhibits 16 and 17, which was preceded by detailed testimony concerning the exhibits’ true nature, represented no more than the sum of the preceding testimony and did not cause reversible error. Hayes v. State, 395 So.2d 127, 147 (Ala.Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). The admission of cumulative evidence, even upon an undisputed fact, is not prejudicial error. Robinson v. State, 342 So.2d 1331 (Ala.Cr.App.1977). In addition, even the erroneous admission of evidence is not ground for reversal, if the same evidence has already been admitted to the jury without objection. Crenshaw v. State, 205 Ala. 256, 87 So. 328 (1921); Hayes, supra.

Thus, we find in each instance that the complained of exhibits were properly admitted. Strong circumstantial evidence provides any necessary nexus between the exhibits and appellant which might otherwise be lacking through direct evidence. And circumstantial evidence is entitled to the same weight as direct evidence provided it points to the guilt of the accused. Hayes, supra; Trammell v. State, 377 So.2d 12 (Ala.Cr.App.1979).

We have examined each issue raised by appellant. In addition, we have searched the record for errors prejudicial to appellant’s substantial rights. and have found none. The Circuit Court’s judgment of conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte George L. WARE. (Re: George L. Ware v. State of Alabama).
    80-823.
    Supreme Court of Alabama.
    Jan. 22, 1982.

      J. Louis Wilkinson, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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