author: TYSON, Judge.

text:
    Randy Greg THOMPSON, alias v. STATE of Alabama.
    3 Div. 241.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.
    Elno A. Smith, Jr. of Smith & Cruse, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Randy Greg Thompson was indicted for and convicted of the theft of “one 1974 Chevrolet Corvette automobile ... of the value of $7,200.00, the personal property of George B. Toumbacaris.” Thereafter, the trial court sentenced the appellant to ten years’ imprisonment.

During the night of August 2, 1979, sometime after 11:00 p. m., a 1974 Corvette automobile belonging to George B. Toumba-caris was stolen from in front of his residence. Later that evening State Trooper George Leak monitored this automobile being driven at an excessive speed in the north bound lane of 1-65 just north of Montgomery, Alabama. He gave chase at speeds in excess of 110 miles per hour and caught the vehicle, only after the driver had carelessly suspended it on a concrete culvert in the median near the Highway 14 (Pratt-ville-Wetumpka) exit. As he approached the vehicle, Officer Leak saw the appellant emerge from the driver’s side carrying a “briefcase” and disappear over the guard rail.

The “briefcase”, which was found a short time later, contained a “Curtis Key Cutter”, and portable drill, and some blank keys (equipment which could be used in a car theft). A police expert, subsequently, identified appellant’s fingerprints on several of these items. As a result, the appellant was located and arrested.

While inventorying the appellant’s wallet at the police station, one of the officers found a slip of paper with Mr. Toumbaear-is’s address on it. When he handed it to another officer, the appellant grabbed the slip of paper and ate it. (This bit of circumstantial evidence was introduced during the state’s case in chief and was reiterated during the state’s rebuttal which was allowed over appellant’s objection, after the state had at first indicated there would be no rebuttal.)

Appellant’s defense consisted primarily of “alibi” witnesses, including his wife, his sister, and his brother, whose combined testimonies placed the defendant at home at the time of the theft.

The jury chose to believe the state’s evidence rather than the testimonies of appellant’s relatives, and returned a verdict of “guilty as charged”.

I

Appellant contends that the trial court abused its discretion when it allowed the state to reopen the case after the state indicated there would be no rebuttal. We disagree.

At the close of the defendant’s case the trial court asked for rebuttal at which time the state said it had none. The trial court then called for a short recess before closing arguments. Immediately after the recess and before any arguments were made, the trial court in a bench conference with both attorneys, allowed the state to reopen the case. The rebuttal testimony (R. 153) merely clarified the prior testimony (R. 60) regarding the alleged slip of paper with Mr. Toumbacaris’s address on it, which was found in appellant’s wallet. The appellant then took the stand in surrebuttal and denied that such a slip of paper even existed.

Based on the facts as shown in this record, we find that the trial court was within the limits of its discretion in allowing the rebuttal testimony. Section 15-14-4, Code of Alabama 1975. Hall v. State, Ala.Cr.App., 352 So.2d 40 (1977); Crow v. State, Ala.Cr.App., 365 So.2d 1254 (1978), cert. denied, Ala., 365 So.2d 1256 (1979).

II

Appellant also contends that the court committed reversible error in refusing two of appellant’s written requested jury charges.

A

One refused charge stated:

“The State must prove its charge and prove it beyond a reasonable doubt, by the evidence. The assertions of counsel are not evidence.”

We would agree with appellant that the failure to give this charge (when timely requested) or to cover same in the trial court’s oral charge could constitute reversible error in cases where improper arguments of counsel have been made by the prosecution and objected to by appellant. Lane v. State, 85 Ala. 11, 4 So. 730 (1888).

However, holdings on point with the instant case set out the contrary rule that where, as here, there are no contentions of improper argument by counsel, and no recorded objections to any arguments of opposing counsel, then the above charge need not be given. Peck v. State, Ala.Cr.App., 383 So.2d 209, 213 (1980); Howard v. State, Ala.Cr.App., 390 So.2d 1070, cert. denied, Ala., 390 So.2d 1077 (1980).

In discussing the ruling in Lane, supra, this court stated in Howard, supra, that:

“Appellant urges error by reason of the court’s refusal of defendant’s requested charge No. 10:
T charge you, members of the jury, that the Prosecution must prove its charge, and prove it beyond a reasonable doubt, by evidence. The assertions of counsel are not evidence.’
Appellant relies upon Morse v. State, 49 Ala.App. 203, 269 So.2d 916 (1972). In Lamar v. State, Ala., 356 So.2d 680, rev’g Ala.Cr.App., 356 So.2d 677, Justice Shores makes it clear that what was held in Lane v. State, 85 Ala. 11, 4 So. 730 (1888), relied upon in Morse v. State, supra, as to a similar charge, should be restricted to the circumstances shown in Lane in which there had been an improper argument by the prosecuting attorney. There is no contention here that there was any improper argument by counsel for the State. The record shows affirmatively that no objection was made as to any argument by counsel for either party. Charge 10 was properly refused. Brown v. State, Ala.Cr.App., 369 So.2d 56 (1979).”

Since the transcript in this case, likewise, reveals no improper arguments of counsel for either party, we follow the rule in Howard, supra, in determining that no error occurred in rejecting this jury charge.

B

Appellant also asserts as reversible error the failure to give his jury charge which stated:

“The Court charges the jury, if the jury upon considering all the testimony have a reasonable doubt about the defendant’s guilt arising out of any part of the evidence, they should find the defendant not guilty.”

This charge has been accepted as a correct rule of law which must be given when requested or covered by the trial court’s oral charge. Walker v. State, 117 Ala. 42, 23 So. 149 (1898); Sanford v. State, 37 Ala.App. 603, 75 So.2d 109, cert. denied, 261 Ala. 699, 75 So.2d 85 (1954).

This specific charge was clearly rejected by the trial court in the instant case. However, having thoroughly reviewed the transcript, it is our opinion that the legal principle involved was “substantially covered in the trial court’s oral charge.” (R. 162-168). In pertinent part the trial court instructed the jury at (R. 163, 164) as follows:

“A reasonable doubt is a term that addresses itself to your good common sense definitions which are just as good, if not better a lot of times, than the legal definitions lawyers or judges use. But a reasonable doubt is a doubt for which there is a reason, a reason that comes from that stand from what you have heard, the evidence, all of it, part of it or lack of it. If after considering all of the evidence, you have a doubt, then that is the kind of doubt that entitles someone to an acquittal. If you do not have such a doubt, then the State is entitled to a conviction. Another way of saying that is after listening to all of the evidence or part of it you ask yourself the question is Mr. Thompson guilty of larceny; is he the one? And if the answer that freely and naturally flows back to you is I doubt that he is and if that doubt comes from that stand, from what you heard, either all of what you heard or part of what you heard, then, that is kind of doubt, if you have such a doubt, that entitled someone to an acquittal.”

Thus there is no merit to appellant’s contention on this refused charge. This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    James Rolland MYERS, III v. STATE.
    4 Div. 812.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.
    Keith Watkins of Clower & Watkins, Troy, for appellant.

      Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Rape; sixty years.

Doctor T.K. Byrne testified that he-examined the prosecutrix, a blonde, around midnight November 19, 1979, in the emergency room of Baptist Hospital in Montgomery. He stated that the prosecutrix told him that between 6:40 and 8:00 P.M. that evening she had been tied with a rope, dragged into a corn field near her home in Brundidge, and repeatedly raped. Dr. Bryne’s examination revealed the following: a rope burn around the prosecutrix’ neck; a knot on one side of her nose; several bruises on her back; a three-quarter inch laceration in her vagina accompanied by a small amount of bleeding; and evidence of recent sexual intercourse.

Ms. Lacy Ann Mitchell testified that on the night in question she worked at a store near the prosecutrix’ home. Around 6:30 P.M. the prosecutrix entered the store and asked Ms. Mitchell for a ride home. Ms. Mitchell gave the prosecutrix a ride on her motorcycle to an intersection approximately one-half mile from the prosecutrix’ home.

The prosecutrix testified that after being dropped off at the intersection by Ms. Mitchell, she began walking home and sensed something behind her. When she turned, a man put his hand over her mouth and told her not to scream or he would kill her. The prosecutrix identified the appellant as her assailant. She stated that they fought and the appellant knocked her down. He placed a rope around her neck and dragged her by her hair and the rope about twenty-five yards to the edge of a corn field and a wooded area. He tied her hands behind her back, removed her bluejeans and panties, placed his toboggan over her head, and raped her three times.

The prosecutrix stated that the appellant talked to her a great deal, and that she talked back to him, saying whatever he wanted her to say so that she could get away from him.

As soon as the appellant let her go, she ran to her sister’s house. The prosecutrix told her family that she had been assaulted but she did not mentioned being raped. She notified the Brundidge Police Department of her attack and gave them a description of her assailant.

The Brundidge Police picked up the appellant about 3:45 A.M., on November 20 as he was hitchhiking.

Pike County Sheriff Harold Anderson, with the assistance of the prosecutrix, searched the area where the rape occurred and found some footprints in a ditch on the side of the road. Sheriff Anderson testified that he observed the appellant’s shoes and had made footprint comparisons several times in the past. He measured the length and width of the footprints found in the ditch as well as the dimensions of the appellant’s shoes and concluded that the footprints pointed out by the prosecutrix were made by the appellant’s shoes.

On voir dire examination, Sheriff Anderson testified that on November 20, around 4:00 A.M., the appellant was given his Miranda warnings and signed a waiver of rights form. No inducement, promise, hope, or reward was offered to the appellant. Sheriff Anderson testified that the appellant was in custody although he had not been arrested. He did not inform the appellant of the crime under investigation, but told him “that somebody had caught a girl” below town and that his description fit the one that had been given to him.

Pike County Deputy Sheriff Don Herring testified on void dire examination to a second statement made by the appellant on November 20, 1979, around 8:00 A.M. The appellant had been in custody about four hours. Deputy Herring gave the appellant his Miranda warnings. He testified that no inducement, promise, hope, or reward was made to the appellant to make the statement. The appellant signed a waiver of rights form. Deputy Herring told the appellant that a girl had been raped in the area and that they had a good description of the assailant. He informed the appellant that he was taken into custody and arrested because he was suspected of committing the crime. Deputy Herring asked the appellant if he wanted to make a statement to which the appellant replied that the had done nothing wrong. The appellant then made a statement which he wrote and signed.

In the presence of the jury, Sheriff Anderson and Deputy Herring repeated their voir dire testimony concerning the appellant’s statements. Both statements were admitted into evidence and read to the jury. In the first statement, the appellant said that he had arrived in the area before dark on November 19, 1979, and slept in a ditch alongside Highway 231. The appellant did not see any girls on a motorcycle and did not molest any girl. He stated that no one had worn his toboggan and some blonde hairs found in it were not his. The appellant consented to a search of his travel bag.

In the second statement, the appellant admitted that he was standing by the side of the road when a motorcycle with two girls on it came by. One of them got off the motorcycle and started walking down the road. The appellant approached her and spoke. They talked for a while and the appellant asked the girl if she wanted to have sex, to which he said she affirmatively replied. The appellant stated that they continued to walk down the road and talk. He said they went into a field where the girl disrobed and they had sex. The appellant stated that they kissed, the girl expressed a desire to see him again, and then she went into her house and he walked back to the highway. He said he walked down the highway until he got tired and had to sleep. A noise awakened him and he continued to walk. Shortly thereafter he was picked up by the police.

The contents of appellant’s travel bag were admitted into evidence, including a piece of rope, a toboggan, and appellant’s clothes.

Mr. William Landrum, a criminalist for the Department of Forensic Sciences was called to the witness stand to testify to analyses he had performed on items and specimens gathered in the instant case. Landrum said that his examination revealed the presence of semen on the appellant’s underwear of the same type found in the prosecutrix and on her panties. He also found traces of blood on the rope belt but could not identify it.

At the conclusion of the State’s case the appellant moved to exclude the evidence, and the motion was denied.

The appellant called Brundidge Police Officer Lige Hester to the witness stand. He testified that on November 19, 1979, between 7:00 P.M. and 7:30 P.M., he heard a bulletin on his police radio monitor at home concerning the instant incident. On November 20, around 3:34 A.M., he received a radio dispatch apparently concerning the location of someone fitting the description of the suspect. Officer Hester drove to a point about one hundred and fifty to two hundred yards from the intersection of Highway 231 and County Road 2 and picked up the appellant. The appellant fit the description broadcast earlier. He advised the appellant that they checked all hitchhikers in their jurisdiction. Officer Hester transported the appellant to the police station where they met Sheriff Anderson. The appellant made his first statement in Officer Hester’s presence with Officer Hester writing what the appellant said. After its completion, the appellant read and signed it.

Officer Hester testified that the blonde hairs discussed in the statement refer to those found on the appellant’s toboggan. He stated that Sheriff Anderson advised the appellant of his rights and what crime he was suspected of committing.

Officer Hester’s testimony concluded the presentation of the appellant’s case.

I

Appellant contends that the trial court erred in admitting his two statements. He argues that the waiver of his Miranda rights was not knowingly and intelligently made because he was not informed that he was a rape suspect.

The question whether a confession or inculpatory statement was voluntarily made is one of law, to be determined by the trial judge. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967); Bufford v. State, Ala.Cr.App., 382 So.2d 1162, cert. den., Ala., 382 So.2d 1175 (1980); Crawford v. State, Ala.Cr.App., 377 So.2d 145, affirmed, Ala., 377 So.2d 159 (1979). The trial court need only be convinced from a preponderance of the evidence to find a confession or inculpatory statement to have been voluntarily made. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Bufford, supra. The totality of the circumstances determines whether the accused has knowingly and intelligently waived his rights to assistance of counsel and to remain silent. Crawford, supra; Rodgers v. State, Ala.Cr.App., 365 So.2d 322, cert. den., Ala., 365 So.2d 334 (1978); Sullivan v. State, Ala.Cr.App., 351 So.2d 659, cert. den., Ala., 351 So.2d 665 (1977).

A defendant need not be apprised of the charge against him before he can knowingly and intelligently waive his rights and make a voluntary statement. Crawford, supra; Jemison v. State, 49 Ala.App. 289, 270 So.2d 836 (1972).

In the instant case, the record fully establishes the complete voluntariness of the appellant’s statements. His Miranda warnings were thoroughly covered and no improper influence, threat, intimidation, inducement, promise or hope of reward was made to obtain his statements. Bufford, supra; Cummings v. State, Ala.Cr.App., 374 So.2d 421 (1979). Consequently, both statements were properly admitted into evidence.

II

Appellant contends that the trial court erred in refusing to give several of his written requested charges asserting that sexual abuse in the first degree is a lesser included offense of rape. We pretermit discussion of this question because it is our judgment that appellant was guilty of the offense of rape, or he was guilty of nothing. Rape is defined as the unlawful carnal knowledge of a woman by a man, accomplished forcibly and against her will. Smelcher v. State, Ala.Cr.App., 385 So.2d 653 (1980); Collins v. State, Ala.Cr.App., 364 So.2d 368, cert. den., Ala., 364 So.2d 374 (1978); Section 13-1-131, Code of Alabama 1975. Proof of actual penetration is sufficient to sustain an indictment for rape as long as the other elements of the crime concur. Myhand v. State, 359 Ala. 415, 66 So.2d 544 (1953); Section 13-1 — 131, supra. Sexual intercourse is synonymous with carnal knowledge. Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976); Thomas v. State, 53 Ala.App. 232, 298 So.2d 652, cert. den., 292 Ala. 755, 298 So.2d 657 (1974).

The trial court is not required to charge the jury on a lesser included offense when the evidence offered at trial points either to the guilt of the accused of the offense charged in the indictment or to his innocence. An accused is entitled to have the jury charged on a lesser included offense only where there is a reasonable theory from the evidence to support the lesser offense. Jackson v. State, Ala.Cr.App., 375 So.2d 1271, cert. den., Ala., 375 So.2d 1274 (1979); Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, cert. den., 295 Ala. 410, 328 So.2d 321 (1976); Owens v. State, 29 Ala.App. 53, 191 So. 899, cert. den., 238 Ala. 519, 191 So. 903 (1939).

In the instant case, the testimony of the prosecutrix illustrated that the appellant forcibly perpetrated the sex act against her will and without her consent. The testimony of Dr. Bryne indicated that the vaginal injury inflicted upon the prosecu-trix was caused by sexual intercourse. No testimony was offered that it was caused by any means other than penetration. The appellant admitted having sexual intercourse with “a girl” but asserted that it was done with her consent. Consequently, the appellant was either guilty of rape or not guilty of any offense. Thus, he was not entitled to any of his written requested charges on sexual abuse in the first degree regardless of whether it is a lesser included offense to rape. The trial court committed no error in refusing to give those instructions.

Ill

We have examined the evidence in this case and find it sufficient to present a prima facie case of rape. Therefore, the trial court properly overruled appellant’s motion to exclude the State’s evidence. McMorris v. State, Ala.Cr.App., 394 So.2d 392 (1981); Smelcher v. State, supra; Long v. State, Ala.Cr.App., 370 So.2d 354 (1979); George v. State, Ala.Cr.App., 362 So.2d 1327 (1978); Section 13-1-131, Code of Alabama 1975.

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

AFFIRMED.

All the Judges concur.


text:
    Johnny HAMMOCK v. STATE.
    4 Div. 867.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    John M. Gruenewald, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Houston County returned an indictment against the appellant, Johnny Hammock, charging him with rape in the first degree. Appellant entered a plea of not guilty. A jury found the defendant guilty of rape in the first degree as charged in the indictment. The court duly sentenced the appellant to imprisonment in the penitentiary of the State Of Alabama for the term of his natural life. The appellant appeals to this Court.

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

No useful purpose would be served by a detailed statement of the sordid facts shown in this record of the trial of a twenty-six-year-old male person raping an eight-year-old girl child. Sufficient evidence was presented by the state to the jury to prove appellant’s guilt beyond a reasonable doubt of the offense of rape in the first degree. The appellant in his brief states three reasons why he thinks his conviction should be reversed. First, the trial court erred to his prejudice by allowing state’s counsel to ask leading questions to the victim of the rape; second, by overruling appellant’s objection and allowing a state witness to testify as to what the witness heard the victim say regarding her assailant, without definitely showing it to have been within earshot of the appellant; third, by commenting upon the evidence in overruling appellant’s objection to a statement made to the jury by state’s counsel in his closing argument.

The first error complained of by appellant is that he objected to state’s counsel asking leading questions to state’s witness, the victim of the rape. After the witness was asked qualifying questions on direct examination, the court ruled, as follows: “THE COURT: She is an eight-year-old girl and I am going to allow him to lead her. Go ahead.”

The trial court may, in its discretion, allow leading and suggestive questions to be made on direct examination. We have reviewed the direct examination, and the cross-examination, of this eight-year-old girl child, the victim of a rape, and find nothing in the record to indicate that the trial judge abused his discretion by allowing state’s counsel to propound leading questions to her. Puckett v. State, 213 Ala. 383, 105 So. 211; Myers v. State, Ala.Cr.App., 367 So.2d 550; Certiorari Denied, Ala., 367 So.2d 552; McElroy’s Alabama Evidence, 3rd Ed., Sec. 121.05(8); Myhand v. State, 259 Ala. 415, 66 So.2d 544; Peeples v. State, 50 Ala.App. 626, 282 So.2d 65.

The second contention of the appellant is that the trial court erred to his injury when it allowed state’s witness, Patricia Feggins, to testify over his objection that the injured party, a little eight-year-old girl child, said to Patricia Feggins, the witness, that: “She told me Jesus had raped her.” We quote from the record, during the direct examination of state’s witness, Patricia Feggins, by state counsel, Thomas W. Sorrells:

“Q Did someone come up to you and tell you something at that time?
“A Yes. Two little girls.
“Q After you talked to the little girls, did you go anywhere?
“A Yes.
“Q Did you go to where a little girl was sitting in a lawn chair?
“A Yes, sir.
“Q Describe to the Court and Jury what her appearance was at that time.
“A She was laying in the chair bloody.
“Q Tell us where you saw the blood on her, Patricia?
“A All over.
“Q Now, did you ask her what had happened?
“A Yes.
“Q At that time, did you see anyone around the side of the house?
“A Yes.
“Q Where was this person standing in relation to where the little girl was?
“A In front, facing the house.
“Q Had you seen the little girl before she was in the chair, did you see her come and get in the chair or —
“A No. She was there when I got there.
“Q Did you ask her what happened?
“A Yes.
“Q What did she say happened?
“MR. GRUENEWALD: We object to that on the grounds of hearsay, Your Honor.
“MR. SORRELLS: We will rephrase the question.
“BY MR. SORRELLS:
“Q Who was that person standing on the side of the house?
“A The dude they call Johnny Hammock, they call him Jesus.
“Q Do you see him anywhere in this Court Room?
“A Yes.
“Q All right. Would you point him out, please?
“A (Witness indicating.)
“Q This man right here?
“A Uh-huh.
“MR. SORRELLS: Let the Record show that she pointed to the Defendant, Johnny Hammock.
“BY MR. SORRELLS:
“Q Now, did you ask the little girl what happened to her then?
“A Yes.
“Q What did she say?
“MR. GRUENEWALD: We object to that on the grounds of hearsay, Your Honor.
“MR. SORRELLS: That was in the Defendant’s presence, Your Honor. And it also shows_can we approach the Bench?
“(Thereupon, an off the Record discussion was held between the Court and the Attorneys of Record. Upon completion of said discussion, the following proceedings were had, to-wit:)
“BY MR. SORRELLS:
“Q Was Johnny Hammock there at the time you asked what happened to her?
“A Yes.
“Q What did she say then?
“MR. GRUENEWALD: We object to that, unless it can be shown that he heard that.
“THE COURT: You say he was there in your presence and her presence?
“THE WITNESS: Yes. He was standing facing the house.
“THE COURT: How far away was that?
“THE WITNESS: The house was, the chair was here and like that was the house. It wasn’t too far from the chair.
“THE COURT: Just point out how far.
“THE WITNESS: Like the chair was here and that is the house.
“THE COURT: That close, just right there?
“THE WITNESS: Uh-huh.
“THE COURT: Okay. And, he was there that close to you and the little girl at the time she told you this?
“THE WITNESS: Yes.
“THE COURT: I overrule you.
“MR. GRUENEWALD: Your Honor, I would like to further make an objection to it being hearsay, this testimony is hearsay. And besides that, the witness is here too, Miss Feggins said something and the District Attorney could have asked her.
“THE COURT: I understand that. But, as I understand from this testimony, it was in the presence of this Defendant, which takes it out of the hearsay rule.
“MR. GRUENEWALD: I object most respectfully.
BY MR. SORRELLS:
“Q You say the chair was at the corner of the house?
“A It was in the middle of the house.
“Q Okay. All right. Now, did you ask her what happened?
“A Yes.
“Q What did she say?
“MR. GRUENEWALD: I object.
“THE WITNESS: She told me Jesus had raped her.
“BY MR. SORRELLS:
“Q Did you ask her who did it?
“A I asked her who was Jesus and she said there he stands right there. And, she was screaming and hollering.
“Q All right. Did she point to the Defendant at that time?
“A Yes.
“MR. GRUENEWALD: We object and move to exclude all that.
“THE COURT: I understand you have already placed your objection and you have placed it in the Record and that is sufficient.
“MR. GRUENEWALD: Yes, sir.”

It further appears from the record that the injured victim of the crime, at the time the statement was made, was at or near the scene of the crime, had blood all over her body, was screaming and hollering, and the appellant was present. The victim of the crime was present in court, had testified as a witness in the trial of the appellant against him, and was subject to cross-examination by appellant’s counsel, and the court did nothing to limit the extent of appellant’s right of cross-examination. Hearsay does not include statements of witnesses in the present trial who are subject to cross-examination by the party against whom the statements are offered. We hold that the trial court did not err when it overruled appellant’s objection to, and motion to exclude the witness’ statement that: “She told me Jesus had raped her.” Pitts v. State, 261 Ala. 314, 74 So.2d 232; Gray v. State, Ala.Cr.App., 364 So.2d 694; McElroy’s Alabama Evidence, 3rd Ed., 1977, Sec. 242.01(1), and authorities therein cited.

The third complaint contained in appellant’s brief is that the trial court erred to his prejudice by commenting upon the evidence in overruling appellant’s objection to a statement made to the jury by state’s counsel during his closing argument. Appellant argues that this action of the trial court is shown by the record on page 142 of the trial transcript. We have examined the record on page 142, and also the entire record, and do not find that the appellant made any objection to any comments on the evidence made by the trial judge. On page 142 of the trial transcript, at the close of state’s closing argument, we do find the following:

“MR. GRUENEWALD: We object to anything about a liar.
“MR. SORRELLS: We can show that the evidence shows that. And we can argue that.
“THE COURT: I think the evidence does state that, Mr. Gruenewald.
“MR. SORRELLS: Continues his closing argument to the Jury.”

There was no objection by the appellant to the statement made by the court, or motion to exclude the statement from the consideration of the jury, or a request to instruct the jury to disregard the statement. There is nothing presented to this Court for review. Gilliland v. State, 291 Ala. 89, 277 So.2d 901; Gould v. City Of Birmingham, Ala.Cr.App., 375 So.2d 1296; Barnett v. State, 51 Ala.App. 470, 286 So.2d 876; Certiorari Denied, 291 Ala. 773, 286 So.2d 890.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Woodrow HERRING v. STATE of Alabama.
    4 Div. 868.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Fred M. Tatum, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Woodrow Herring was indicted, tried and convicted of “assault in the first degree” in violation of § 13A-6-20(a)(2), Code of Alabama 1975. The trial court sentenced him to twenty years’ imprisonment and fined him twenty thousand dollars, pursuant to § 13A-5-ll(a)(4), Code of Alabama 1975.

Shortly after 6:00 a. m. on June 9, 1980, appellant arrived at the home of his former wife, Nyoka Herring, to return their eleven year old son, who had spent the weekend with his father, the appellant.

Under circumstances that were in dispute at trial, an acidic liquid was either splashed or thrown onto Nyoka Herring’s face and shoulders when she opened the door to greet her son and the appellant. Ms. Herring testified that the appellant threw the liquid on her as he stated “let’s see if anybody wants you now.” The appellant testified, to the contrary, that he accidentally spilled the liquid which he had found on Ms. Herring’s doorstep. He claimed that he tripped while attempting to carry the container of liquid into the house. He also stated that he had no idea the purple liquid was acid.

The state produced three of appellant’s co-employees whose cumulative testimony indicated that two days after the incident appellant returned to work and disposed of some “Drain Snake,” a commercial drain cleaner that contained sulfuric acid. No single witness saw appellant do this, but he was seen walking toward the storage room where the “Drain Snake” was stored and then hurriedly walking into the woods behind the plant (Ag Industries). A subsequent search of the storage room revealed that the “Drain Snake” had been removed. Moreover, sulfuric acid was detected in a soil sample taken from a discolored spot found in the wooded area behind the plant.

Appellant denied disposing of the “Drain Snake”, claiming that he often took walks in the woods behind the plant because he “[had] a lot on [his] mind.”

Appellant produced evidence of his good character and his good reputation in his community. However, he did not deny that on previous occasions he had cut the brake lines on Ms. Herring’s car, and had put sugar in the gas tank, and had even hit Ms. Herring in the face at a local shopping mall. He explained that these “childish stunts” were part of his effort to discourage Ms. Herring’s relationship with another man.

As a result of the acid splashed or thrown onto Ms. Herring, she lost her right eye and suffered permanent disfigurement of her face and anterior chest. She testified that her medical expenses exceeded thirty thousand dollars.

I

Appellant’s contention that the trial court erred in sending the indictment to the jury room with the jury is without merit. The jury’s retirement with the indictment is an accepted practice and is entirely proper in Alabama. Stinson v. State, 56 Ala.App. 312, 321 So.2d 277 (1975); and cases therein cited; see, Wiggins v. State, 347 So.2d 543 (Ala.Cr.App.), cert. denied, 347 So.2d 546 (Ala.1977).

. Moreover, the trial judge gave the jury the additional caution “that this indictment is not evidence in this case.” (R. 170)

II

Appellant’s contention that the trial court erred in failing to send the appellant’s written charges back to the jury room with the jury is not supported in the record.

It is true that § 12-16-13, Code of Alabama 1975, mandates that these written charges be given to the jurors for use during their deliberations. For aught that appears in the recorded transcript this statutory requirement was met. (R. 184)

Moreover, appellant has not noted and we cannot find any objection made at the trial level or any ground in a post trial motion that would preserve this issue for our review. Potter v. State, 46 Ala.App. 95, 238 So.2d 894 (1970).

III

Appellant further contends that because Ms. Herring was not an “expert” as to the value of hospital services it was reversible error for the trial court to admit her testimony that her medical expenses had exceeded thirty thousand dollars.

In discussing this issue we must first point out that Ms. Herring’s testimony regarding her expenses (incurred because of her acid burns) was introduced to enable the trial court to set a fine pursuant to our new Criminal Code, § 13A-5-ll(a)(4), Code of Alabama 1975. This section provides the following limiting criteria with which the trial court can set a sentence to pay a fine for any felony:

“(4) Any amount not exceeding double the pecuniary gain to the defendant or loss to the victim caused by the commission of the offense.” (Emphasis supplied)

The prosecution was, therefore, justified in attempting to introduce “legal evidence” of the victim’s loss.

The question remaining is whether or not Ms. Herring’s undisputed testimony was “legal evidence”.

We would agree with appellant that Ms. Herring was not qualified to discuss the “reasonableness” or the “value” of the medical services she received. However, she was competent to testify as to the amount she spent (her losses) as a result of the injuries caused by the appellant. This is exactly what she did. She only gave testimony of a fact within her direct knowledge and the accuracy of such testimony was never challenged in the trial court.

Moreover, the imposed fine of twenty thousand dollars by the trial judge was an amount well below the permissible maximum (at least $60,000) based on § 13A-5-11(a)(4). For this reason we are not compelled to further review the fine as set below. Jenkins v. State, 367 So.2d 587 (Ala.Cr.App.1978), cert. denied, 367 So.2d 590 (Ala.1979).

IV

Appellant presents only one additional argument that merits discussion. In brief and in oral argument the appellant makes a general claim that his trial counsel was incompetent. Appellant criticizes his trial counsel’s few objections to evidence introduced by the prosecution and fewer objections to numerous leading questions by the prosecution. In one part of his argument he complains of inadequate cross-examination of the state’s witnesses, but in summary he admits that his trial counsel “did a commendable job on cross-examination of each witness presented to him.” This was also admitted in oral argument before this court by appellant’s attorney on appeal.

We make note of the fact that appellant speaks only in generalities, citing no specific incidences of misconduct by his counsel that might have prejudiced his case. Nevertheless, we have carefully reviewed the record on appeal and can find nothing to indicate that appellant received other than adequate, competent and effective representation at trial. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974); Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980).

Since the arguments discussed above have been resolved against appellant and the remainder of his contentions are without merit, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . Appellant’s trial counsel questioned the application of this section to felonies other than theft type crimes. While we recognize that some other states (e. g., New York and Michigan) have similar code provisions which are applied only to crimes in which property or money is taken from the victim, we must point out that those provisions only refer to gain by the defendant and are only used as an incentive to defendants to return such property or money. See Michigan Revised Criminal Code §§ 1501, 1505; and New York Revised Penal Law §§ 80.00, 80.05 and commentary.
      The Alabama Legislature, however, has gone further in adding the “or loss to the victim” language to our statute as was done in New Jersey. See New Jersey Code of Criminal Justice § 2C:43-3(e). Our interpretation of this language and the fact that the code section and the commentary which follows make no mention of limiting it to only certain felonies lead us to believe that the intent here was to broaden our statute to give the trial court wide discretion in imposing fines as additional punishments for and deterrents to any crime.


text:
    Nell BROOKS and Sharon Brooks v. CITY OF BIRMINGHAM.
    6 Div. 115.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Roger C. Appell of Bryan & Appell, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
   DeCARLO, Judge.

Both appellants were charged with assault and battery and disruption of a place of business, in violation of Sections 36-5 and 35 — 46, respectively, of the General Code of the City of Birmingham, Alabama, 1964, as amended. In addition, appellant Nell Brooks was charged with carrying a concealed weapon in violation of § 56-1, General Code, supra.

Appellants were tried jointly on all five charges in Birmingham Municipal Court and, upon convictions in that court, appealed to the Jefferson Circuit Court for a trial de novo. Both appellants were again tried jointly in circuit court, over the objection of their attorney. They are now represented by different counsel. The jury found Nell Brooks guilty of carrying a concealed weapon and assessed a $250.00 fine. Sharon Brooks was convicted of assault and battery and also fined $250.00. The trial judge sentenced each appellant in accordance with the verdict of the jury and meted out an additional penalty of thirty days in the city jail for each. Because a single issue raised by appellants, in our judgment, entitles them to a new trial, a further recitation of the facts is unnecessary.

I

Appellants contend that, pursuant to §§ 15-14-20 and 12-22-114, of the Alabama Code, 1975, they had an absolute right to be tried separately in circuit court, and that the trial judge erred by denying their motion for severance. We agree.

Section 15-14-20, Code of Alabama, supra provides the following:

“When two or more defendants are jointly indicted, they may be tried either jointly or separately, as either may elect.”

A separate trial for jointly-indicted defendants, when demand is timely made, is an unqualified right. Pendley v. State, 36 Ala. App. 169, 53 So.2d 811 (1951).

Although appellants were not indicted, jointly or otherwise, but were brought before the circuit court on a Complaint by the City of Birmingham, we believe that their right to separate trials attached upon their appeals for trial de novo in the circuit court by virtue of § 12-22-114, Code of Alabama, supra. That section provides as follows:

“On the trial of such appeals (those for trial de novo in circuit court), the court shall be governed by the same rules as to evidence, practice, finding of the jury and punishment as if the case had originated in that court.”

Because Section 12-22-114, supra, mandates that the practice in the circuit court on trials de novo be identical to original circuit court proceedings, appellants were entitled to the separate trials provided by Section 15-14-20, supra. This issue was properly preserved for review, as shown by the following excerpt from the record.

“MR. WILKINSON: We do have a slightly different circumstance than we had previously, at least in cases I have been involved in, in that we not only have multiple charges being joined, as I understand it, in one trial, but we also have multiple defendants being joined in one trial, and we respectfully object on behalf of each defendant separately and severally, Judge, to the joining of both multiple charges and multiple defendants in the same prosecution.
“THE COURT: I think I’ll let him go back. I think I’ll just consolidate two of them. Two defendants tried at the same time in the court below, five cases total. Take her upstairs.”

We recognize that the application of Rules 13.3 and 13.4 of the Proposed Alabama Rules of Criminal Procedure (Advisory Committee Draft 1977) would require a different result.

The application of Proposed Rule 13.3 and 13.4 would require a hearing on the possible prejudice caused by consolidation of cases involving multiple defendants for trial. The matter would then finally rest in the trial judge’s discretion, and multiple defendants would not have the unqualified right to demand severance. Until the adoption of the proposed rules, however, we are constrained to hold that appellants were entitled to separate trials, even in the absence of a showing of prejudice on their parts.

The judgment of the Jefferson Circuit Court is hereby reversed and the cause remanded for new trials.

REVERSED AND REMANDED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Woody WOODARD v. STATE.
    6 Div. 173.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.

      Charles E. Robinson of Church, Trussed & Robinson, Pell City, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Blount County for murder in the first degree in January of 1979. Appellant received a trial by jury, a guilty verdict was returned for manslaughter in the first degree, and he was sentenced to ten years imprisonment in the penitentiary. The trial judge charged the jury on the four degrees of homicide.

The evidence shows that the deceased, Dallas Reeves, and an acquaintance, Joe Walker, had been drinking heavily on the morning of Sunday, June 18, 1978. After consuming a bottle of wine they went to the Dogwood Inn in Oneonta, Alabama, where they drank whiskey. Appellant came by the Inn and was approached by the two men who asked that he drive them to a bootlegger in St. Clair County, Alabama, to buy some more whiskey. The deceased bought the whiskey and the three men drank most of it while riding around in appellant’s pickup truck. What happened on the way back, which led to Dallas Reeves’ death, is in dispute.

Joe Walker testified that he was very intoxicated on that day. He testified that all he could remember was that he came to after passing out and saw appellant with his foot on the deceased’s stomach. He stated that, upon seeing this, he told appellant to “leave him alone, you are going to kill him.” Joe Walker also testified that appellant fought with him at the time.

Joe Walker testified that his memory was vague as to the incident. Deputy Sheriff McLain testified that Joe Walker told him shortly after the incident that he did not remember anything. He further testified that, when he talked to Joe Walker, Joe Walker’s face was bruised or cut.

Deputy Sheriff Robert Walker testified that appellant came to the radio room at the Sheriff’s Office on Sunday morning, June 18, 1978, and told him that he wanted the deputy to get “two drunk S.O.B.’s” out of his truck. Deputy Robert Walker stated that appellant told him that he had beat them up, but they still would not get out of his truck. Appellant denied ever stating this.

Deputy Robert Walker stated that, when he went to the truck in the parking lot, he found Dallas Reeves unconscious without a pulse. He then summoned the coroner. He further testified that appellant admitted beating up the deceased at that time. Appellant denied making any kind of admission. Deputy Walker further testified that there was blood on appellant’s shirt and pants, but not on his hands. On cross-examination Deputy Walker admitted not putting appellant’s admission of hitting the deceased in his report because it was a “hurry up report.” He also testified that appellant denied hitting the deceased in a statement he made at the courthouse an hour later.

Appellant testified that he was driving the deceased and Joe Walker when something went wrong with the carburetor on the truck. He stated that he stopped the truck and got out to fix it when Joe Walker and the deceased got into a fight. He said he assisted both men back into the truck and drove off. Once he reached Oneonta, he went to the Sheriff’s Office because the two men would not get out of the truck. Appellant denied hitting the deceased or telling Deputy Walker he hit him.

Appellant had a scratch on his hand. He testified that this was done earlier that week while working on his car. Appellant’s employer, Mr. Joe Marsh, testified that he saw appellant cut his hand while working on his truck.

At the trial the Coroner of Blount County was asked to testify as to the cause of death of Dallas Reeves. Appellant’s counsel objected and the objection was sustained. The prosecutor then sought to establish a predicate by questioning the coroner on his education and background. The coroner testified that he had a degree in Mortuary Science from the University of Kentucky and had thirty-five years experience as an embalmer. He testified that he had examined many bodies and had signed many death certificates during his thirty-five years of experience. Following this predicate the prosecutor began to question the coroner as to the cause of death of Dallas Reeves.

The prosecutor asked the coroner what was listed on the death certificate as the cause of death. Appellant’s counsel objected on the grounds that the best evidence would be the certificate. The prosecutor then re-phrased the question and asked:

“Q. Do you have a judgment or opinion as to the cause of death of Dallas Reeves?
“A. Yes, sir, I do.
“Q. What is it?
“MR. CHURCH: Your Honor, I renew my objection.
“THE COURT: You make the same objection you previously made?
“MR. CHURCH: Yes, Your Honor.
“THE COURT: Overruled.
“Q. The judge says you may answer.
“A. In my opinion, the cause of death of Dallas Reeves was shock and due to internal hemorrhage from multiple traumatic blows to the mid-abdomen.”

Appellant claims the trial court committed an error by overruling his objection because the coroner was not qualified to answer the question.

By appellant’s counsel’s renewal of the objection, he made a specific objection on the basis that the answer violated the best evidence rule. A specific ground of objéction waived all other grounds. Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied, 376 So.2d 1117 (Ala.1979); Johnson v. State, Ala.Cr.App., 365 So.2d 123; Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, 360 So.2d 367 (Ala.1978); Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973). See Alabama Digest, Criminal Law, § 695(5). An accused who objects to a question is bound by the grounds asserted to the trial court for that objection. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475 (1974), cert. denied, 293 Ala. 772, 309 So.2d 485 (1974), cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1974). Therefore, appellant is precluded from arguing on appeal that the coroner was not qualified as an expert to answer the question. Appellant’s objection was properly overruled.

On cross-examination the counsel for appellant brought out that the coroner based his opinion on an external view of the deceased’s body and the State Toxicologist’s report. Appellant moved to exclude the coroner’s testimony on the grounds that it was based on hearsay evidence. The trial court reserved ruling on the motion because the testimony was already in evidence. Appellant took exception to the ruling. If, on cross-examination, it is discovered that a witness based his decision on hearsay evidence, then the proper remedy is a motion to exclude that testimony. Bufkins v. State, 20 Ala.App. 457, 103 So. 902.

The coroner stated that he based his decision on an observation of the external portion of the body and the autopsy report from the State Toxicologist. In the case of Swanson v. State, Ala.Cr.App., 346 So.2d 1166, the Court of Criminal Appeals upheld the trial court’s ruling that a coroner of eight years experience, who had the opportunity to observe hundreds of people who had died of natural and unnatural causes, was sufficiently qualified as an expert to give his opinion as to the cause of death in that case. The court stated:

“This Court on appeal will not disturb the trial judges’ findings of expert qualifications vel non unless there is a clear abuse of this discretion. King v. State, 266 Ala. 232, 95 So.2d 816.
“Whether a witness can acquire sufficient expert knowledge within a given field of endeavor, not ordinarily ventured into by a layman, depends upon an individual’s training and experience. This subject is fully covered in this Court’s opinion in Cobb v. State, 50 Ala.App. 707, 282 So.2d 327, and authorities therein cited.
“We are of the opinion that the trial court properly permitted Coroner Phillips to give his opinion as to the cause of death in the instant case.”

In the case at bar the coroner had thirty-five years experience viewing and embalming bodies that died of natural and unnatural causes. He has a degree in Mortuary Science from the University of Kentucky and has had numerous courses in anatomy. The coroner, Thomas Vaughn, was, as the trial court properly ruled, qualified to give his opinion as to the cause of death of Dallas Reeves.

As in the case of Swanson v. State, supra, it is not essential that the coroner perform the autopsy himself for his opinion as to the cause of death to be admissible. The fact that the coroner used the State Toxicology report in conjunction with his own personal observation does not render the testimony inadmissible and subject to the motion to exclude.

Appellant lastly contends that the trial court committed reversible error by failing to charge the jury on the burden of proof of guilt beyond a reasonable doubt following each and every charge of the court as to the elements and verdict form of murder in the first degree and the lesser included offenses including murder in the second degree, manslaughter in the first degree, and manslaughter in the second degree. At the close of the trial court’s jury charge, appellant timely excepted to the charge. The trial court acknowledged appellant’s exception and proceeded to charge the jury on reasonable doubt as follows:

“Ladies and gentlemen of the jury, at the request of the defendant, the Court will give you additional charges in writing. The Court considers these to be correct statements of law, and are to be considered by you in addition to, and with the Charge previously given by the Court, in its oral charge.
“I charge you, Ladies and Gentlemen of the Jury, that the Defendant is presumed to be innocent until the evidence convinces the jury beyond all reasonable doubt that he is guilty; and if, upon a consideration of all the evidence, the jury have a reasonable doubt, growing out of all the evidence, you must acquit the defendant of murder in the second degree.
“I charge you Ladies and Gentlemen of the Jury, that if any member of the Jury has a reasonable doubt of the guilt of the defendant growing out of any part of the testimony on a consideration of all the testimony, then the jury cannot find the Defendant guilty of murder in the first degree.
“I charge you Ladies and Gentlemen of the Jury, that if there is a reasonable probability of Defendant’s innocence, then this is just foundation for a reasonable doubt, and authorizes an acquittal.
“I charge you Ladies and Gentlemen of the Jury, that the Defendant is presumed to be innocent until the evidence convinces the Jury beyond all reasonable doubt that he is guilty and if, upon a consideration of all the evidence, the jury have a reasonable doubt, growing out of all the evidence, you must acquit the defendant of murder in the first degree.
“I charge you Ladies and Gentlemen of the Jury, that a ‘reasonable doubt’ is defined to be a doubt for which a reason can be given.”

Following the additional charges no exceptions were taken. Appellant now claims that the charge on reasonable doubt was insufficient because it was not given after each charge on the elements of the offense and each lesser included offense. When appellate courts review an exception to a portion of a trial court’s jury charge, the decision of the question must be made upon the basis of a consideration of the charge in its entirety. McCovery v. State, Ala.Cr.App., 365 So.2d 358; Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782; cert. denied, Ala., 358 So.2d 791; Johnson v. State, 33 Ala.App. 159, 31 So.2d 667. See Alabama Digest, Criminal Law, § 622(1).

In the court’s original charge to the jury he fully charged on the law of reasonable doubt:

“The burden of proof is on the State of Alabama in this case. A defendant is always presumed to be innocent, and the fact that he has been arrested and indicted and brought before the bar of justice does not create any presumption against him at all. He comes into court clothed with a presumption of innocence, and that presumption of innocence remains with him throughout the trial until is it overcome by evidence which proves his guilt to each of you beyond a reasonable doubt and to a moral certainty. The burden is on the State of Alabama to show from the evidence the guilt of the defendant of ■ one of the offenses charged in the indictment beyond a reasonable doubt and to a moral certainty before you would be authorized to convict him.
“When I say the State is under the burden of proving guilt beyond a reasonable doubt and to a moral certainty, that does not mean that the State must prove an alleged crime or offense beyond every imaginable or speculative doubt, or beyond all possibility of mistakes, because that would be impossible. But a reasonable doubt means an actual, substantial doubt arising out of the testimony or from a lack of testimony in the case. It is a doubt for which a reason can be assigned. The expression ‘to a moral certainty’ means practically the same thing as beyond a reasonable doubt, because if you are convinced to the point where you no longer have a reasonable doubt, then you are convinced to a moral certainty.”

Appellant filed a motion for a new trial. The motion was taken under advisement and subsequently overruled. The decision on a motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing such decision, the Court of Criminal Appeals will indulge every presumption in favor of the correctness thereof. Ala.Dig. Crim. Law, § 911.

We have treated the major contentions of appellant that he is entitled to a reversal and hold such contentions are without merit. In addition 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: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Frank Lee BARNES, Jr. v. STATE.
    6 Div. 231.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    John A. Bivens of England & Bivens, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of robbery and a sentence to imprisonment for twenty-five years.

The alleged victim was Effie McGee, who testified that about 11:30 A.M. February 5, 1979, while she was in charge of McGee’s Grocery Store, of which she was an owner, two men came into the store and the following occurred:

“Well, it was two men that came in, and one stood at the door and the other one came around to the counter and said, ‘You know what this is, open up the register,’ and he had a gun in his hand.
“Q. Do you see that person today, Ms. McGee?
“A. No, I don’t. He had something over his — a mask or stocking over his face and I couldn’t see it.
“Q. Alright [sic]. Now, you say you can’t tell whether or not this is the man that came in McGee’s Grocery Store that morning or not?
“A. No, I can’t testify that this is the man.
“Q. You can’t testify that this is the man?
“A. No, I can’t.
“Q. What did the man do that had the gun that came into the store?
“A. He just came around the counter and he had that gun on me, and he took the money from the register.
“Q. Did you open the register?
“A. Yes, I did.
“Q. Now, after you opened the register what happened?
“A. Well, he made me move over and he took the money.
“Q. What was the other man doing that you said that came inside?
“A. He was standing at the door looking around. He was at the door ready to go. “Q. Yes ma’am. After this man with this gun took the money from the register what happened then, if anything? “A. He just went out and they ran. “Q. Did you see where they ran after they left your store?
“A. Well, toward Tuscaloosa. From the store it was down to the right, you know, and they went out of the store.
“Q. Would that be headed down Highway 216?
“A. Yes, sir.”

According to the witness, she promptly “called the law” but never was able to identify either of the men. It appears that no question has been raised, either on the trial or on appeal, as to the fact that a robbery occurred, as Ms. McGee testified, and that the two men unidentified by her were acting in concert in the commission of the robbery.

Other than Ms. McGee, the only eyewitness to the robbery who testified in the case was Fred Foster, who, as a witness for the State, said positively and unequivocally that he and the defendant were the two robbers. According to Foster, about 8:00 on the morning of the robbery the defendant drove his automobile to the home of the witness in Lincoln Park in Tuscaloosa and told the witness of his plan to rob the store; they found “a ski mask” and improvised a disguise out of a stocking and a wig, made arrangements to leave Lincoln Park in the automobile of defendant, bought gasoline for the automobile and in the course of time arrived at McGee’s Grocery Store at Peterson. They parked the automobile, put on their disguises as previously indicated, and committed the robbery. The witness said he personally held the gun and “told the lady to give me the money, and she opened the cash register and said, ‘There it is, get it,’ ” that he reached into the register and obtained the money, and then he and defendant left the store. They went to the automobile in which defendant had left the keys, and they immediately drove away in the automobile. The witness was driving as they left. While the witness was driving the automobile and before they had gone a great distance, the defendant threw from the automobile the ski mask that the witness had used and the stocking and cap that defendant had used as disguises. The witness said that thereafter, while they were in or near Holt, “We changed seats in the car and I pulled off the pants and changed pants and stuff that I had on, and he drove the rest of the way.” According to further testimony of Foster, he and defendant divided the money that had been taken from the cash register.

The only issue expressly presented by appellant is thus stated in his brief:

“The State failed to meet its burden of proof and did not establish the guilt of the defendant beyond a reasonable doubt; the verdict of the jury was therefore contrary to the law and the evidence and the trial court’s verdict should be reversed.”

Appellant correctly argues in his brief that the question of the sufficiency of the evidence to support the verdict and judgment is to be viewed with special reference to the testimony of Foster, an admitted accomplice, that special consideration should be given to the established law that a conviction of a felony cannot legally be obtained “on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and that such corroborated evidence, if it merely shows commission of the offense or the circumstances thereof, is not sufficient.” Code of Alabama 1975, § 12-21-222. We now consider the question whether there was other evidence in the case that corroborates the testimony of Foster as to the guilt of defendant, as mandated by the cited statutory law.

There was testimony that soon after the robbery, law enforcement officers proceeded to investigate and as they were moving by automobile on the Holt-Peterson Road, in the direction of the store, they found articles of clothing that consisted in part of a ski mask and a stocking cap, which were afterwards examined by an expert who testified that the ski mask contained hair that was similar to the hair of Foster and that the stocking contained hair that was similar to the hair of defendant.

A witness for the State testified that about 11:30 A.M. or noon on February 5, 1979, he was traveling on the Holt-Peterson Road and saw an automobile in which “two black males” were riding, and he observed that there was “a lot of fumbling around in the car.” He was shown photographs of an automobile which other testimony showed were photographs of defendant’s automobile, and the witness said:

“Yes, sir, this is the car that I saw, specifically because of the pinstripe. I do some pinstriping myself and this is odd pin-striping to be on the car. That’s what caught my eye.”

Linton Richie, who lived in the same community as Frederick Foster, testified he knew defendant and that on the morning of the robbery, between 9:30 and 10:30, he saw them “pulling out from Frederick Foster’s home” with defendant in the driver’s seat, that he attempted to stop them to talk with them, but defendant answered back and said, ‘I’m in a hurry, man,’ and “sped on off up the road.”

An employee of a service station in Tuscaloosa testified that a man whom he identified as the defendant and Fred Foster, whom he knew, came into the service station about 10:30 or something to eleven,” and bought gasoline for the automobile. On cross-examination, he said:

“Q. Okay. Now, you stated that you saw that old automobile on the 5th of February?
“A. No, I didn’t say on the 5th. I saw it on that day that I put some gas in it that morning.
“Q. Whatever day — what was?
“A. The day before the robbery.
“Q. The day before the robbery?
“A. Uh — uh (yes).”

It is unfortunate that the ambiguity remains as to whether it was on the same day of the robbery, but before the time of the robbery, or whether it was on the day before the day of the robbery, but there seems to be no issue between the parties as to this.

Without consideration of whether there is additional evidence corroborative of the testimony of Foster as to the guilt of defendant, we find that that which we have stated constitutes sufficient compliance with the statutory law on the subject. It has as much strength as, if not more than, the law requires.

“Whether such corroborative evidence exists is a question of law to be determined by the trial court, its probative force and sufficiency being questions for the jury. Berry v. State, 231 Ala. 437, 165 So. 97. The corroborative evidence need not be strong nor sufficient in itself to support the conviction, since the sole criterion is only that it legitimately tends to connect the accused with the offense. Goodman v. State, 52 Ala.App. 265, 291 So.2d 358. “Also, corroboration of an accomplice’s testimony may be shown by circumstantial evidence. Hudson v. State, 49 Ala.App. 282, 270 So.2d 828; Pryor v. State, 47 Ala.App. 706, 260 So.2d 614.” Thompson v. State, Ala.Cr.App., 374 So.2d 377, 384, aff’d 374 So.2d 388 (1979).

We take note of the evidence introduced by the defendant, which consisted exclusively of testimony in the nature of an alibi; it was not directed exclusively to the location of the defendant on the day and the occasion of the robbery but largely to February 3, 1979, a Saturday, which apparently afforded contradiction of some inference from evidence to the effect that defendant was with Foster on a visit of Foster to the McGee store on February 3. Whatever worth there was in the evidence for the defendant was within the province of the jury to decide.

We have searched the record in vain for error prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


text:
    Frank Douglas BATY v. STATE.
    6 Div. 470.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.

      L. Drew Redden, and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Jefferson County, Alabama, for possession of 89.4 grams of marijuana and possession of 250 tablets of methaqualone, a controlled substance. Appellant was represented by retained counsel and waived trial by jury. He was tried and found guilty by the court and sentenced to three years imprisonment in the penitentiary.

On October 23, 1979, Officer James L. Sims of the City of Birmingham Police Department obtained a search warrant for the residence located at 921 Shades Crest Road in Jefferson County, Alabama. The pertinent part of the affidavit which was the basis of the search warrant reads as follows:

“. . within the past 48 hours I have talked to a confidential, reliable informant who has given information over the past two years which has proven to be true and correct and which has led to narcotics cases and convictions. Said informant stated to me that he had been present at 921 Shades Crest Road, Jefferson County, Alabama, the residence of Frank Baty, within the past 24 hours and while present at said address, he observed a quantity of marijuana being kept and sold by Frank Baty. Said informant is familiar with the appearance of marijuana and has proven his familiarity to my satisfaction.
“Based on the above reasons, I have probable cause to believe and do believe that marijuana is presently kept at 921 Shades Crest Road, Jefferson County, Alabama, in violation of the Alabama Uniform Controlled Substances Act.”

On October 23, 1979, Officer Sims, along with Sergeant Howard Brooks of the Jefferson County Sheriff’s Department, went to 921 Shades Crest Road in Jefferson County, Alabama, at approximately 11:00 a. m. to execute the search warrant. They knocked on the door which was opened by someone inside. Officer Sims asked for Frank and then entered the house. Appellant was in the bathroom shaving at that time. Three other people were in the living room.

Officer Sims and Sergeant Brooks conducted the search of the house, which was a two bedroom house. In one of the bedrooms Sergeant Brooks found two hundred fifty (250) tablets lying on a dresser which he immediately identified as “qualudes.” Seconds later a white plastic bag which contained 89.4 grams of what was later identified as marijuana was found on the dresser.

Appellant filed a motion to suppress the evidence found in the search. Just prior to the trial a hearing was held on the motion to suppress. Officer Sims was the only person to testify. The motion to suppress was denied.

Appellant contends that the motion to suppress should have been granted because the information received from the informant that was used in the affidavit was not “fresh.” This contention brings into issue whether the issuing officer of the search warrant had sufficient probable cause to believe that the contraband was where the informant stated it was.

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 sets forth a two “prong” test to determine whether the issuing authority of a search warrant had sufficient probable causé to issue the search warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. One of these “prongs” is that the issuing authority of the search warrant must be informed of the underlying circumstances from which the affiant concluded that the informant is a credible person or his information reliable. Appellant does not contend on appeal that this “prong” of the “Aguilarr test was not met.

The affidavit by Officer Sims states that the informant had given him true and correct information over the past two years which led to convictions in narcotics cases. Officer Sims testified on voir dire that the informant had during the past five or six years given him information which led to five convictions of drug offenders. In addition to this Officer Sims testified that the informant had given other officers information on so many occasions that he could not guess how many times. The information contained in the affidavit was sufficient to authorize the issuing authority to conclude that the informant was reliable.

The next “prong” of the “Aguilar” test is that the issuing authority of the search warrant be informed of the underlying circumstances from which the informant concluded that the items to be seized were where he claimed they were. One of the underlying circumstances which should be examined by the issuing authority is whether the information provided by the informant is fresh as opposed to being remote. Davis v. State, 286 Ala. 117, 237 So.2d 640; Mitchum v. State, Ala.Cr.App., 384 So.2d 1193.

In the case at bar, Officer Sims stated in the affidavit that the informant had been to the residence within twenty-four (24) hours before talking to him. Officer Sims also stated in the affidavit that he had talked to the informant within the past forty-eight (48) hours. On voir dire Officer Sims testified that at most only seventy-two (72) hours had elapsed between the time he received the information and the issuance of the search warrant.

In a similar case to the one at bar an affidavit which stated informant had been at a residence “within the last week” was held not to be too remote to provide sufficient probable cause to issue a search warrant. Mitchum v. State, Ala.Cr.App., 384 So.2d 1193, cert. denied 384 So.2d 1205 (Ala.1980). Under the facts and circumstances of this case the information was sufficiently “fresh” for the issuing authority to conclude that the contraband was where the informant stated it was.

Appellant next contends that it was error to overrule the motion to suppress the evidence of the tablets found in the bedroom because the affidavit on which the search warrant was based mentioned only marijuana. Having found that the officers were acting under a valid search warrant, they had the right to make a thorough search of the rooms in appellant’s house. Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353; Lucy v. State, 46 Ala.App. 484, 243 So.2d 756. “If during a lawful search under a warrant the police, searching in the manner authorized, find evidence of another offense not related to the crime for which the warrant was issued, it may nevertheless be lawfully seized.” Sheppard v. State, supra.

As stated in Dannelley v. State, Ala.Cr.App., 397 So.2d 555, released February 24, 1981, cert. denied, Ala., 397 So.2d 577, May 1, 1981:

“Seizable items which inadvertently come into view of the officer lawfully searching in connection with another crime, or who otherwise has a right to be where he is, may be retained and used in prosecution of the crime to which they relate if the officer is already in the constitutionally protected area. Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353; Lucy v. State, 46 Ala.App. 484, 243 So.2d 756; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.”

In the case at bar, Officer Sims and Sergeant Brooks were searching appellant’s residence under a valid search warrant. Officer Brooks was searching a bedroom when he found a number of white tablets, with a single score across them and “Lem-mon 714” written on the back. The tablets along with a bag of marijuana were lying in plain view on top of a dresser in the bedroom. Upon discovery of the tablets Sergeant Brooks exclaimed, “Look here what I’ve got, I found some Qualudes.”

The tablets found by Sergeant Brooks were found during the proper execution of a valid search warrant. The tablets’ apparent criminal quality was obvious to Sergeant Brooks as can be seen from his immediate exclamation identifying the tablets. Under these circumstances the tablets were admissible as evidence of the crime for which appellant was convicted. See Brantley v. State, 294 Ala. 344, 317 So.2d 345.

Appellant made a motion to exclude the State’s evidence which was denied. Appellant also moved the court for a new trial which was also denied. Appellant claims the denial of his motions was in error because the state failed to prove appellant’s knowledge of the presence of the controlled substances in the house.

In the prosecution for the possession of illegal drugs there must be evidence from which the trier of fact may conclude beyond a reasonable doubt that the accused knew of the presence of the drugs. Such guilty knowledge may, however, be established by circumstantial evidence. Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Knox v. State, 50 Ala.App. 494, 280 So.2d 200; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169; Fields v. State, Ala.Cr.App., 333 So.2d 861; New v. State, Ala.Cr.App., 337 So.2d 1355; Walker v. State, Ala.Cr.App., 356 So.2d 674, certiorari denied, Ala., 356 So.2d 677.

As stated in Walker v. State, supra, at 676:

“Because the element of knowledge is seldom susceptible to direct proof, it may be proved by evidence of acts or conduct of the accused from which it may fairly be inferred that he knew of the existence of the narcotics at the place where they were found. See authorities cited at 28 C.J.S. Supp. Drugs & Narcotics p. 300, fn. 87.
“ ‘The requisite knowledge may also be proved by the physical appearance of the accused, and his declarations, or admissions, and contradictory statements, and explanations made by him.’
“28 C.J.S.Supp. § 204.”

In the case at bar Officer Sims and Sergeant Brooks, upon entering the residence, found appellant shaving in the bathroom clothed only in a pair of pants. He stated he was getting ready to go to court. When asked for identification appellant went to the bedroom in which the tablets of methaqualone and marijuana were found and got his billfold which contained his identification. After being arrested appellant dressed himself with clothes from that same bedroom.

Officer Sims testified that he had known appellant for four years. He testified that, during the six months prior to the search he had seen appellant go in and out of the house. He testified that the house that was searched was the residence of appellant. Appellant, himself, after being arrested, jokingly offered to sell the house to Officer Sims.

During the search of the house the marijuana and tablets of methaqualone were found in plain view on the dresser in the bedroom which contained appellant’s billfold and clothes. Under the circumstances there was sufficient evidence to show the appellant had control of the premises and knew of the existence of the drugs.

While it is true that three other people were in the living room, there was no evidence to show that any of them resided there or that they had any connection with the drugs seized in the bedroom. In any event their presence has no bearing on the issue of possession since possession of illegal drugs is susceptible of joint commission and the guilt of the accused does not necessarily depend upon proof of his ownership of the drugs. Radke v. State, 292 Ala. 290, 293 So.2d 314.

Appellant did not testify on the motion to suppress or on the trial in chief. He offered no evidence in his behalf.

Under the circumstances there was sufficient evidence for the trial court to conclude that appellant had control of the premises, knew that the drugs were there, and, therefore, had possession of them. The evidence presented in this case was sufficient to sustain the conviction and the trial court did not commit error in overruling appellant’s motion to exclude the State’s evidence nor in overruling the motion for a new trial.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Tony WILLIAMS v. STATE.
    6 Div. 497.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.

      Lee S. Lovoy, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R, Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted, tried and convicted of robbery. Sentence was life imprisonment.

With guns blazing, three armed and masked men rushed into the West Oxmoor Branch of City National Bank in Jefferson County on October 5, 1979. Two of the robbers jumped over a counter and forced the tellers to empty their money drawers into large plastic shopping bags printed with bright floral designs. The third robber stood guard over a male customer the robbers had shot in both legs when entering the bank.

Several packages of “bait money” were among the $36,410.00 stolen by the three men. Records of the serial numbers of this money were kept by the bank. The robbery was recorded on film and the jury was allowed to view the sequence. No witness in the bank at the time of the robbery could make an identification of the robbers because of the masks worn by the men.

The State’s evidence revealed that the three masked robbers fled the scene in a dark blue automobile which they later exchanged for a white Cadillac which had been stolen.

Based upon information obtained from a confidential and reliable informant and verified by his own independent investigation, on October 22, 1979, Birmingham Police Officer C. F. Trucks located the white Cadillac at the residence of the defendant’s uncle. Simultaneously, other officers arrested the defendant on an outstanding forgery warrant in an apartment in North Birmingham. After securing the stolen Cadillac, Sergeant Trucks went to the apartment where the defendant had been apprehended. Although the apartment was leased in the name of an unidentified female, the defendant was the only one found in the apartment. At the apartment, Sergeant Trucks observed “a hammer . . . with a white powder on it that appeared to be a plastic type substance, and numerous holes in the wall of said residence with rags stuffed in said holes.” Before any search was conducted Sergeant Trucks left the apartment and obtained a search warrant. He returned to the apartment and executed the warrant finding $3,189.00 inside the sofa cushions in the living room. Included among this money was some of the “bait money” taken in the robbery.

I

The defendant argues that the search was invalid because there was no probable cause to believe that the apartment searched was the residence of the defendant and that therefore there was no probable cause to believe that the defendant had hidden any contraband from the robbery in the apartment.

We have carefully examined the affidavit in support of the search warrant and find it was deficient in that the affiant did not state how the confidential informant learned of the defendant’s involvement in the crime. However, the information supplied by the informant was in such detail, and was verified by the independent inves-tigátion of Sergeant Trucks, that the magistrate could properly determine its veracity and reliability. Waters v. State, 360 So.2d 347 (Ala.Cr.App.), cert. denied, 360 Ala. 358 (Ala.1978); Hatton v. State, 359 So.2d 822 (Ala.Cr.App.) cert. quashed, 359 So.2d 832 (Ala.1977). Additionally, the finding of probable cause was based on Sergeant Trucks’ personal observation of the defendant in the apartment and the physical condition of that apartment. Bennett v. State, 46 Ala.App. 535, 245 So.2d 570 (1971).

The defendant argues that there was a lack of probable cause because there was insufficient evidence to prove that the defendant actually resided at the apartment. However, this argument is a non sequitur —the conclusion does not logically follow from the given proposition. The fact that the defendant did or did not actually reside at the apartment is not determinative of the issue of probable cause to search that apartment. Indeed, the apartment could have been searched even if it were positively established that the defendant had never even been in the apartment; nor was it necessary to prove the defendant’s ownership or exclusive possession of the premises in order to justify a search of the apartment. Probable cause to believe that the stolen money could probably be found in the apartment existed because (1) the defendant was arrested in that apartment, (2) because Sergeant Trucks knew of his own personal knowledge that the defendant lived there, (3) because while at the apartment Sergeant Trucks observed the holes in the walls of the apartment, and (4) because of the presence of the hammer covered with a “white powder” it could be inferred that the holes had recently been made. As we said in Hatton, 359 So.2d at 829:

“The ‘probabilities’ implied by the term ‘probable cause’ are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar, supra [Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879]. Probable cause does not preclude all room for doubt nor need the officers be absolutely certain and positive that a crime is in the making.”

On principle and authority we feel quite certain in upholding the finding of probable cause made by the trial judge.

II

The defendant contends that the purely circumstantial evidence presented by the State failed to prove the commission by the defendant of the offense charged. It is true the nature of the State’s evidence was circumstantial, however, we do not agree that it was insufficient to warrant the conviction.

We have reviewed the evidence and find it to be such that the jury could have excluded every reasonable hypothesis except that of guilt beyond a reasonable doubt. Cumbo v. State, Ala.Cr.App., 368 So.2d 871, cert. denied, Ala., 368 So.2d 877 (1979). The jury could properly have inferred guilt from the unexplained possession of recently stolen property. Rice v. State, Ala.Cr.App., 365 So.2d 1007 (1978), writ denied, Ala., 365 So.2d 1010 (1979); Dickey v. State, 32 Ala.App. 413, 26 So.2d 532 (1946). We have determined that the evidence was sufficient to establish defendant’s presence at and possession and control of the premises in which the money was found. Compare Temple v. State, 366 So.2d 740 (Ala.Cr.App. 1979). There was no error in the court’s refusal to grant the defendant’s motion to exclude the evidence.

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

AFFIRMED.

All Judges concur.