author: HARRIS, Presiding Judge.

text:
    John Solomon HEWITT v. STATE.
    6 Div. 195.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      Hugh Beaird of Selman, Beaird & Sel-man, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment charging him with murder in the first degree. The jury returned a verdict of manslaughter in the first degree and fixed his punishment at four years in the penitentiary. He was sentenced accordingly.

Appellant was represented by counsel of his choice and at arraignment pleaded not guilty and not guilty by reason of insanity. At the conclusion of the testimony, appellant withdrew his special plea of not guilty by reason of insanity.

When the State rested its case, appellant made a motion to exclude the State’s evidence for failure to make out a prima facie case. He also requested the affirmative charge on the four degrees of homicide embraced in the indictment. A motion for a new trial was filed in which, among other issues, the sufficiency of the evidence was raised. This puts us to a recital of the evidence.

In the early morning hours of April 13, 1979, the deceased, Sadie Thomas, was shot and killed in her home in Parrish, Walker County, Alabama. The evidence is not disputed that the deceased was shot with a .38 caliber pistol in the hands of appellant. Appellant claimed the shooting was accidental.

Mary Nash, the mother of the deceased, testified that she received a telephone call from appellant at 4:00 a. m. on April 13, 1979, and recognized his voice. The call awakened her. and when she answered the telephone appellant said, “This is John Hewitt. I just shot your daughter.” Mary Nash replied, “No, you ain’t shot my daughter. If you is, you must be crazy.” Appellant said, “No, I’m not crazy. I just done shot your daughter. You better get down here before she bleeds to death.” Mary Nash lived about ten blocks from her daughter and she started walking to her house. She stopped on the way and got Wayne Thomas, the fourteen or fifteen year old brother of the deceased.

When they got to the home of the deceased, they found the door locked and the boy kicked it down. They entered the house and found it was filled with smoke, which came from the kitchen where the deceased had been cooking fish, butter beans and making coffee. The lights were on but appellant was not present. Mary Nash removed everything from the stove and went into the living room and found her daughter on the floor. She felt for a pulse in her daughter’s arm and neck but could not find one. She told Wayne Thomas his sister was dead. She then call the Parrish Police Department and an officer arrived shortly. She further testified that her daughter worked at Marshall Durbin Processing Plant and for a Mrs. Pribbenow, and she had to be at work at the processing plant at a quarter to six.

On cross-examination this witness testified that the deceased and appellant had been going together for about six or seven months prior to her death, that the deceased and appellant lived in separate houses, and that she lived about half way between them. She said the Parrish police were the first officers to arrive at the scene of the shooting, and that appellant and her husband, Robert Nash, came to the house. Appellant came in the house, but Robert Nash did not. She further stated that, when appellant called her that morning at 4:00 a. m. to tell her about the shooting, he told her it was an accident. In her words, “Yes, he said it was an accident. He shore said it.”

On re-direct Mary Nash stated that the house was locked when they arrived and appellant was not there, but came up with her husband, Robert Nash, who lives with her, and they were both at home when appellant called her. She said her daughter had a car with a brand new motor in it and it was in good running shape. She also stated that her daughter was a small woman.

Mr. John Vaughn, an investigator with the District Attorney’s office in Walker County for two years, was called to testify out of the presence and hearing of the jury. He stated that he had been in law enforcement for seven years and he investigated the death of Sadie Thomas in the early morning hours of April 13, 1979. He arrived at the scene of the shooting at approximately 5:45 a. m., and there were officers already at the scene. These included a Parrish police officer and two Walker County sheriff’s deputies. They were in the process of clearing the scene, and he observed a black female, identified as Sadie Thomas, lying on the living room floor. He stated he had appellant removed from the room where the deceased was lying and placed in a bedroom in the house so that he could photograph the crime scene before anything was disturbed. He made photographs of the entire house, including the body of Sadie Thomas. He then went to the funeral home and made photographs of the unclothed body of the deceased, showing particularly the entrance wound in the chest. While at the funeral home, Mr. Vaughn picked up the blouse deceased was wearing at the time she was shot.

State’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 were identified and introduced into evidence. Most of these exhibits were introduced into evidence without objection. As to State’s Exhibit 1, counsel for appellant asked the witness on voir dire about a black mark on the photograph, and the witness explained the mark was made by a black ballpoint pen which pointed to the wound in the center of the chest. Appellant’s counsel objected to State’s Exhibit 4 on the ground that photograph showed blood and would tend to inflame the minds of the jury. The objection was overruled. Appellant’s counsel objected to a drawing made by Mr. Vaughn of the bathroom in the house of the deceased, but when the witness explained the exhibit was drawn to scale, i. e., three inches equaled one foot, the exhibit went into evidence without objection.

Mr. Vaughn further testified that he found a .38 caliber pistol on the couch in the living room of the home of the deceased, dusted it for fingerprints and marked the cartridges as to their corresponding chamber. The pistol would hold six bullets, and it contained four live rounds and one spent casing and one empty chamber. All of these items were marked with identifying numbers, sealed and sent to the crime laboratory.

Mr. Vaughn stated that he interviewed the defendant at 6:03 a. m. in the bedroom of the home of the deceased where defendant had been placed during the time Mr. Vaughn was taking photographs. Present at the time of the interview was Mr. Paul Kilgore, an investigator with the Walker County Sheriff’s Department. Prior to asking appellant any questions, he read him his constitutional rights from a Miranda card and asked him if he understood his rights. Appellant replied that he understood his rights. This witness stated that no one in his presence and hearing made any promises to appellant, that no hope of reward, remuneration or inducement of any kind was made to or held out to appellant to get him to make a statement. Appellant was not told that it would be better or worse for him if he did or did not make a statement, and appellant was not threatened or coerced in any manner in order to obtain a statement from him. Mr. Vaughn was asked to read to the court the constitutional rights of which he advised appellant from the card, and he complied by reading:

“The Miranda Warning. 1. You have the right to remain silent. 2. Anything you say can and will be used against you in a court of law. 3. You have the right to talk to a lawyer and have him present with you while you are being questioned. 4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. 5. You can decide at any time to exercise these rights and not answer any questions or make any statements. Upon advising Mr. Hewitt of his rights I asked: Do you understand each of these rights I have explained to you?
“Q. What if anything did he say when you said that?
“A. He said, ‘Yes.’
“Q. Did you say anything else to him?
“A. Yes, sir. I repeated by saying, ‘Having these rights in mind, do you wish to talk to me now?’ Again he said, ‘Yes.’

At this point appellant’s counsel questioned the witness on voir dire.

“Q. (Mr. Selman) Mr. Vaughn, what time of day was it that you talked to John Hewitt on this occasion you are about to testify about?
“A. Mr. Hewitt was interviewed, I noted at the time I was advising him of his rights, that the time was 6:03 a. m. on April 13, 1979.
“Q. Did you make a written statement of that?
“A. No, sir, I did not make a written statement of what Mr. Hewitt told me, in the fact that he signed it. The statement he made to me was oral. These notes were then placed in my case report.
“Q. And, you say who else was present?
“A. Investigator Paul Kilgore, Walker County Sheriff’s Department.
“Q. And, this was about what time?
“A. 6:03 a. m.
“Q. Now, you had arrived down there at Sadie Thomas’ house about what time?
“A. Approximately 5:45 a. m.
“Q. Had you learned in the course of your investigation about what time the shooting occurred?
“A. No, sir, I had not up until that point been given any information as to when the actual incident had occurred.
“Q. This was about 6:03 a. m.?
“A. Yes, sir.
“Q. I will ask you if John Hewitt here didn’t appear in a rather dazed and slow and awkward and fumbly fashion when you talked with him?
“A. No, sir, he did not. He appeared very quiet and very reserved. This was my impression.
“Q. That was your impression?
“A. Yes, sir.
“Q. Had you ever known John Hewitt before that?
“A. No, sir, I had never met him before.
“Q. Had you ever seen him before?
“A. No, sir.
“Q. But, it was obvious to you that the shooting had not occurred more than an hour or two hours before you were asking him the questions?
“A. No, sir. At this point in the investigation I could not determine or have any type determination as to the time the actual incident had occurred.
“Q. But, you have been in law enforcement for seven years, right?
“A. Yes, sir.
“Q. And, was the body still there on the floor at that time?
“A. Yes, sir, it was.
“Q. And, this was how long after you got there?
“A. It was upon my arrival at 5:45 and I interviewed him at 6:03. We are talking about in the neighborhood of eighteen to twenty minutes.
“Q. And Mr. Harris, Chief of Police of Parrish was there, wasn’t he?
“A. Yes, sir, he was.
“Q. And you had asked some questions around?
“A. Yes, sir.
“Q. And, you tell this jury that you did not have any idea at that time when this shooting approximately occurred?
“A. No, sir, I had not at that time.
“Q. But you could tell in your best judgment based on your experience it had not been more than an hour or two hours.
“A. No, sir, I couldn’t tell at that point.
“MR. BAKER: If it please the Court, this would be ample time on cross-examination.
“COURT: Voir dire. Go ahead.
“Q. You say he appeared to be slow and deliberate.
“A. No, sir, I said he was quiet and reserved.
“Q. Did he appear to be somewhat in a daze?
“A. No, sir, he did not.
“Q. Well, you said you had never seen him before?
“A. No, sir.
“Q. And, he told you he understood his Miranda rights?
“A. Yes, sir.
“Q. Did he use the expression Miranda?
“A. No, sir, he didn’t say Miranda rights. When I asked him if he understood his rights the answer was ‘Yes.’
“Q. Did you read them as fast to him as you have to us and the jury?
“A. I doubt I did.
“Q. Who do you say was present with you?
“A. Investigator Kilgore.”

At the conclusion of the voir dire examination, as quoted above, appellant’s counsel objected to Mr. Vaughn’s testifying as to any statement made by appellant on the grounds that the shooting had occurred less than two hours before and that the defendant would naturally have been in a state of shock. He would have been confused, and his statements would not likely have been rational and it would have been difficult for him to understand anything at all. The objection was overruled.

According to Mr. Vaughn, appellant’s statement to him was oral, and is as follows:

“When I asked Mr. Hewitt if he could tell me what happened, Mr. Hewitt told me he had gone to Ms. Thomas’ house at around 4:00 the same morning which would have been April 13, 1979. He said that upon entering the house that he and Ms. Thomas had apparently gotten into a struggle of some type and argument. During the course of this argument Mr. Hewitt told me they began fighting over his gun. That both of them were fighting over the gun and that the gun discharged. Ms. Thomas was in turn hit in the chest and she fell.”

Back before the jury, Mr. Vaughn continued his testimony. He was shown State’s Exhibit 5 and explained that this photograph was taken from the front porch of Ms. Thomas’ residence, looking through a broken window on the storm door. He stated he unloaded the .38 caliber pistol he found on the couch in the home of the deceased. He said the pistol had four live and one spent cartridge and one chamber was empty. He was asked to go to the board and make a chart of the pistol and explain its function to the jury, and he drew the chart and stated:

“This would be viewing the cylinder as it were opened up from the rear center .. . In this particular revolver it contained six chambers. This particular revolver is built on a Smith-Wesson patent which means that when the hammer is cocked or the trigger is pulled the cylinder rotates in a counter clockwise direction. When I recovered the revolver from the couch and opened it I noted this particular chamber which was under the hammer contained one spent cartridge. In other words this one had been fired at some time. This one, # 2 was a live round, # 3 contained a live round, 4 a live round, 5 contained a live round, # 6 was empty and contained no cartridge at all.”
From the record:
“Q. Now, if the trigger, if the .38 were sitting on an empty round and you pulled the trigger what would happen?
“A. Upon pulling the trigger the cylinder would rotate into a counter clockwise position. Let’s assume that the empty chamber was initially under the hammer. As the hammer goes back the cylinder rotates and brings the live round under the chamber at which time the hammer would fall and detonate the primer.
“Q. All right. If the pistol is setting on empty round and you drop it, is there a bullet in there or projectile to go through it?
“A. No, sir.”

On cross-examination this witness testified that he came into possession of a pistol permit issued by the sheriff of Walker County to appellant for the .38 caliber pistol and that appellant also had a pistol permit for a .25 automatic pistol. Both pistol permits were introduced into evidence without objections. It was further developed that appellant’s house had been broken into and the .38 caliber pistol was stolen, but was later recovered. It was also shown that, about three weeks prior to the shooting of Sadie Thomas, appellant had accidentally shot himself in the foot.

Mr. Joel Guthrie, an investigator for the Walker County Sheriff’s Department, testified that he did not go to the scene of the shooting, but he did have a conversation with appellant in the sheriff’s office. This interview occurred around 7:00 a. m. on the day of the shooting in the presence of Investigator Frank Cole. Appellant was again warned of the Miranda rights and the proper predicate was laid, showing that no promises, threats, rewards or other inducements were made to appellant to get him to make a statement. Appellant told Mr. Guthrie that he understood his rights and was willing to give him a statement about the shooting. This witness stated that, to the best of his knowledge, appellant was not in a state of shock and he did not have any trouble understanding what he told him, but that he did talk slowly and haltingly. Mr. Guthrie wrote the statement made by appellant and gave it to him to read. Appellant read the statement for five minutes or longer before he signed it. He started writing the statement around 7:00 a. m. and completed it at about 7:45 a. m. on April 13, 1979. The statement was marked as State’s Exhibit 20 and the prosecutor stated he would offer it into evidence later during the trial. When the statement was offered, counsel for appellant objected on specified grounds and the court sustained the objection, but on other grounds.

The prosecutor asked the witness to relate to the jury what appellant told him at that time. Mr. Guthrie then testified over appellant’s objections as follows:

“On the morning I talked with Mr. Hewitt he said he had received a call from Ms. Thomas for him to come down to her home and pick her up and carry her to his house to clean house prior to some of his relatives coming in from Detroit to visit. He said when he arrived at Ms. Thomas’ home that she grabbed him by the collar as he came in the door and made some statement about whipping him. At this time Mr. Hewitt said he carried a gun with him, that he always did. This was in the pocket of his overalls and there was a struggle for the gun. He said she was trying to reach for the gun and he in turn was trying to keep her from getting the gun. At this time the gun supposedly fell and went off or went off during the struggle. Ms. Thomas fell against Mr. Hewitt and he said she made some statement about ‘I’m shot’ as best I remember. He laid her down on the floor.”

Mr. Guthrie further testified that appellant stated that he called for some help on the telephone and that he picked his gun up from the floor and put it in his pocket. Mr. Guthrie stated that he took a .25 automatic pistol from appellant that same day and talked to him again at 1:00 p. m. in the presence of John Vaughn. Again, it was proved that no promises, threats, rewards, or other inducements were made or held out to appellant to get him to make a statement. It was stipulated that the Miranda, rights and warnings were explained to appellant before he was interrogated on this occasion. The witness stated that he had contacted some members of appellant’s family to let them know where appellant was and appellant did not request to see a lawyer, that appellant told him he had carried the pistol with the hammer down on a live round because he had shot some dogs the preceding Friday, that appellant stated he had only one box of ammunition for this .38 pistol and that he had purchased it locally at an unknown period of time before the incident.

On cross-examination Mr. Guthrie stated that appellant said he did not believe the deceased meant him any harm as she grabbed him by the collar, that appellant appeared to be upset during this interview and he never mentioned any fuss between him and the deceased before he went to her home to pick her up and carry her to his house to help clean the house before his relatives were to come for a visit. Mr. Guthrie stated that appellant did not mention to him that he had accidentally shot himself in the foot three weeks before he went to pick up the deceased, nor did he say he had been using crutches during the three weeks prior to April 13, 1979.

On re-direct this witness stated that appellant said that the deceased tried to grab the pistol and was trying to get it out of his pocket, that he was trying to prevent her from getting the pistol, that he had the deceased had been together earlier that night, and that the deceased was drinking. He identified State’s Exhibit 22 as the pistol he received from Roland Neal, which was a .25 automatic received from appellant, and State’s Exhibit 21 as live rounds of ammunition belonging to appellant. These two exhibits were introduced into evidence without objections. This witness said that appellant told him that, during the apparent struggle for the gun, it fell out of his pocket and hit the floor and went off.

The State called Mr. John R. McDuffie, a criminalist with the Alabama Department of Forensic Sciences with a branch office in Tuscaloosa, Alabama. Mr. McDuffie testified he received a B.S. Degree in Chemistry from Emory University in Atlanta, Georgia, and a Ph. D. in Chemistry from Auburn University in Auburn, Alabama, and had in-service training with the Department since 1972, that since 1976 he had been assigned to the Tuscaloosa laboratory, and that Walker County was one of the counties assigned to the Tuscaloosa area. This witness identified State’s Exhibits 23 and 24. These were delivered to the laboratory on April 13, 1979, by Investigator John Vaughn. Number 23 was a blouse worn by the deceased at the time she was shot. The blouse had a hole in the front section just to the right of the midline and a hole in the back of the left sleeve, and two small holes located in the armpit area. He examined the holes in the blouse microscopically and chemically for the presence of gunpowder. He did not find any gunpowder residue on the blouse. The blouse was admitted into evidence without objections. Mr. McDuffie performed a firearms test with State’s Exhibit 26 and stated that the evidence cartridge was fired in this particular weapon. He also examined scrapings from the entrance wound on the body of the deceased for the presence of gunpowder and found none. This witness stated that he performed tests with the .38 caliber pistol, and it deposits powder up to a distance of approximately two to three feet. He expressed an opinion that the muzzle, or the end of the barrel of the weapon, was greater than two or three feet from the blouse when it was fired. The pistols, live rounds, spent cartridges, and a piece of sheetrock cut from the wall in the bathroom were all admitted into evidence without any objections.

On cross-examination this witness testified that the four holes in the blouse were compatible with one bullet and appeared to be in a direct line.

Dr. Henry D. Santina testified that he was a medical doctor employed with the State Department of Toxicology to perform autopsies. His education included five years of post graduate training in clinical pathology, pathologic anatomy and forensic pathology. He had previously performed autopsies and testified in court as to the cause of death several times in Walker County. His qualifications as an expert were not questioned. He performed an autopsy on the body of Sadie Thomas on April 14, 1979, both externally and internally. He estimated the deceased weighed 100 pounds, saying, “There are no scales in the mortuary.” The body was unclothed except for two pairs of underpants.

Dr. Santina stated that there was an entrance wound to the midline of the chest one-sixteenth of an inch to the left of the midline and sixteen inches from the top of the head. The exit wound on the back of the chest was eight inches to the left of the midline and seventeen inches from the top of the head. He did not see any stippling or burning of the skin from gunshot powder, “Hot powder will burn the skin. Cold powder will have no effect.” In describing the internal examination and the cause of death, Dr. Santina stated there was a “perforation of the left side of the heart. It was about two inches long in the muscle, but a little less than a half inch as far as the hole shall we say in the heart.” He stated that the entrance wound and the exit wound were in a straight line; “There were no intermediary targets that deflected the bullet.” He further stated that the cause of death “was a hemorrhage, massive excessive bleeding from the heart that resulted from the gunshot wound that I described.” He said the bullet entered at an angle about five degrees from the horizontal plane and forty-five degrees from the middle of the body” five degrees downhill and about forty-five degrees to the left side of the deceased.”

Ms. Laura T. Shevlin testified that she was a toxicologist with the Alabama Department of Forensic Sciences at Auburn, Alabama. She received a B.S. in Chemistry from Duke University, M.S. in Physical Chemistry from the University of California, Berkley, and had additional class work in pharmacology and toxicology at Auburn University. She conducted a blood test for ethyl alcohol on blood drawn from the body of the deceased, and the examination was negative. State’s Exhibit 32 was introduced into evidence without objection.

The final witness for the State on direct was Bill Ashenfelter, who testified that he was Personnel Manager for the Marshall Durbin Company and knew Sadie Thomas in her lifetime, that she was employed by the Marshall Durbin Company and was supposed to be at work at 5:50 a.m. on the date she was killed.

The State rested its case, and appellant made a lengthy motion to exclude the State’s evidence as to all the degrees of homicide embraced in the indictment, separately and severally, setting out numerous grounds. Out of the presence and hearing of the jury, the trial court responded to the motion to exclude the State’s evidence as follows:

“Let me make an observation here as to the statement that Mr. Hewitt gave to the officers which were admitted into evidence over the objection of the defense and with the evidence that has been presented by the State Toxicologist and Dr. McDuffie, there seems to be a direct conflict between the physical evidence and the statements which I admitted of Mr. Hewitt. Quite frankly, we, off the record yesterday, had a discussion at which time I indicated it did not appear to be a very strong case. After hearing Dr. McDuffie and Dr. Santina it appears to be a different ball game so to speak so I am going to deny your motion to exclude the evidence.”

Appellant took the witness stand in his behalf. Appellant’s counsel has fairly summarized his testimony on both direct and cross-examination, and we quote this summary, but will make some additions and comments.

From the brief:
“The defense then called defendant John, who testified he was 66 years of age and was to become 67 on November 13, that he lived in Parrish, Alabama, since 1941 and outlined the directions to his house and to Sadie’s house, that he was a former underground miner until he got his back broken and he suffered a stroke in 1975 which paralyzed his left side, that he was taking four kinds of medicine on April 14, 1979, and had accidentally shot himself in the left heel on March 18,1979, with a .25 caliber gun his son gave him, that his house was broken into in February of 1979 and among other things he lost and later had recovered by the Sheriff the .38 pistol in evidence in this case and he had a permit from the Sheriff of our County to carry both the .38 and .25 pistol, that witness had been retired and unable to work since 1962 and his wife had died in 1963 and he lived alone since then and had become friendly with Sadie about 2 months before ' her death although he had known her since he had been living in Parrish, Alabama, that Sadie did some cooking for him and they visited each other from time to time and even lived together as husband and wife over a period of time, they got along all right and actually loved each other and there was no ill will between each other, that she helped him with his house cleaning from time to time, and their relationship was good and witness went to the seventh grade in school, has to wear glasses to read small lines, that he called Sadie about 4:00 A.M. the morning of April 13, 1979, and asked her if she had time to clean up a little for him and she agreed to do this, that she did his laundry and she waited on him while he was ‘on crutches’ after accidentally shooting himself and she cooked for him and he loved her and she called him back the morning in question and asked him to come after her and to come and assist her so she could get to his house quicker and he had been on crutches for 3 weeks but did not bring them that morning, that when he arrived at Sadie’s house he knocked, told her who he was and she let him in, that witness identified a chair in a picture of Sadie’s house (Defendant’s Exhibit Number Three) and the picture generally; that the location of the chair in the picture was the same as it was the morning of April 13, 1979, that the chair was a heavy stationary chair and witness identified Defendant’s Exhibit Five as the bathroom of the house in question, that the witness also identified the chair in question as the one big chair in the house as is also shown in State’s Exhibit Number Fifteen, that when witness knocked on the door he had his pistols with him, one in the bib of his overalls with his pocketbook and his .38 in his side pocket and he was carrying the pistols (he had permits for) because someone had broken into his house and stolen them before, that he had shot one about 13 times in 6 years and the other about a dozen times. That when witness went into the house Sadie chided him for not having his crutches and jokingly threatened to whip him and she asked him to assist her and he went to the kitchen and got some laundry and came back to the chair and sat down as his ankle was bothering him and Sadie was in the kitchen and she came and asked him how much money he had in his pocket and witness answered he had $54.00 and she wanted forty dollars to pay for a new door she had bought as he had given her money from time to time and he told her he would give it to her when he got his next check and she came over to him and said I am going to get it now and he got out of the chair to the left and she was reaching for his pocketbook, that neither of them were mad and he pushed her back twice after her second attempt when she was reaching for the bib of his overalls and she was still not mad and came back the third time and said she was going to get that old gun and he shoved her back as hard as he could, then Sadie came back at him with the intent to get his gun and with her hand up and he grabbed the gun and snatched it back to get it out of her way and he was going to put it behind himself as he had no intention of shooting her and as he struck the chair or the door behind him with the gun it fired and he dropped it and Sadie was about a step and a half to two steps away at that time coming back toward him and she stated she was shot and witness described the shooting as accidental, that he ran to her and could get no answer and went to the telephone to call her mother and called the operator, but could get no answer and he left his glasses at home and could not read the numbers in the book but he knew Sadie’s mother’s number from memory and he dialed her phone and told her he dropped a gun and shot Sadie and she said she would be there as soon as she could find C.V. to drive the car, that her mother did not come in 3 or 4 minutes and he went after her, but could not find her, but did find her husband, Robert Nash, and brought him back to Sadie’s and her mother had arrived and the Parrish police had arrived thereafter, that he picked up his gun before he left Sadie’s house and went looking for help and his intentions at the time of the incident in question were to hold the gun away from Sadie, and he had no intention of getting the gun out when he went there that morning and he testified also as to his height, which is 5 feet 11 inches.
“On cross-examination he testified he weighed 230 lbs., did not know how much Sadie weighed, but he thought it would be over a 100 pounds, that he knows how to get back home, handles his own business affairs and his money, never been to Bryce’s Hospital, had been seeing Sadie for about 7 months and State’s Exhibit Number Twenty-five was his pistol he had that morning in his overalls and Sadie was trying to reach for his pistol and he got it out to keep her from getting it while he was standing next to the chair, that Sadie came at him three times and he pushed her away with his left hand twice and she said she was going to get his money and she worked at Marshall Durbin and had to be at work early in the morning and witness testified again that as he pushed Sadie back he took the gun out and pushed it back and he hit something with it and he did not know if his finger was on the trigger when it went off and that he talked with some police officers at the scene, but does not remember if they gave him his rights and witness remembers everything before Sadie was shot, but does not remember anything after she was shot and John was cross-examined about his memory and John had been to see Sadie the night before and neither of them had been drinking and he testified to his signature on a paper, but he did not read it and Sadie was about 2 steps away when this happened or roughly five or six feet away when it went off and shot her and he struck something at that time, but does not know if it was the chair or what. “The State offered the signed statement into evidence in the presence of the jury and the Court sustained the defense’s objections to the same.
“On re-direct witness testified about pushing Sadie back and that the purpose of taking the gun out of his pocket and putting it behind him was to keep her from getting ahold of it and not to shoot her as he had no intention to shooting her or even intending to fire the gun, that witness helped pay on Sadie’s car payments and prescriptions for medicine for her, had her heater fixed and each was good to the other and he was not expecting any trouble that morning and when asked why he didn’t just leave, he stated he did not have time to get out and witness had nothing to drink when he went down there and when he shot himself in the foot he dropped the pistol on the floor and it went off and it was the .25 pistol.
“It was stipulated by the District Attorney that John’s house was broken into and the offenders arrested and prosecuted and through Court in February, 1979.
“The hospital records from Jasper Community Hospital were introduced without objection which shows a wound to John’s heel that went through his left foot on March 18, 1979, along with the records from Jackson Clinic showing treatment therefor and he was ‘put on crutches’, and the records from Brookwood Medical Center from Birmingham, Alabama, were introduced to show John suffered a stroke or cerebral vascular accident between Thanksgiving and December, 1975, and also the records from St. Vincent Hospital in Birmingham, Alabama, was introduced to show John’s injury when he broke his back in the mines in 1953.”

Appellant was positive that the chair near the door in the home of the deceased was a “stiff upright chair.” It was not a recliner, that it was the only big chair in the living room the morning the deceased was shot, and that the front door could be open without moving or disturbing the chair.

Appellant stated that he had been using crutches for three weeks prior to going to the home of the deceased at 4:00 a. m. on April 13, 1979. The medical records introduced into evidence by the defense contains the following notation:

“4/10/79: The bullet wound of the left foot has now healed. It is very slightly. sore and I told him to dispense with the crutches and start walking on it and keep the foot clean and soak it once a day. If he has any further trouble with the foot to come back to see me.
“B. Nicotri, M. D./jf”

On rebuttal Mr. John Vaughn was recalled as a witness for the State. He was shown State’s Exhibit 36 and identified it as a photograph of a chair that he took at 5:45 a. m. on April 13, 1979. He further testified that the chair was “very soft,” and that, “It is a reclining chair.” He said it was the same chair that appears in several other photographs which he took that same morning that had been admitted into evidence.

Appellant contends reversible error was committed by the trial court in allowing an in-custody statement into evidence when no attorney was present. The evidence adduced by the State reflects that the accused was given the Miranda rights and warnings on two occasions before he was interrogated and at no time did he request the presence of a lawyer. He was also given the pre-Miranda rights and the voluntariness predicate was properly laid on both occasions.

We have many times held that an extrajudicial 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. Houston v. State, Ala.Cr.App., 321 So.2d 261; Rainer v. State, Ala.Cr.App., 342 So.2d 1348; Hardin v. State, Ala.Cr.App., 344 So.2d 234.

When the trial court finds on conflicting evidence that a confession or incriminating statement was voluntarily made, such finding will not be disturbed on appeal unless it appears contrary to the great weight of the evidence or is manifestly wrong. Sparks v. State, Ala.Cr.App., 376 So.2d 834; Burks v. State, Ala.Cr.App., 353 So.2d 539; Patterson v. State, Ala.Cr.App., 321 So.2d 698; Balentine v. State, Ala.Cr.App., 339 So.2d 1063, cert. denied, 339 So.2d 1070.

Appellant lays great emphasis on the fact that when he made a statement to Officers Vaughn and Guthrie he was sixty-six years of age, in bad health, taking four different kinds of medication for high blood pressure and other ailments, had suffered a stroke in 1975, which paralyzed his left side for a while, and could not read fine print without his glasses, and in this condition he could not make an intelligent waiver of his constitutional rights.

In Elrod v. State, 281 Ala. 331, 202 So.2d 539, the Supreme Court held:

“An ‘illiterate’ is one ignorant of letters and books, unlettered, uninstructed, uneducated, unable to read or write, uncultivated, without book learning. [Citation omitted] While illiteracy is a great misfortune, it does not mean insanity, and does not constitute a defense to crime or render a confession of guilt, otherwise unobjectionable, inadmissible in evidence against him. [Citation omitted] Accused’s intelligence, character and situation at the time of the confession of the crime charged are important considerations in determining whether the confession was voluntary, but the fact that accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary. [Citation omitted] Evidence tending to show a defendant’s weak mentality, feeble-mindedness, and mental stress does not affect the admissibility of the confessions, but rather is a matter that bears on the weight, credibility and effect to be given the confessions by the jury. [Citation omitted].”

Appellant claims the confessions were involuntary, but points to no threats, force, violence, rewards, or promises, nor any of the things that have been held to render confessions involuntary. He also claims that it was not shown that he intelligently and voluntarily waived his rights.

These claims are not supported by the record. The record reflects that two complete Miranda rights and warnings were given to appellant and that appellant acknowledged understanding them and stated his willingness to talk to the officers. He made the statement to both officers that the shooting was an accident.

The scientific evidence cast a serious doubt on appellant’s claim that the killing was accidental. According to the testimony of both Dr. McDuffie and Dr. Santina, the blouse which the deceased was wearing at the time she was shot showed no powder residue, and there were no powder burns on the body where the bullet entered the chest of the deceased. Dr. McDuffie determined that the death weapon would produce powder burns and deposits for a distance of two to three feet from the barrel of the pistol, and in his opinion the weapon had to be at least two or three feet from the deceased when it was fired. Appellant stated that the deceased was five to six feet.away from him when the pistol was accidentally discharged.

Conflicting testimony is for the jury to resolve, and a verdict rendered thereon will not be disturbed on appeal. Woods v. State, Ala.Cr.App., 344 So.2d 1225; Young v. State, Ala.Cr.App., 346 So.2d 509.

Appellant contends that the trial court erred to a reversal in its oral charge to the jury. The short answer to this contention is that no exceptions were reserved to the oral charge. In this state of the record nothing is presented for review. In this state of the record nothing is presented for review. In the absence of an exception to the oral charge, the claimed error cannot be raised for the first time on appeal. Nor can it be raised in a motion for a new trial. Davidson v. State, Ala.Cr.App., 360 So.2d 728, and cases therein cited, cert. denied, Ala., 360 So.2d 731; Cox v. State, 280 Ala. 318, 193 So.2d 759. Not only must the exception be reserved to the oral charge to invite a review, but it must be done before the jury retires to deliberate on the verdict. Cox v. State, supra.

Appellant requested numerous written charges. Some of these charges were given, others were not. Most of those refused were affirmative in nature or were confusing, argumentative and misleading. Most refused charges, stating correct principles of law, were covered in the oral charge or other given charges. In brief, appellant argues only the refusal of Charges 7,11, 32, 49, and 50.

Requested Charge No. 7 was fully covered in the court’s oral charge to the jury.

Charges 11 and 32 directed the jury to find the defendant not guilty if they had a reasonable doubt of his guilt “as charged in the indictment [Number 11],” or if they had a reasonable doubt as to “any material allegation in the indictment [Number 32].” These charges were properly refused as they totally ignored the possibility of appellant being convicted of a lesser included offense embraced in the indictment charging murder in the first degree. As we have pointed out, appellant was convicted of manslaughter in the first degree. See Franklin v. State, 145 Ala. 669, 39 So. 979; Williams v. State, 161 Ala. 52, 50 So. 59, and Section 15-17-1, Code of 1975.

Refused Charges 49 and 50 were based on the fact that the evidence showed without dispute that appellant had a lawful permit to carry the death weapon. A pistol permit does not enlarge a person’s legal rights except to carry a pistol concealed on his person. A pistol permit does not confer on the permittee the right to do an unlawful act. Williams v. State, supra. The trial court properly refused these charges.

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. Parks v. State, Ala.Cr.App., 333 So.2d 906, cert. denied, Ala., 333 So.2d 912; Hawkins v. State, Ala.Cr.App., 333 So.2d 846, cert. denied, Ala., 333 So.2d 851; Cooper v. State, Ala.Cr.App., 331 So.2d 752, cert. denied, Ala., 331 So.2d 759.

We have not overlooked the fact that, after the jury had deliberated for a period of time, they return to the courtroom and asked the judge who fixed the punishment, the judge or the jury, and the court said, “The jury.” Whereupon, the foreman turned to another juror and conferred with him for a few seconds. The foreman then wrote in the number “4” on the verdict form of manslaughter in the first degree and passed the verdict to the trial judge. Appellant made no objections to this procedure.

While we do not think this constituted reversible error, we believe the proper procedure would have been for the court to send the jury back to the jury room with instructions to prepare the verdict and let the bailiff know they were ready to report to the court. The very least the court should have done was to ex mero motu poll the jury in the presence of appellant and his counsel in open court.

We cannot hold that the trial court abused its discretion in denying the motion for a new trial. Its decision was not wrong and unjust.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge. BOWEN, Judge.

license: Public Domain

text:
    William David CORDIAL v. STATE.
    6 Div. 853.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      Dan M. Gibson, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery. Sentence was eighteen years’ imprisonment.

The only issue raised on appeal is whether the trial judge erred in refusing to instruct the jury on the lesser offenses of assault and battery, assault with intent to rob and larceny included within the crime of robbery.

A trial court must instruct the jury, on the lesser offenses included in the indictment “when there is a reasonable theory from the evidence supporting his (accused’s) position.” Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978).

“A court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury.”
Chavers, 361 So.2d at 1107.

However, in a robbery prosecution, a refusal to charge on the lesser included offenses of larceny and assault and battery is not error where the evidence does not warrant verdicts for such offenses. Kelly v. State, 235 Ala. 5, 176 So. 807 (1937). See also Henderson v. State, 373 So.2d 1218 (Ala.Cr.App.) cert. denied, Ex parte Henderson, 373 So.2d 1221 (Ala.1979); Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975); Chamberlain v. State, 48 Ala.App. 254, 263 So.2d 709 (1972); Harris v. State, 44 Ala.App. 654, 219 So.2d 410 (1969); Bowman v. State, 44 Ala.App. 331, 208 So.2d 241 (1968); Brooks v. State, 36 Ala.App. 310, 55 So.2d 366 (1952).

The facts in this case are not disputed. On February 28, 1978, the defendant and two other men returned to Big Daddy’s Lounge in Tuscaloosa around 9:00 in the evening. All three were armed with firearms. The defendant had a double-barreled shotgun. The three men claimed that they had lost a wallet containing their rent money in the lounge and thought that someone had taken it.

Frankie Stamps, the bartender, testified that the defendant told everyone to “get up against the wall” and that the defendant held his gun on them. The defendant said, “We come for the wallet” and “We mean business; we have got nothing to lose.” Ms. Stamps stated that, when the customers convinced the three armed men that they did not have the wallet, one of the men, Barry Niepokny, demanded the money out of the cash register and the money she had in her pocket. During this time the defendant said nothing: “All he was doing was standing there holding a gun on him [them].” The defendant was pointing his weapon at the customers. As the three men started to leave the lounge the defendant “said not to follow them, that they had somebody waiting outside, not to call the police.” Ms. Stamps stated that she never heard the defendant say, “We don’t want the money out of the cash register; we just came for the wallet.”

David Hassell was a customer in Big Daddy’s Lounge on the night of the robbery. He heard the defendant say, “Everybody up against the wall; this is a holdup.” The defendant and one of his accomplices said this three or four times. Hassell testified that the defendant said, “We have lost a hundred dollars, and it was in a billfold.” The three men said that they knew that “they had lost it in there, and they knew who had gotten it, and they wanted their money because they had to pay their rent.” Hassell testified that the defendant said that he had done time before and that he did not mind doing it again.

According to Hassell, Ms. Stamps said, “If I give you a hundred dollars out of the cash register, will you go on and not hurt anybody.” Initially the defendant responded, “No, I know that those three have got my money, and I want them to up it.” The armed men “hemhawed” and finally the defendant said, “Okay just give me the money out of the cash register.” Ms. Stamps then got the money out of the cash register and one of the defendant’s companions said, “Just go ahead and give me all of it.” As they were leaving the defendant said, “Now, you all remember that I know all of you. You all keep your mouths shut or we will get you”, and “You know me, and if I ever hear anything of this, I will get you; we will get you.”

Hassell stated that the defendant waved the shotgun but never pointed it at anyone. He testified that after a customer asked if a girl who had a “bad heart” could sit down in a chair Ms. Stamps volunteered to go to the cash register. As she was counting out the money, Niepokny, one of the defendant’s companions, told her to “go ahead and give him all the money in the cash register.”

The manager of Big Daddy’s Lounge testified that, when he checked the cash register after having been notified of the robbery, $313.00 was missing. The defendant was apprehended while fleeing near the scene.

Niepokny took Billy Bigham, an investigator for the Tuscaloosa Police Department, to where the firearms used in the robbery had been hidden in an old deep-freezer behind Niepokny’s brother-in-law’s house. Niepokny cooperated with the police and made a statement also. He told them that they went back to get a wallet which was what they wanted.

The State then rested its case.

Mary Plowman testified for the defense. She was a customer in Big Daddy’s during the robbery. She testified that the first thing the defendant said was that “somebody had stolen their billfold, and they wanted it back.” To her date the defendant said, “Wayne, you know I ain’t got nothing to lose; I mean business.” She did not hear the defendant say this is a holdup. Ms. Plowman was on the telephone when the defendant entered the lounge carrying a shotgun.

Ms. Plowman testified that Ms. Stamps said “that if money was what they wanted, she would give them their money out of the register if they wouldn’t hurt anybody.” According to Ms. Plowman the defendant replied that “that was not the money they wanted; they wanted their money, their billfold.” The defendant said this once or twice. The defendant did nothing to stop Niepokny from taking the money from Ms. Stamps-the money from the cash register and the money that she had in her pocket.

In determining whether the jury should have been instructed on lesser included offenses, the specific question in this case is whether the evidence according to any reasonable theory presented a controversy as to whether the defendant’s particular conduct constituted robbery or a lesser included offense. Chavers.

The defendant argues that a reasonable theory is that he and Niepokny entered into a plan to return to Big Daddy’s Lounge not to commit a robbery, but rather to seek the return of their lost billfold. The argument continues:

“When an impasse was apparent, the bartender suggested the cash register. There was evidence that Niepokny demanded the money from the register while Cordial (the defendant) remained passive. The purpose of the plan then changed from the return of their own money to the taking of someone else’s. Again, the evidence of Cordial’s role remains controversial. This jury could have determined that it was Niepokny, in an independent act, who perpetrated the robbery.”

The defense is grounded upon the rule that

“a person cannot be guilty of robbery in forcibly taking property from the person or presence of another if he does so under a bona fide belief that he is the owner of such property or is entitled to the possession thereof, since such belief negatives the requisite animus furandi or intent to steal.”
67 Am.Jur.2d, Robbery § 17 (1973).

In Alabama it has been held that to constitute robbery it is necessary that the property taken be that of some other person than him who takes it, but it is not necessary that it be the property of the person from whom it is taken. Bowman v. State, 44 Ala.App. 331, 208 So.2d 241 (1968); Douglas v. State, 21 Ala.App. 289, 107 So. 791 (1926). See also Annot. 88 A.L.R.3d 1309 (1978).

Under an indictment for robbery, there may be a conviction for assault with intent to rob, for larceny, for attempt to rob, for assault and battery or for assault. Rambo v. State, 134 Ala. 71, 32 So. 650 (1902). The defendant by three separate written instructions requested the trial court to charge the jury that an indictment for robbery also embraces the charges of assault and battery, assault with intent to rob and larceny.

Here the evidence would not support a charge of assault and battery. Generally see McArdle v. State, 373 So.2d 897 (Ala.Cr. App.) cert. denied, Ex parte State ex rel. Atty. Gen., 372 So.2d 902 (Ala.1979); Stoutmire v. State, 358 So.2d 508 (Ala.Cr.App. 1978). There is no evidence that the defendant touched anyone or that he invaded another’s “right to the inviolability of the body.” Bennett v. State, 57 Ala.App. 568, 571, 329 So.2d 627 (1976).

The evidence will not support a charge of larceny for the simple fact that the evidence shows that a robbery was committed. In a robbery prosecution, when under the evidence, if any offense was committed it was robbery, it is not error for the trial court to refuse to charge on larceny or any other lesser included offense. Brooks v. State, 36 Ala.App. 310, 55 So.2d 366 (1951).

For this same reason, there was no evidence to support a charge of assault with intent to rob. There is absolutely no evidence to show or indicate that the defendant assaulted Ms. Stamps with the intent to rob.

If, as the defendant argues, the jury could have reasonably determined that it was Niepokny who perpetrated the robbery in an independent act beyond the scope of the original conspiracy, then, if such be the case, the defendant could not have been convicted of robbery or any offense included in robbery as charged in the indictment. In other words, unless the defendant was found to be an accomplice in the robbery of Ms. Stamps, he could not be convicted of robbery or any lesser included offense. If this robbery of Ms. Stamps was a separate and independent crime committed by Nie-pokny, the defendant can hardly be guilty of any crime arising out of Niepokny’s actions. No doubt the defendant committed criminal acts when he entered the lounge, armed with a shotgun and forcibly seeking the return of his money. However, these crimes were not lesser included offenses of the crime of the robbery of Ms. Stamps.

“While it is not necessary to make a specific charge of all the offenses included in the charge for which the indictment is drawn, nevertheless a conviction cannot be had of a crime as included in the offense specifically charged unless the indictment in describing the major offense contains all the essential averments of the lesser, or the greater offense necessarily includes all the essential ingredients of the lesser.”
42 C.J.S. Indictments and Information § 275 (1944).

Under the facts of this case and legal principles involved, it was not error for the trial judge to refuse the defendant’s requested instructions on the lesser included offenses of the robbery charged in the indictment. We have searched the record for error and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

On application for rehearing it is argued that under the evidence the jury could have found the defendant guilty of threatening the use of a dangerous weapon (Alabama Code 1975, Section 13-1-45) as a lesser included offense under an indictment for robbery.

“No proposition is more familiar than that a man cannot be indicted for an offense, and under that indictment suffer a conviction of an offense not named in the indictment.” Garner v. State, 3 Ala.App. 161, 162, 57 So. 502 (1912). A violation of a statute proscribing the drawing of a deadly weapon upon another is not included in a charge of robbery as a lesser included offense. Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971).

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Larry BONNER v. STATE.
    1 Div. 140.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      A1 Pennington, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of robbery. The court fixed his punishment at imprisonment for ten years and sentenced him accordingly.

Appellant is represented by counsel appointed by the court by reason of the indi-gency of appellant. The only issue raised on appeal is thus stated in appellant’s brief:

“Whether appellant was inadequately represented by counsel at the trial of his case to the-extent that it would deny him his Sixth Amendment rights to adequate counsel?”

The main contention of appellant is that his attorney on the trial did not invoke rulings of the trial court by objection or motion as to certain evidence introduced by the State, by a motion to exclude the evidence at the conclusion of the State’s evidence and by requests for the general affirmative charge in favor of defendant, and that by reason thereof appellant cannot obtain a successful review of the judgment of the trial court. He states in his brief:

“While the trial itself was not‘in all likelihood and from looking at the transcript could not be considered a farce, sham, or mockery in the presentation of evidence, it does appear to have a different look when viewed from the perspective of protection of the trial record for purposes of a potential appeal. The failure of trial counsel to make timely objections and motions in opposition of out of court identification, the sufficiency of the state’s case, or the sufficiency of the entirety of the evidence to sustain a verdict of guilt effectively removes these avenues of appeal from the Appellant’s repertoire. Therefore, Appellant is left naked in his efforts to allege grounds for an appeal.”

Appellant thereby raises, indirectly at least, an extraordinarily interesting question, one that has been often pondered, but seldom, if ever, expressed: Does an attorney representing a defendant in a jury trial of a criminal case fail to meet the standard required of him if and when he fails to invoke a ruling of the trial court as to the sufficiency of the evidence to justify a submission of the case to the jury? Perhaps that question cannot be answered “yes” or “no” with absolute certainty. Such an answer is not necessary in this case, and we will not attempt it. However, we can hardly escape in this case some consideration of the question.

Bearing in mind the restriction upon the ability of an appellate court t.o reverse the judgment of a trial court on the ground of the insufficiency of the evidence to support the verdict of a jury unless action of the trial court has been appropriately invoked by defendant, it can with confidence be stated that attorneys generally learn during an early period of their trial experience that almost always they should appropriately invoke rulings on the subject. On the other hand, it is a known fact that sometimes highly regarded attorneys do not do so. If such inaction is more than a mere inadvertence, sometimes caused by concentration upon matters of paramount importance in the case, the stated reason would probably be that defendant was unquestionably not entitled to a favorable ruling on the subject, which, if invoked, would have been futile. Even then, however, the propriety of such inaction is highly questionable, for the danger of the consequences of fallibility is obvious. That an attorney would have much to regret is an understatement, if he has failed to invoke a favorable ruling for a defendant on the ground of the insufficiency of the evidence to justify a submission of the ease to the jury if, indeed, he was entitled to such a ruling and there was no other basis of vitiating a verdict finding the defendant guilty. It is to be kept in mind, of course, that the same or lesser ground would entitle him to a favorable ruling on a motion for a new trial. Code of Alabama 1975, § 15-17-5. Nevertheless, the remedy in the form of a motion for a new trial is not without procedural hazards.

In the instant case, there was undisputed evidence that the alleged victim was robbed as charged in the indictment. The victim identified the appellant as one of the four men who robbed him. A spectator or customer at the washeteria where the alleged victim was robbed testified that appellant was one of the men who committed the robbery. Defendant would not have been entitled to a ruling in favor of defendant on any motion to exclude the evidence or on any request for a directed verdict or general affirmative charge in favor of defendant. We must conclude, also, that any invocation by defendant of such a ruling would have been futile. As to this, there is no contention to the contrary, and no such contention can reasonably be made. For that reason, there was no injury to defendant as a result of his attorney’s failure to invoke a ruling of the trial court on the question of the sufficiency of the evidence to justify a submission of the case to the jury.

Appellant weaves into his main contention a claim that defendant’s attorney on the trial was at fault in not objecting to evidence presented by the State as to the alleged victim’s corroboration of his in-court identification of defendant by his previous out-of-court identification of a photograph of defendant shown him by officers, together with photographs of other people. It cannot be said that such action or such inaction of counsel is necessarily detrimental to the welfare of a defendant. It is often the case that defendant gains much by his introduction, or permitting the introduction by the State, of evidence of photographic out-of-court identification and thereby disparaging in the minds of the jurors the in-court identification. We should not endeavor to outguess or outjudge defendant’s attorney on the point. This is especially true in view of what we deem to have been the very excellent service rendered defendant by his trial attorney, as now stated.

Although the verdict of the jury is unquestionably supported by the evidence and should not be disturbed, defendant’s attorney handled the defense in a most commendable way that gave unusually good ground for a verdict that defendant was not guilty. Defendant’s counsel found some weakness in the testimony of the victim as to his identification of defendant. He also found and disclosed to the jury, in the most favorable light possible to the defendant, a facially likely reason for disbelieving testimony of the other witness who identified defendant as one of the robbers. By the testimony of defendant himself, defendant’s mother and others, he presented the defense of an alibi that was calculated to weaken materially the State’s case. He did not convince the jury that his client was not guilty, but he has convinced us that he did the best he could and that the best of others would probably have done no better.

There is no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Myles Edward CRAIG v. STATE.
    1 Div. 155.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Raymond A. Pierson, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for burglary in the second degree. Sentence was five years’ imprisonment.

I

Although the evidence was circumstantial, it was abundantly sufficient to support the conviction.

At approximately 3:45 on the morning of December 20,1979, Mobile Police Officer R. B. English was on patrol in a business area of Mobile. As he approached an automobile parked on the side of a service road, the headlights of the vehicle came on and the automobile pulled out in front of him. Officer English stated, “I knew the area well, there’s no movement around there at night in the morning hours.”

Officer English stopped the automobile. The defendant’s brother was driving. The rear seat had been removed from the car and there was a key in the lock of the trunk. The automobile was registered to the defendant. The defendant was not present.

After releasing the defendant’s brother, Officer English returned to the spot where he had originally seen the automobile. From that location he observed that The Kelly-Springfield Wholesale Tire Center had been broken into. There were tires lying in the grass outside the warehouse.

English observed a path in the high grass from the warehouse to a muddy ditch which “opened up” to the service road. The ditch was filled with water, eight to twelve inches deep.

Later that morning Robert Edgar Jenkins, the warehouse manager, found his “red two-wheel dolly” in the field near the warehouse and one of his tires in the ditch alongside the service road. He described the trail leading from the building to the ditch: “And the weeds and the brush had been mashed down like there’d been quite a bit of traffic, you know, walking and whatnot in that area.” Jenkins found that eighty-five tires were missing from his warehouse.

After receiving a radio dispatch, Officer F. D. Jackson went to Bullshead Street which was about one quarter mile from the vicinity of the warehouse. He testified without objection:

“When I answered the call; first I had received the call that there were two black males in this car and each time they would arrive at the eighteen hundred block of Bullshead Street, they would unload merchandise.”

When Officer Jackson arrived, the defendant’s brother was up on the front porch of a house. The defendant was “stooped down” beside a car and a hedge bush. Jackson testified, “As I pulled up the subject-as he seen the patrol car I spotted him, that’s when he stooped.” There were three or four new tires lying near the defendant. More tires were found on the back porch.

At 3:45 that morning, Sergeant O. C. Lockett received a call to proceed to the tire warehouse. Later he went to Bullshead Street where he saw tires from the warehouse.

“There were several automobile tires in the front yard in plain view that had like labels on 'em as I’d seen in the Kelly-Springfield Warehouse. The yard had additional tires in it; and the rear yard and the rear porch had a large quantity of these tires in it.”

Lockett described the defendant:

“He was dirty. His clothes, his pants in particular had a large quantity of both water and mud on ‘em. His-they were entirely soaked from just below the knees, all the way down.”

This was “shortly after four o’clock in the morning.”

The defendant told Sergeant Lockett that Louis Craig, his brother, had been working on his automobile and that he had just come by to see if his brother had finished so he could pick up his car. The defendant could not explain why he hid when Officer Jackson arrived. Forty-six tires were found at the house.

Mr. Jenkins was taken to Bullshead Street. He testified that both the defendant and his brother were “quite dirty and muddy, but one in particular was quite wet up to about knee high.” Either the defendant or his brother had tried to break into Mr. Jenkins’ warehouse before. Jenkins testified that the tires found at the house on Bullshead Street had his shipping label on them.

The defendant maintains that the evidence is insufficient to support his conviction in that the facts do not show that he was in actual or constructive possession of any stolen tire. We disagree.

The evidence, although circumstantial, was clear and cogent leading to the inescapable conclusion that the defendant was guilty as charged. We do not think that the facts of this case justify any verdict other than that of guilty.

II

The defendant maintains that the trial judge erred in not giving his requested charge containing the principle that the presumption of innocence is a matter of evidence. There is no merit to this argument.

Before any witness testified, the judge instructed the jury on this same principle: “[T]he Defendant is presumed to be innocent; and that presumption of innocence is a fact in the case just as though it were brought you by testimony from this stand.” Although the circumstances of each particular case will govern, there may be no error in refusing a requested charge where that charge was fairly and adequately covered by the trial judge in his opening remarks to the jury. Gaston v. State, 359 So.2d 1170 (Ala.Cr.App.1978).

In his oral charge to the jury at the close of the trial the judge again covered this principle: “[T]he Defendant, who is presumed to be innocent under our law and who has no burden of proving his innocence because that’s a presumption of law which is evidence in the ease; a fact in the case just as though it has been testified to from this stand.”

The judge also gave one of the defendant’s written requested charges which stated, “the defendant enters into this trial with a presumption of innocence, and this is a fact in the case which must be considered with all the evidence.”

Ill

The defendant also alleges that the trial judge did not instruct the jury on the principle that mere presence at the scene of a crime in insufficient to establish guilt as requested in two of the defendant’s written charges.

The refusal of the requested charges was not reversible error. In view of the overwhelming evidence of the defendant’s guilt, if any error were committed by the refusal of the charges, that error was harmless beyond any reasonable doubt. The reasonable inferences from the Staté’s evidence support the finding that the defendant was more than merely present.

The trial court did charge the jury that before the defendant could be found guilty as an accomplice, they must find that there was a prearrangement or conspiracy to commit the offense.

Although the charge requested by the defendant is a correct statement of law, Watkins v. State, 357 So.2d 156, 159 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978), it is not reversible error to refuse a charge which merely states an abstract principle of law without containing instructions as to the effect such doctrine has on the issues involved in the case. Williams v. State, 36 Ala.App. 26, 58 So.2d 646, cert. denied, 257 Ala. 337, 58 So. 653 (1952). Here, there were actually two “scenes” involved. The defendant was charged in count one with burglary. The “scene” of this crime was the Kelly-Springfield Wholesale Tire Center. The second count of the indictment charged buying, receiving or concealing stolen property. The “scene” of this crime was the house on Bullshead Street where the defendant and the tires were found. Under these conditions, a charge that mere presence at the scene of a crime is insufficient to establish guilt tends to be confusing. The question then becomes mere presence at which scene to establish guilt of which crime.

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

AFFIRMED.

All Judges concur.


text:
    Darrell Ray ANDERSON v. STATE.
    1 Div. 156.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    M. A. Marsal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for second degree burglary. Sentence was five years’ imprisonment. The defendant is represented by retained counsel both at trial and on appeal.

I

The defendant argues that his motion to dismiss the indictment should have been granted because the indictment is unclear as to whether it includes one or two counts.

Omitting its formal parts, the indictment charges that the defendant:

“Did, with intent to steal, break into and enter an uninhabited dwelling house, to-wit, a large wooden frame house, located in the New Hope, Alabama, community, in the possession of Donald R. Burkette, which is specially constructed or made to keep goods, wares or merchandise, two (2) ‘Remington’ brand 12-guage Model 1100 shotguns, one bearing Serial Number M-875971V, and the other bearing Serial Number 44497V, and one having a 26-inch improved cylinder barrel and the other having a 28-inch barrel, better descriptions of which are unknown to the Grand Jury, in which goods, wares or merchandise, two (2) ‘Remington’ brand 12-guage Model 1100 shotguns, one bearing Serial Number M-875971V, and the other bearing Serial Number 44497V, and one having a 26-inch improved cylinder barrel and the other having a 28-inch barrel, better descriptions of which are unknown to the Grand Jury, were kept for use, sale or deposit.”

Burglary in the second degree is defined by Alabama Code Section 13-2-41 (1975). The form of an indictment for this offense is found in Alabama Code Section 15-8-150(28).

“A. B. did, in the daytime, with intent to steal (or to commit arson in first degree, or other designated felony, as the case may be, or in the alternative), break into and enter an inhabited dwelling house (or other house or building within the statute, describing it, and giving the name of the owner or person in possession), which was occupied by C. D., a person lodged therein or A. B. did with intent to steal (or to commit arson in the first degree, or other designated felony, as the case may be, or in the alternative), break into and enter an uninhabited dwelling house, or a building, structure or other enclosure (describing it and giving the name of the owner or person in possession) within the curtilage of a dwelling house, though not forming any part thereof, or a shop, store, warehouse (or other building, structure, or enclosure within the statute, describing it, giving the name of the owner or person in possession) which is specially constructed or made to keep goods, wares, merchandise or other valuable thing (describing the article) in which goods, wares, merchandise or other valuable thing (describing it) was kept for use, sale or deposit (as the case may be or in the alternative), against, etc.”

By omitting portions of this form, it becomes readily apparent that the indictment was a cumbersome attempt to follow the language of the form.

This indictment represents the familiar principle of unnecessary particularity of averment. While the indictment tends to be confusing for this very reason, it is clear that the subject of the burglary was an “uninhabited dwelling house, to-wit, a large wooden frame house, located in the New Hope, Alabama, community, in the possession of Donald R. Burkette” in which two shotguns of a given description were kept.

In Porter v. State, 17 Ala.App. 550, 86 So. 143 (1920), we find the following:

“The demurrers to count 1 of the indictment [charging burglary of a dwelling house] were properly overruled, as an indictment for burglary in a dwelling house need not allege that goods, wares, or merchandise, or other valuable things were kept for use, etc.; such words applying only to the buildings or structures named in the second clause of section 6415 of the Code of 1907 [now Alabama Code § 13-2-41 (1975)]. Potter v. State, 92 Ala. 37, 9 So. 402; Gilmore v. State, 99 Ala. 154, 13 So. 536; Matthews v. State, 15 Ala.App. 670, 74 So. 759. An averment of this character, if made, would be descriptive of the house, and, though unnecessary to be alleged, yet if it is alleged it would be necessary for the state to prove it. Lindsay v. State, 19 Ala. 560; Johnson v. State, 35 Ala. 363, and numerous later cases .to the same effect.”

To the same effect see Diggs v. State, 20 Ala.App. 213, 101 So. 357 (1924).

In Evans v. State, 34 Ala.App. 534, 41 So.2d 615 (1949), count two of the indictment described the burglarized building as “an uninhabited dwelling house owned by Willie Pope and in possession of said Willie Pope, where goods, wares, merchandise were kept for use, sale or deposit.” The court found this description of the house sufficient to withstand the test of a demurrer and gave explanation:

“An indictment for burglary of a dwelling house need not allege that goods, wares, merchandise, or other valuable things were kept therein for use, etc., such words or phrases applying only to the buildings, structures, etc. named in the second clause of Section 86, supra. Porter v. State, 17 Ala.App. 550, 86 So. 143.
“The reason for such rule is obvious. The very term dwelling house denotes that it was occupied, and used by some person as a home, though it may be inferred from the adjective ‘uninhabited’ that the person living therein was temporarily absent at the time of the burglary. It follows naturally that a dwelling house must normally contain goods, etc. to facilitate its use as such. On the other hand, a building, structure, etc., unless shown by an averment to that effect may reasonably be presumed to be empty, thereby affording no reasonable or satisfactory basis on which to found any larcenous or other felonious intent by reason of entry there-into.” Evans, 34 Ala.App. at 536, 41 So.2d 615.

On this authority, we find that the indictment was sufficient and that the trial court did not err in overruling the defendant’s motion to dismiss.

II

The trial court properly denied the defendant’s request for a mistrial based on juror misconduct. The evidence reveals that a juror had a conversation with an individual who was the wife of one State witness and the mother of another. Both the individual and the juror were extensively questioned as to the substance of the conversation. Each testified that there was no mention of anything concerning the case. The record supports the ruling of the trial judge denying the mistrial. While the conversation was an unauthorized communication, there is no valid claim that it might have unlawfully influenced the juror or other members of the jury. Bascom v. State, 844 So.2d 218, 222 (Ala.Cr.App.1977).

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

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Leland SPENCER v. TOWN OF GORDO.
    2 Div. 279.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Robert Prince, Tuscaloosa, for appellant.
    W. 0. Kirk, Jr., Carrollton, J. T. Simonet-ti, Jr., Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Appellant was convicted in the Gordo Municipal Court for violating the prohibition law and appealed to the circuit court where he was again found guilty and sentenced to six months hard labor and assessed a $500 fine.

On an undisclosed date in July 1979, Gor-do Police Officer David Abstein arrested appellant on the instant charge. A pretrial hearing was held on the appellant’s motion to suppress evidence found in a search of his automobile. Abstein testified that appellant had a reputation as a bootlegger and had two prior convictions for that offense. He said the police “had been having problems with him in town” and had complaints about his bootlegging activity. Therefore, the police “set it up to have him watched as he went into the State Liquor Store” in Northport in adjoining Tuscaloosa County.

On the date in question, an undisclosed informant called the Gordo city clerk and informed her that the appellant “had just left the liquor store and he had-appeared that he had bought a good quantity of alcohol and that he was in a black Volkswagen.” The city clerk then informed Officer Abstein who in turn made an affidavit of those same facts back to the same city clerk who issued a search warrant to Officer Abstein to search the appellant’s automobile. Abstein said he first tried to eon-tact the municipal judge for a warrant, but on finding him to be out of town, he obtained the warrant from the city clerk.

Abstein sent a city employee to a truck stop on the highway coming into the county from Northport. The employee was armed with a “walkie-talkie” radio and was to follow the appellant and radio to Abstein which one of several roads the appellant would take into Gordo. The surveillance went as planned, and Abstein set up a roadblock within the town’s police jurisdiction and stopped the appellant who was driving a black Volkswagen as described by the informant. Officer Abstein told appellant he was going to have to search his car, and appellant asked if he had a search warrant. Abstein produced the city clerk’s warrant and proceeded with the search. He found “two half gallons of bourbon and two pints” in the car and placed appellant under arrest.

The only issue on appeal concerns the legality of the search. The city admits the invalidity of the search warrant issued by the city clerk, but contends the search was nevertheless valid because of the existence of probable cause coupled with exigent circumstances.

Probable cause may be based upon hearsay information received from an informant provided it meets two tests. Those two tests, or dual “prongs” as they are commonly referred to, are (1) the veracity prong and (2) the basis of knowledge prong. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The testimony of Officer Abstein fails to meet the veracity prong of Aguilar by failing to show in any way that the undisclosed informant was reliable or had a record of reliability in the past. However, the basis of knowledge prong was met when the informant told the city clerk that he had just witnessed the appellant leave the liquor store with a quantity of liquor and driving a black Volkswagen. Thus, the informant’s tip fails one of the tests or prongs of Aguilar, supra.

In Hatton v. State, Ala.Cr.App., 359 So.2d 822, 826 (1977), writ quashed, Ala., 359 So.2d 832 (1978), this court stated:

“If the tip fails one of these prongs, the informant’s report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a ‘magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.’ This is the self-verifying tip. Spineili v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. . .. Finally a tip that will not meet any of these standards may still be used in conjunction with a number of other factors of ‘further support’ to show probable cause.” (Citations omitted.)

The facts and circumstances within Officer Abstein’s knowledge at the time of the search were (1) the informant’s tip, (2) the officer’s knowledge of both the informant and the appellant, (3) the reputation of the appellant as a bootlegger and a dealer in illegal liquor, and (4) the officer’s personal verification of the informant’s report. Apparently the informant was a state employee in the State Liquor Store in Northport; however, that fact is not shown in the record and therefore cannot be considered here as a factor even though it may have been a fact within the officer’s knowledge bearing upon the informant’s credibility with him.

Reviewing the factors in the instant case, we find an undisclosed informant relaying information that he had seen the appellant leaving the State Liquor Store in Northport with a quantity of liquor and driving a black Volkswagen. Officer Ab-stein then set out to verify that information. He had a city employee posted on the highway between Northport and Gordo. That employee observed the appellant driving a black Volkswagen in the direction of Gordo. He followed the appellant and radioed his route of entry into the town to Officer Abstein who then intercepted the appellant.

There is a distinct similarity in the facts in this case and in Hatton, supra, giving rise to the search and seizure of the respective automobiles. Applying the language of Hatton to the instant case in light of the facts and circumstances within the officer’s knowledge, we do not think he could have ignored, consistent with his duty to enforce the law, the inference that illegal liquor was probably in possession of the appellant. Further, from Hatton, at 829:

“We recognize that the probable cause present in this case represents the bare minimum necessary for a valid search without a warrant. Yet here we have more than a mere whim, caprice, or naked suspicion. 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.. . . ”

Probable cause alone does not justify a warrantless search-it must arise coincidentally with exigent circumstances. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Exigent circumstances exist whenever an object to be searched is mobile or movable, such as an automobile. Ex parte State of Alabama ex rel. Attorney General (Re: Reid v. State), Ala., 388 So.2d 208, (1980); Rickman v. State, Ala., 361 So.2d 28 (1978).

AFFIRMED.

All the Judges concur.


text:
    Bernard Leon HARPER v. STATE.
    2 Div. 284.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      W. W. Dinning, Jr., of Lloyd, Dinning & Boggs, Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the grand larceny of five calves belonging to Harold C. Bryan. Sentence was ten years’ imprisonment. On appeal the defendant contends that the evidence is insufficient to support the jury’s verdict because: (1)The only evidence of the identity and ownership of the stolen calves was based on hearsay testimony and (2) the circumstantial evidence did not exclude to a moral certainty every reasonable hypothesis but that of guilt.

We find that the evidence of the defendant’s guilt is substantial and certainly sufficient to support the verdict.

I

Beyond question, the State proved that the cattle stolen belonged to Harold C. Bryan through his own testimony.

“Q. You could tell, in your own mind, what particular five were missing?
“A. Right, they was bull calves.
“Q. Did you later see these calves?
“A. Yes, sir.
“Q. And, where did you see them?
“A. Meridian Stockyard.
“Q. And, when was that?
“A. The same day about one o’clock or a little before.”

Langford Stephens is a Livestock Theft Investigator for the State of Alabama. His testimony was without objection.

“Q. Were you there when Mr. Bryant came to the stockyard?
“A. I was.
“Q. Did he identify these cattle?
“A. He did. He identified it as the calves he had in that pen on a Sunday. The last time he saw them was on a Sunday.”

Prom this testimony, it is clear and certain that the State proved the identity and ownership of the stolen property.

II

This was a strong case of circumstantial evidence.

The State proved that five calves belonging to Mr. Bryan were stolen and that these same five calves were later found in The Meridian (Mississippi) Stockyard. Two witnesses who worked in the stockyard testified that these same five cattle were brought to the stockyard by the defendant. These witnesses were absolutely positive in their identification of the defendant.

The unexplained possession of recently stolen property is a fact from which the jury may infer the defendant’s guilt. Bryant v. State, 116 Ala. 445, 23 So. 40 (1898); Jones v. State, 373 So.2d 1221 (Ala.Cr.App.), cert. denied, Ex parte Jones, 373 So.2d 1225 (Ala.1979).

The fact that the defendant and his brother bore a striking resemblance to each other presented a jury question on the identity of the thief. Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960). A jury question is always presented where there is a conflict between the State’s case and the defendant’s alibi. Crow v. State, 365 So.2d 1254 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1256 (Ala.1979).

We have searched the record for error prejudicial to the defendant. Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


text:
    John Charles WATKINS, alias v. STATE.
    2 Div. 285.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      William T. Coplin, Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Second degree burglary; sentence: four years’ imprisonment.

The appellant was charged with breaking and entering the Shiloh Butcher Shop “with intent to commit murder or another felony.” The evidence shows a breaking and entering, and the only element of the offense in issue on appeal is whether the appellant had the requisite intent to murder or commit a felony when he so entered the shop.

The evidence shows that appellant’s wife was working in the butcher shop on December 13, 1979, when the act in question took place. From around 3:00 to 4:00 p. m. the appellant entered the shop three times. He had been drinking and was “under the influence” of alcohol. Each time he told his wife to get her pay check and come home with him, that she was not going to work there anymore. Each time the wife told him to wait another thirty to forty-five minutes until closing time. She also told appellant she was not quitting her job because he was unemployed and she needed the money for their children.

Mr. W. B. Harris, owner of the shop, ordered the appellant to leave on the third such occasion and locked the door behind the appellant when he left. Shortly thereafter the appellant “bumped” or pushed the double doors in such a way that the latch slipped open, and he reentered the shop. The evidence completely negates any intent on the part of the appellant to steal, and the court charged the jury only concerning the intent to commit murder. With appellant’s fourth and forceful entry, the evidence varies to some degree.

Appellant’s wife, testifying for the State, said she walked to the bathroom of the shop to get her purse when she saw appellant enter the shop the fourth time. She said he followed her to the bathroom, pushed the door open, and again ordered her to get her purse and leave with him. From the record:

“He was talking and he told me that he wanted me to quit-wanted me to get my purse and let’s go right damn now .... [A]nd he caught me around the neck and asked me, said you gone [sic] get your damn purse and let’s go. Say, I want you out of here now.”

She said the appellant was not choking her. W. B. Harris then came up with a pistol and ordered appellant to leave, but he refused to go, saying “ ‘you give my wife her check and we both will get out . .. ’cause I‘m not leaving until she go [sic].’ ” Whereupon Harris shot the appellant in both legs.

Mrs. Doris Harris, wife of the store owner, testified that the appellant entered the store four times on the afternoon in question. On the second entry, she asked him to leave and he complied. On the third entry, her husband put the appellant out and locked the door behind him. The appellant was trying to make his wife leave the shop and go home with him. He was drinking, but Mrs. Harris did not hear him cursing or talking unusually loud. Upon the fourth entry by the appellant, which was forceful, Mrs. Harris saw the appellant’s wife run to the bathroom and saw appellant run after her. She did not overhear the conversation between the two and did not see any “tussling or fighting” between them.

Harris testified that he was in the rear of the shop when he was told the appellant had reentered the store. He saw the appellant’s wife enter the bathroom and try to close the door, but the appellant shoved it open and also entered. Harris did not hear what was said between the couple in the bathroom, and his only description of how the appellant was holding his wife was that “he had his arm on her neck like this.” Harris arrived with a pistol and confronted appellant who, according to Harris, advanced on him. Harris then shot the appellant twice in the legs, ending the fracas.

At the end of the State’s case in chief, counsel for appellant moved to exclude the State’s evidence for, among other grounds, failure to prove the necessary felonious intent. The trial court overruled the motion.

Section 13-2-41, Code of Ala.1975, the second degree burglary statute, makes it a felony punishable from one to ten years’ imprisonment for “any person who, in the daytime, with intent to steal or to commit a felony, breaks into and enters . . . any shop, store, warehouse or other building ... in which any goods, wares, merchandise or other valuable thing is kept for use, sale or deposit. ...”

That statute, having no antecedent at common law “must be strictly construed within the words used.” Cartwright v. State, 54 Ala.App. 538, 310 So.2d 258 (1975). All criminal statutes are strictly construed in favor of persons sought to be subjected to their operation, Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956), and such statutes reach no further in their operation or meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).

Testing the appellant’s motion to exclude by only the evidence before the court at the time the motion was made per Kent v. State, Ala.Cr.App., 367 So.2d 508, cert. denied, Ala., 367 So.2d 518 (1978), we find the following:

1. The testimony of each witness completely negates an intent to steal on the part of the appellant. Neither did the State contend at trial nor on appeal that appellant ever intended to steal anything upon entering the shop.

2. The testimony of each witness shows the appellant was trying to get his wife to leave the shop during his several visits that afternoon.

3. After appellant entered the bathroom with his wife, he had his arm around her neck in a manner not specified in the record. She testified he was trying to force her to leave with him and to quit her job. Neither W. B. Harris nor Mrs. Harris heard the bathroom conversation.

4. Appellant exhibited no weapon upon entering the shop and had no weapon in his hand when he had hold of his wife in the bathroom.

From a careful review of all the testimony presented, we find no evidence from which a jury could infer that appellant had the intent to murder his wife when he forcibly entered the shop. For the instant charge to stand, the intent to commit a felony must have existed at the time the breaking and entering occurred. Young v. State, 51 Ala.App. 400, 286 So.2d 76 (1973). That is, in the instant case, the appellant must have broken and entered with the concurrent intent to commit murder. Therefore, a person who breaks and enters with no intent to commit a felony, but who after entry forms such an intent is not guilty of the statutory offense herein specified. Jackson v. State, 102 Ala. 167, 15 So. 344 (1893).

In the instant case the totality of the evidence points only to the appellant’s intention to remove his wife from the premises. There are no articulable facts showing that he intended to kill her. In fact, had the State charged appellant with the crime of assault with intent to murder, the evidence would not support that offense. The scintilla rule does not apply in criminal cases, and a conviction may not rest on speculation. McArdle v. State, Ala.Cr.App., 372 So.2d 897, cert. denied, Ala., 372 So.2d 902 (1979).

Considering the severity vel non of the attack; the lack of any verbal threat to kill; the absence of any deadly weapon during the particular attack; and the victim’s own testimony that appellant was not choking her, but was only trying to force her to go home with him, no such conviction would stand only on the testimony that appellant had his arm around his wife’s neck during a domestic squabble. Neither will it support the felonious intent element necessary to a conviction for second degree burglary. Such a conviction under the evidence would be “wrong and unjust.” Gilchrist v. State, 27 Ala.App. 401, 173 So. 649 (1937).

By mandate of the United States Supreme Court, a conviction based upon insufficient evidence must be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Neither may the appellant be retried for a lesser included offense, Coleman v. State, Ala.Cr.App., 373 So.2d 1254 (1979), although he may be tried for some other separate and distinct offense which arose from his actions in question. White v. State, Ala.Cr.App., 383 So.2d 888, cert. denied, Ala., 383 So.2d 892 (1980); Brown v. State, Ala.Cr.App., 367 So.2d 557, cert. denied, Ala., 367 So.2d 559 (1979); Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940).

REVERSED AND RENDERED.

All the Judges concur.

TYSON, J., concurs in result.