text:
    John Paul DEJNOZKA v. STATE.
    8 Div. 372.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    Richard A. Kempaner, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

First degree burglary; sentence: 150 years’ imprisonment.

This case is the culmination of a massive investigation in Madison County involving burglaries and sexual attacks on women commonly referred to as the “Southwest Molester” case.

Around 10:30 p. m. on September 19, 1979, the prosecutrix saw that all the doors and windows of her house were closed, and she went to bed. In the early morning hours before daylight, she was awakened by a man standing over her. He bound and gagged her and put tape over her eyes. He likewise bound her seven-year-old son who was in the bed with her.

The assailant rolled the prosecutrix off the bed and cut her clothes off her. He then cut her inside the vagina, down the length of one leg, and around the breast area. However, he did not rape her. Before leaving he demanded money, but she had none.

During the ensuing investigation, a passer-by informed the police that he had seen a “small blue car” parked in the area close to the scene of the crime around the time in question. Officers made plaster casts of tire prints found in the soft ground in the area and took them to local tire dealers for possible identification. They found the tread pattern to be that of a Bridgestone tire, a brand of tire used as standard equipment on Japanese cars such as Honda, Subaru, Toyota, Mazda and Datsun. The condition of the tire tread indicated it had been driven for 4,000 or 5,000 miles.

With the tire brand known, the officers then went to a foreign car dealer in the area. They found the tire print to match exactly the tires on a new Subaru. The Subaru dealer gave the officers the name of the appellant from a sales contract, and a background investigation was started on him. Officers found that the appellant had been charged earlier with an offense in Alton, Illinois, which had many similarities to the offense being investigated. A further check with the Alabama Department of Public Safety revealed that the appellant had an Alabama driver’s license which had expired.

Based upon the above information, Huntsville Police Detective Charlie Norment sent officers to arrest the appellant and bring him in for questioning. The appellant was arrested while driving his automobile and was brought to the police station on September 21, 1979, around 6:30 p. m. No warrant for his arrest was procured prior to his questioning although one of the officers swore out a warrant after he was questioned.

The appellant argues two grounds for reversal on appeal: (1) that his warrantless arrest was illegal for lack of probable cause, thereby making his later confession inadmissible, and (2) that the confession was improperly induced as the result of promises made to obtain psychiatric help for him and to drop all but one charge if he made a statement.

I

Section 15-10-3, Code of Ala.1975, provides that an officer may make a warrant-less arrest when “a felony has been committed and he has reasonable cause to believe the person arrested committed it.” Pursuant to that section, our courts have held that a warrantless arrest of a defendant is lawful where the officer had reasonable cause to believe the person arrested committed a felony. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968); Aaron v. State, 54 Ala.App. 71, 304 So.2d 625 (1974).

In Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed.2d 1879 (1949), it is stated:

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

In Maples v. State, 44 Ala.App. 491, 214 So.2d 700 (1968), our former court of appeals adopted á statement from Schook v. United States, 337 F.2d 563 (8th Cir. 1964):

“ ‘Reasonable grounds for suspicion when accompanied by facts or circumstances strong enough to justify a reasonably cautious man to believe the guilt of the suspect, suffice to constitute probable cause necessary for arrest without warrant.’ ”

See also Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied, 292 Ala. 741, 298 So.2d 639 (1974).

In the instant case, the facts unearthed by the investigating officers clearly establish reasonable or probable cause to believe the appellant committed the instant offense. Therefore, on determining that probable cause to arrest existed, the next question is whether the arrest was legal where the officers failed to formally procure an arrest warrant before making the arrest.

In Rickman v. State, Ala.Cr.App., 361 So.2d 22, reversed, Ala., 361 So.2d 28 (1978), officers had probable cause to obtain a search warrant at 11:00 a. m. on the particular day in question. However, they failed to obtain a warrant and instead set up surveillance at a particular point around 1:00 p. m. and waited for the appellant to arrive by automobile. The appellant appeared at 4:15 p. m. and was stopped, seized and searched at that time without a warrant. Our supreme court held that the officers, on first having probable cause, were not required to obtain a warrant before making the seizure. The court there cited United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), which held:

“The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.”

In another case dealing with the fourth amendment, more particularly automobile searches, the Supreme Court in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), said:

“Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. .. . The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.”

In the instant case, for all the investigating officers knew, the appellant may have been committing or preparing to commit another sexual assault at the time his arrest was ordered. Considering the circumstances surrounding this case, we do not find that it was mandatory for the police officers to first seek out a magistrate and attempt to obtain an arrest warrant before dispatching officers to pick up the suspect and bring him to the police station.

Both Brown v. Illinois, 442 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), held confessions to be invalid which were obtained after warrantless arrests not based upon probable cause. In both of those cases, the arrests were based on mere suspicion which was the reason they were held to be invalid. Neither of those cases hold an arrest based upon probable cause to be invalid merely because a warrant was not first obtained. In fact Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), held that incriminating statements, freely given during the course of a warrantless detention, were admissible under the circumstances set out in that case. There, the petitioner was detained with others at a residence while the police sent for a search warrant after smelling marijuana on the premises. The petitioner, while being detained without probable cause, made certain incriminating statements. The Supreme Court found the statements to be admissible where the illegal detention was about forty-five minutes in length, where there was a “congenial atmosphere” between the officers and the petitioner, and where his statement was shown to have been freely given and not obtained through coercion. In that instance that Court found the petitioner’s statements to have been “unaffected by the initial illegality.”

In the instant ease, the appellant was taken into custody around 6:30 p. m. and was questioned after being given the Miranda warning. Miranda and voluntariness predicates were established to the satisfaction of the trial court. The appellant consented to a search of his apartment and around 8:30 or 9:00 p. m. went with the two officers to the apartment and stayed with them during the search. He was not handcuffed and was free to use the bathroom and move around. On the way to the apartment, the officers bought him food when he said he was hungry. They returned to the police station around 11:00 p. m.

When the officers and the appellant returned to the police station, he requested to talk with his brother and his employer. They were called by the officers, and all questioning stopped until after they arrived and talked with the appellant. . After the three finished talking in private, outside the hearing of the officers, the appellant indicated that he wanted to make a statement, and he then gave a confession in the presence of the officers and his brother and employer around 2:00 a. m.

The fact of custody alone has never been enough in and of itself to demonstrate a coerced confession. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). An illegal arrest, without more, does not bar a subsequent prosecution. Neither is it a defense to a valid prosecution. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 65 L.Ed.2d 537 (1980). Thus, the next question is whether the confession was voluntarily given.

II

The trial court heard several witnesses on the question of the voluntariness of the appellant’s confession. Huntsville Detective Wayne Sharp initially established the Miranda and voluntariness predicates. He also testified that just prior to the search of the apartment the appellant brought up his need for psychiatric treatment, and the officers told him it would be left entirely up to the court system. The witness said that neither he nor the other investigator with him made any statement to the appellant nor inferred to him that if he would confess to the instant crime that the other cases would be dropped.

The appellants brother, Ludvik Dejnoz-ka, testified that when he came to the police station on the night in question he had a conversation with police officers and Charles Hooper from the district attorney’s office. He said he was told that they wanted to get a confession from his brother, and it was mentioned on several occasions that his brother needed psychiatric help. Likewise, he said he was told that if his brother confessed it was likely that all the other charges would be dropped, and “it would probably be treated as one charge not as a total list of charges.” The witness said Mr. Hooper “indicated” to him that his brother would receive mental care although he did not actually say so. The witness conveyed this to his brother prior to the confession.

The appellant testified in his own behalf at the hearing, and the following took place:

“Q. Did either or both of the officers mention anything to you about only making one case against you?
“A. At that point nothing was mentioned in that context. During the early part of the evening, the primary emphasis seemed to be toward the fact that I needed psychiatric care and they even went to the point of discussing a supposed FBI profile that had been made on my type of case, describing the type of character and so on that would be involved in this type of situation.
“Q. Did you tell them that you felt that you needed psychiatric care?
“A. I didn’t tell them anything during the whole first half of the evening, as I am sure that the officers would testify.
“Q. Did they tell you that they could get you psychiatric care?
"A. They definitely conveyed the idea that the only hope that I had was for their positive testimony saying that I was cooperative and would talk to the officers and if I would not cooperate there was no chance.
“Q. Do you recall whether or not the officer said to you that they would only charge you on one charge?
“A. They did not specifically say that to me, no, sir. They, in fact, like I said nothing was said about that in the early part of the evening. All of the discussions concerning possible imprisonment or how many charges that I would be imprisoned under came later on in the evening after we had left the police station and come back. Now, at that time, there definitely was talk of that in fact.
“Q. What was said?
“A. Specifically, I believe, that it was Detective Sharp, although I couldn’t swear to that, but one of the officers did tell me on that one case alone, first degree burglary in this state there is ten year to life and that they had enough to lock me up for good any way, so it really didn’t make any difference.”

Appellant likewise testified that:

“My brother told me that he had talked to Charlie Hooper, that he had talked to the police officers out there, that I would be charged with a single charge of burglary which carries ten to life, that if I made a complete confession that that is the only one I would be charged with because they could get me any amount of time they wanted on that.”

The appellant’s employer likewise testified at the voluntariness hearing. From the record:

“Q. Mr. Reed, do you remember anything — conversation between you and D. J. and Mr. Hooper or any police officers wherein the defendant was promised that he could go to a psychiatric hospital and that he would never go to jail?
“A. Not in that word, no sir, I think the wording was he needs help and that he needed to be put where he could get psychiatric care but not in those words that you put it, Mr. Simpson.
“Q. Well, did you tell the defendant that he was not going to jail?
“A. No, sir.”

Charles Hooper, an assistant district attorney, took the stand and testified as to the conversation he had with the appellant’s brother and employer prior to the confession:

“Q. Did you ever make a statement to Mr. Reed and to the defendant’s brother that he, the defendant, would only be charged with one offense?
“A. I never used the term one offense. He asked me what was fixing to happen and I told him that he was fixing to be charged with this offense.
“Q. For the Miller Lane offense?
“A. For the Miller Lane offense, but all — in fact I used the term all, I said all of this evidence will be submitted to the grand jury and.it will be ultimately up to the grand jury.
“Q. Did you say to Mr. Reed and to the defendant’s brother that he would not go to jail but would go to a psychiatric institution or the like?
“A. No, sir; D. J. asked me that; he asked me — said I am concerned about my brother’s mental state and he said, you know, what is going to happen and I told him that that was not up to me that that would be up to the court.”

Officer Charlie Norment was recalled as a witness for the State. He said he was present when Hooper had the conversation in controversy with the appellant’s brother and employer. The record reveals the following, in pertinent part:

“Q. Did you hear Charlie Hooper or anyone in your presence — well, let’s just discuss Charlie Hooper, did you hear Charlie Hooper tell Mr. Reed or the defendant’s brother that he would be charged, that the defendant would be charged only on the Miller Lane case and no other?
“A. No, sir.
“Q. Did you hear Mr. Hooper tell these gentlemen, in your presence that the defendant could go to a mental institution and not go to prison?
“A. No, sir.
“Q. Did anyone else in your presence then or at any other time tell Mr. Reed or the defendant’s brother that he would be charged with only one crime and not all of the others?
“A. No, sir, the only conversation that I heard was that they wanted to be explained the system of the process and that we would charge, there would be one charge as far as that night and the rest of the case — or whatever would be presented to the courts and would be out of our hands. That is the idea that I got that they wanted us to explain the system and that the attorney would probably ask for a psychiatric examination and so forth.
“Q. But the conversation was that the police department would charge him with only one crime that night?
“A. Well, yes, sir, we were going to charge on this particular case that night, but the other evidence and so forth on the other cases would be presented to the court and it would be out of our hands and that is the idea that I thought was being given across to the brother and to the defendant.”

When a defendant challenges the voluntariness of his confession, he is entitled to a reliable and clear-cut determination that the confession was voluntarily rendered. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). That issue must first be heard in camera and decided as a matter of law by a trial judge. Lewis v. State, 57 Ala.App. 545, 329 So.2d 596 (1975), affirmed, 295 Ala. 350, 329 So.2d 599 (1976). Once the trial judge has heard the evidence at such a hearing and makes his decision, it will not be disturbed on appeal absent a showing that it was manifestly wrong and against the great weight of the evidence. Balentine v. State, Ala.Cr.App., 339 So.2d 1063, cert. denied, Ala., 339 So.2d 1070 (1976). The federal standard applied is that the trial judge must be satisfied of the voluntariness of the confession only from a “preponderance of the evidence,” although the states may adopt a higher standard. Lego v. Twomey, supra. Alabama follows the “preponderance of the evidence” standard. Baldwin v. State, Ala.Cr.App., 372 So.2d 26, affirmed, Ala., 372 So.2d 32 (1978).

This court stated in McNair v. State, 50 Ala.App. 465, 470, 280 So.2d 171, cert. denied, 291 Ala. 789, 280 So.2d 177 (1973):

“Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty-”

The excerpts from the record herein-above set out are certainly sufficient to support the decision of the trial judge that the confession was voluntarily given by the appellant, whether the standard applied is that of “preponderance of the evidence,” “great weight of the evidence,” or “substantial evidence.”

Ill

The judgment entry states that the appellant was indicted “on a charge of Burglary 1st Degree, and Assault with Intent to Ravish.” The judgment entry states that the appellant “is adjudged guilty of Burglary in the First Degree and Assault with Intent to Ravish.”

The indictment does not charge the appellant with assault with intent to ravish. The indictment contains two counts of first degree burglary only. Count I charges the •nighttime breaking and entering into an inhabited dwelling with intent to steal, and Count II charges the nighttime breaking and entering into an inhabited dwelling with intent to ravish. Each count therefore charges the same breaking and entering but with different intents, thus charging first degree burglary in two separate counts. Section 13-2-40, Code of Ala. 1975.

Section 15-17-3, Code of Ala. 1975, provides:

“When the intent with which, the mode in or the means by which an act is done is essential to the commission of the offense and such offense may be committed with different intents, in different modes or by different means, if the jury is satisfied that the act was committed with one of the intents, in one of the modes or by either of the means charged, it is sufficient; and the jury must convict, although uncertain as to which of the intents charged existed, in which mode or by which of the means charged such act was committed.”

In the instant ease, one breaking and entering was charged, but with a different intent. The jury in finding the appellant “guilty as charged” was apparently convinced that the appellant committed the overt act charged, “although uncertain as to which of the intents charged existed.” In such a case, § 15-17-3, supra, states that “the jury must convict, although uncertain as to which of the intents charged existed.”

In reviewing the record, it appears that the trial court properly charged the jury on first degree burglary and explained the two separate intents charged in the two counts of the indictment. After the jury returned its verdict of guilt, the trial court verbally passed sentence by stating: “In accordance with the verdict of the jury, you are adjudged guilty and it is the sentence of this court that you be placed in the state penitentiary for a period of 150 years.” There was no reference to the crime of assault with intent to ravish (§ 13 — 1—46) prior to the formal preparation of the judgment entry. We therefore conclude that the judgment entry is in error. The appellant’s conviction and sentence for first degree burglary is hereby affirmed, but the cause is remanded to the circuit court with directions to correct the judgment entry to reflect the correct charge set out in the indictment and the correct charge upon which the verdict, sentence and judgment were rendered.

AFFIRMED; REMANDED WITH DIRECTIONS. •

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte John Paul DEJNOZKA. (Re: John Paul Dejnozka v. State of Alabama).
    80-358.
    Supreme Court of Alabama.
    April 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge.

text:
    Michael L. THATCH, alias v. STATE.
    8 Div. 395.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      John Mark McDaniel of McDaniel & McDaniel and Gary V. Conchin of Morring & Schrimsher, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Michael Thatch was indicted for the offense of robbery in the first degree under § 13A-8-41, Code of Alabama 1975. A jury in Madison County convicted him of robbery and he was sentenced to life without parole, after it was determined that he was a recidivist under § 13A-5-9, Code of Alabama 1975.

On January 5, 1980, Alex Aqwunobi was the night desk clerk at the Catalina Motel in Huntsville, Madison County Alabama. On that occasion Aqwunobi was working alone and around 1:40 A.M. two men came into the office. One of them was wearing a red mask and carrying a butcher knife; the other, whom Aqwunobi identified as the appellant, was wearing a brown jacket and did not have a mask. The one with a mask and a butcher knife made Aqwunobi lie on the floor. According to the witness, the second man, or the appellant, made sure that Aqwunobi did not move. Also, during this period, the witness testified that he was “punched” in the neck with the knife and told that they would “cut [him] to pieces.”

After the robbery, the two men ran out of the motel and entered a car parked in front of the office. The witness described the car as “red at the bottom and has a white top.” According to Aqwunobi, two or three hundred dollars were taken, along with his General Electric portable television. Aqwunobi stated that some of the bills were separated from the coins, which were wrapped in rolls. After the robbery, the witness testified that he called the police, and, upon their arrival, he gave them a description of the two men and the car they used when they left the motel.

Officer Phillip Kramer of the Huntsville Police Department testified that, on January 5, 1980, at approximately 1:40 A.M., he and Officer Mullins proceeded to the Catalina Motel in response to a radio dispatch. On their arrival, Officer Kramer received a description from Aqwunobi of the two men who had robbed him and a description of their vehicle. Kramer testified that after receiving the descriptions he then relayed them by radio to other police units.

During cross-examination, Kramer stated that Aqwunobi had at first described the ear used by the two men as a ’64 Ford, but within a minute he changed his mind and told them it was a Cadillac.

Officer Steve Lowhorne of the Huntsville Police Department testified that about 1:40 A.M., on January 5, 1980, he and Officer Warden heard on their patrol car radio that an armed robbery had just taken place at the Catalina Motel, and that the people involved were in a white over red, late model vehicle. About a mile or a mile and one-half from the Catalina Motel they saw an older model vehicle, white over red, which they subsequently stopped. There were two black males in the vehicle, one of whom, who was the passenger in the vehicle, Officer Lowhorne identified as the appellant. Subsequently, Officer Della-Calce, an assistant, arrived.

Officer Della-Calce said he saw the appellant reaching behind him (appellant) and pushing something under the seat. At that point, Della-Calce told the appellant to step out of the car and, after repeating the instruction three times, Della-Calce went around and opened the door on the passenger’s side and appellant stepped out. The seat was searched and a butcher knife was found behind the back seat. The appellant was searched at that time for weapons and a can of mace was found on his person. The appellant was subsequently advised of his constitutional rights. The driver of the vehicle was searched and large amounts of change and bills were found on his person.

On the back seat of the stopped vehicle, Officer Lowhorne saw a portable television set. While Lowhorne was standing near Officer Della-Calce’s patrol car, the appellant asked if Lowhorne would hand him (the appellant) his coat. Lowhorne subsequently opened the door of the car and retrieved the coat, but, before handing it to the appellant, he “checked the pockets.” In one of the coat pockets Lowhorne found a roll of money; he then informed the appellant that he could not give him his coat.

The stopped car was inventoried and later impounded. During the trial, Officer Della-Calce testified that a “black and white G.E. T.V., a brown plastic, imitation leather jacket, a red toboggan, and a checkbook type wallet” were found in the car. According to Della-Calce, all the evidence found in the automobile was turned over to Detective Crumrine.

Jim Crumrine of the Huntsville Police Department assisted Officers Della-Calce and Lowhorne in the search of the vehicle. Crumrine identified the vehicle as being a 1967, white over red Cadillac. During the trial, all the items found in the car were identified by Officer Crumrine and placed into evidence. Further, he said that a “wad of wrapped bills of the approximate value of seventy or eighty dollars” was found in the jacket pockets.

On January 7, 1980, Crumrine conducted a “photographic display” for the victim, Aqwunobi, of approximately six black-and-white photographs showing black males. Upon seeing the photographs, Aqwunobi “immediately” picked the photograph of the appellant. According to Crumrine, no one other than he and Aqwunobi were present at the time the photographic display was shown to the victim.

At the end of Crumrine’s testimony, the State rested its case and appellant made a motion to exclude the State’s evidence on the grounds that a prima facie case of robbery in the first degree had not been shown. The motion was denied and the appellant called only two witnesses: his wife, Mamie Sue Thatch; and Ricky Joe Robinson.

Mamie Sue Thatch testified that neither she nor her husband owned a coat similar to the one introduced at trial. She also said she did not own a butcher knife like the one in evidence, nor had she seen her husband with such a knife.

Ricky Joe Robinson testified that he robbed the Catalina Motel on January 5, 1980, and that Michael Thatch was not the person who participated in the robbery with him. He testified that he did not know the name of the individual who participated in the robbery, but he had seen him at the “VFW Club.” Also, he testified that, after the robbery, he stopped at the “Motel 6,” and the person who had assisted him in the robbery got out of the car. On leaving the “Motel 6” he saw the appellant at a quick stop convenience store hitchhiking. According to Robinson, he gave the appellant a ride and, shortly after, they were stopped by the police.

I

The appellant contends that the trial court committed reversible error in overruling his motion to suppress because the officers did not have probable cause to stop the vehicle; thus, he maintains, the resulting search and seizure were illegal.

The law is well established that an investigatory detention of a motor vehicle is constitutionally permissible where the officer stopping the car has specific and articu-lable reason to believe criminal activity has occurred or is going to occur. Butler v. State, Ala.Cr.App., 380 So.2d 381; Goodman v. State, Ala.Cr.App., 356 So.2d 691; Campbell v. State, Ala.Cr.App., 354 So.2d 325; Herrin v. State, Ala.Cr.App., 349 So.2d 103; Spurlin v. State, 46 Ala.App. 485, 243 So.2d 758.

The evidence in the present case shows that the officers had received a radio call about the robbery describing the get away car and the two black males involved. Within minutes after the robbery, the officers saw a car meeting the description of the escape vehicle approximately a mile or a mile and one-half from the motel and headed away from the motel. At this point, although the officers may not have had probable cause to arrest the occupants of the car, they had sufficient information to enable them to stop the car, pat down its occupants, and investigate. McClendon v. State, Ala.Cr.App., 341 So.2d 174. The officers knew that a felony had been committed and that the automobile they had stopped fit the description of the get away car. Further, the car that was stopped was in the vicinity of the motel where the robbery had occurred. Crane v. State, 55 Ala.App. 619, 318 So.2d 315; Butler v. State, supra; McClendon v. State, supra. See also, Bagony v. City of Birmingham, Ala.Cr.App., 371 So.2d 80.

The strength of the information needed for an “investigatory detention” is much less than that required for an arrest and search. See Bagony v. City of Birmingham, supra.

In order to determine whether the trial court was in error in overruling the motion to suppress, we must consider not only the evidence adduced on the motion itself, but also the trial testimony that came afterwards. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614. Therefore, if the record discloses “articulable facts” which were available to the officer at the time of the stopping, then there was probable cause for the investigatory stop. Based on the record before us,'it is our judgment that the investigatory stop was based upon reasonable grounds, and the trial court was correct in overruling the motion to suppress. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

Having determined that there was probable cause for the investigatory stop, we must now consider whether there was probable cause for the subsequent arrest and search. It is clear that, once the get away car had been stopped, additional evidence was found to create probable cause. Officer Lowhorne testified that the black male driving the car was asked to step out and, during a pat-down, was found with a large amount of change on his person. Also, Lowhorne saw a black and white portable TV in the car which matched the description of the one taken in the robbery.

Officer Della-Calce testified that when he arrived he saw the appellant trying to stuff something in the seat behind him. After the appellant was ordered from the car, the officer found a butcher knife similar to the one used in the robbery. The appellant then asked Lowhorne to hand him his coat, whose appearance coincided with the victim’s description of the robber’s coat. Prior to handing the coat to appellant, Lowhorne searched the pockets and found a large roll of money. Under these circumstances, there was probable cause for the arrest and the subsequent search. The contemporaneous search which resulted in the seizure of the knife, mask, jacket, and T.V. was constitutionally permissible. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Chime1 v. California, 395 U.S. 752, 89 S.Ct. 2034, 20 L.Ed.2d 685. See also South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000.

II

■ Appellant complains that the trial court committed reversible error when it admitted into evidence appellant’s statement alleged to have been made before he had been given his Miranda rights. The statement from the record reads:

“Q. Did you ask Michael Thatch any questions?
“A. No, sir, I did not.
“Q. Did he say something to you from the patrol car?
“A. Yes, sir. He asked—
“MR. McDANIEL: I object, Judge; anything he said.
“THE COURT: Overruled.
.“Q. What did he say or what did he ask you?
“A. He asked me if I would hand him a brown coat that was in the car. And I asked him where the coat was, he said it was in the back seat.”

Also in the record we find the following:

“Q. Steve, did you or any other officer, Della-Calce, any officer in your presence advise the Defendant, Michael Thatch, of his Constitutional Rights?
“A. Yes, sir. Officer Della-Calce advised him of his rights in my presence.
“Q. Do you recall Officer Della-Calce asking him whether or not he understood those rights?
“A. Yes, sir.
“Q. Do you recall the Defendant’s response?
“A. No, sir, I do not recall his response.
“Q. Okay, now, was this before or after he said anything to you?
“A. This was directly after Officer Della-Calce frisked the subject in front of the vehicle.
“Q. That’s when he advised him of his rights?
“A. Yes, sir.
“Q. That was before the Defendant said anything to you?
“A. Yes, sir. At that time I had not said one word to the Defendant other than asking him to get out of the car.
“Q. Now, if you will, tell us what, if anything, he said to you about the jacket?”

Our examination of the transcript reveals that the statement made by the appellant about his coat was voluntary. No threats, force or intimidation were used to get the appellant to ask for his coat or to tell the officer it was on the back seat. In our judgment, the statement was voluntary and was properly admitted even though it was not a part of the res gestae.

III

It is insisted that the trial court committed reversible error when it limited the cross-examination of the victim-witness.

The instance complained of, in pertinent part, appears as follows:

From the record:

“Q. Well, Mr Áqwunobi, you told Officer Kramer and Officer Mullins, because they wrote it in their reports, that this smaller individual who you have identified as Michael Thatch, you told them that he was, ‘heading for the car when you first got a look at them.’ Now, do you want to back off of that any or is that your testimony here today?
“MR. MORGAN: I object; that’s not what he testified to and he has answered that question about three times already.
“THE COURT: Well, I think the Jury heard his testimony and understood what he said about where he was going.”

The control or the limiting of cross-examination is a matter addressed to the sound discretion of the trial court. Atwell v. State, Ala.Cr.App., 354 So.2d 30. Although the right to a thorough and sifting cross-examination is fundamental, it does not entitle a party to repeat questions that have already been fully answered. Proctor v. State, Ala.Cr.App., 331 So.2d 828.

In the present case, the record indicates that the matter complained of had been pursued on cross-examination by the defense attorney before the cited instance occurred. Therefore, the trial court did not abuse its discretion by limiting the repetitious examination.

IV

Appellant maintains that the State failed to prove a prima facie case of robbery in the first degree.

Robbery in the first degree is defined in § 13A-8-41, Code of Alabama 1975, as follows:

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or “(2) Causes serious physical injury to another.
“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.
“(c) Robbery in the first degree is a Class A felony.”
Section 13A-8-43, reads as follows:
“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance, or “(2) Threatens the imminent use of force against the person of the owner of any person present with intent to compel acquiescence to the taking of or escaping with the property.”

The evidence presented by the State was sufficient to support the verdict. The victim positively identified appellant as one of the two black men who, using a butcher knife, robbed him of a sum of money and a television set by force. At trial, the victim identified not only the television set that was taken but also the jacket worn by appellant and the red ski mask worn by his companion during the robbery.

The two police officers identified appellant as the passenger in the car; they also identified the television set, butcher knife, and brown coat, as well as large amounts of change and bills, as the contents of the vehicle. Further, the officers testified that they stopped the vehicle occupied by appellant and his companion only minutes after the robbery in the vicinity of the crime scene.

Moreover, the jury was justified in finding that appellant was involved in the robbery and shared in its fruits. Rayford v. State, 53 Ala.App. 86, 297 So.2d 409; Raybon v. State, 55 Ala.App. 143, 313 So.2d 570; McCovery v. State, Ala.Cr.App., 365 So.2d 358.

Under the foregoing facts, we are of the opinion that, the State presented a prima facie case of robbery in the first degree and the question of appellant’s guilt was properly submitted to the jury.

V

Finally, appellant insists that the Alabama Habitual Felony Offender Act is unconstitutional and that his prior convictions, which were invoked to enhance punishment under that Act, were not properly proved at the sentencing hearing. This court, in Watson v. State, Ala.Cr.App., 392 So.2d 1274 (1980), determined that Alabama’s Habitual Felony Offender Act, § 13A-5-9, Code of Alabama 1975, is constitutional.

In Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874, this court stated that the proper method for proving a prior conviction is by introducing a certified copy of the minute entry. That entry must affirmatively show that defendant was represented by counsel at the time of the prior conviction. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.

In the present case, the record shows that the jury returned a verdict on May 22,1980. On May 29, 1980, the court ordered that appellant be notified of his prior convictions upon which the State intended to rely at the sentencing hearing.

At the sentencing hearing on June 12, 1980, evidence was presented through certified copies of the judgment entries showing not only that appellant had three prior felony convictions, but also that appellant, at the time of each conviction, was represented by counsel. In addition to this evidence, the State presented the testimony of William R. Robinson, an employee of the State Board of Pardons and Paroles, who testified that he had prepared a preliminary report for the Board which reflected appellant’s prior offenses. Appellant admitted that he was the same Michael Thatch or Willie Davis who committed the felonies shown on the certified copies of the judgment entries submitted by the State. He also admitted that he was the same Michael Thatch or Willie Davis who was convicted of robbery in the case under consideration.

Under these facts we find that the prior convictions were properly proved. No conflict with Burgett v. Texas, supra, is shown.

We have examined the record and find no error prejudicial to the appellant; therefore, the judgment of conviction by the Madison Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Michael L. THATCH, Alias. (Re: Michael L. Thatch, Alias v. State of Alabama).
    80-352.
    Supreme Court of Alabama.
    April 24, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    O. J. BROWNING v. STATE.
    8 Div. 402.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    Grady Larry Morgan, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Robbery; 45 years.

This is an appeal by an indigent from a conviction for robbery that resulted from his plea of guilty to the charge.

The record contains “Court Exhibit ‘A’ ” which is a form (Ireland) that outlines the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. The form was signed by appellant and his attorney and indicated that the matters contained in the form had been read by appellant, or had been read to him. Further, it indicated that he understood those matters, that he was not induced to plead guilty, that he was in fact guilty as charged.

The record shows a “canvassing” of those rights the appellant would be relinquishing by his guilty plea. See Boykin v. Alabama, supra. Also, there is a judgment entry indicating compliance with Boykin v. Alabama.

I

The appellant complains that his guilty plea was neither voluntary nor intelligently and knowingly made. It is argued that the appellant was not adequately informed of the possible maximum punishment that he could receive. Further, he contends that he did not understand the “criminal system” and was confused as to his guilt.

From the record:

“THE COURT: To the offense of robbery as set forth in the indictment, how do you plead?
“MR. BROWNING: I plead guilty, sir.
“THE COURT: Why do you say you are guilty?
“MR. BROWNING: Well, Your Honor, let me just be honest, I’m not guilty of the robbery, but I have these other cases against me, and it’s due' to the fact that my wife is the one that had me arrested for an offense that I’m not guilty of. I am guilty of the other.
“THE COURT: You are guilty of these other offenses but not this one?
“MR. BROWNING: Yes, sir.
“THE COURT: Well, I wouldn’t accept your plea, Mr. Browning, in a case that you are not guilty of, so we will do away with the robbery and let you enter pleas in the other cases if that’s what you are guilty of.
“MR. BROWNING: Well, sir, I have no other choice but to plead guilty.
“THE COURT: You can plead not guilty. You can’t stand there and tell me you are not guilty and ask me to accept a plea of guilty. If you didn’t commit the offense, I’m not going to do that.
“MR. BROWNING: Accept my plea of guilty.
“THE COURT: Not unless you are guilty.
“MR. BROWNING: I’m guilty.
“THE COURT: Well, which am I supposed to believe, that you are or that you are not, in the last 30 seconds I got two different answers to the same question?
“MR. BROWNING: I am guilty.
“THE COURT: Of doing what?
“MR. BROWNING: Of robbery.
“THE COURT: What did you do?
“MR. BROWNING: Robbed a grocery store out on Triana Boulevard.
“THE COURT: How did you do that?
“MR. BROWNING: Just walked in and robbed it.
“THE COURT: Just walked in and robbed it?
“MR. BROWNING: Yes, sir.
“THE COURT: What was the name of the store?
“MR. BROWNING: The Town and Food.
“THE COURT: Did you know the people?
“MR. BROWNING: No, sir, I have done a lot of business there, I didn’t know them personally, but that’s where we do most of our business.
“THE COURT: And how did you disguise yourself, if you did?
“MR. BROWNING: With a pillowcase.
“THE COURT: And what did you use to put fear in the people that you were robbing?
“MR. BROWNING: I had a pellet gun.
“THE COURT: A pellet gun?
“MR. BROWNING: Yes, sir.
“THE COURT: And was it a man or woman?
“MR. BROWNING: It was two women in there, sir.
“THE COURT: Two women?
“MR. BROWNING: Yes, sir.
“THE COURT: Do you know Sabrina Birchfield?
“MR. BROWNING: No sir, not by name, I know her if I see her.
“THE COURT: You know her if you see her? Did you rob her?
“MR. BROWNING: No, sir, I believe it was the other lady that I robbed.
“THE COURT: Mae Chenault?
“MR. BROWNING: Yes, sir, I believe that was the lady.
“THE COURT: Mr. Morgan, is that consistent with your understanding of the facts?
“MR. TIM MORGAN: Yes, Your Honor.
“MR. BROWNING: Sir, I’m just a little confused and scared to death, that’s the reason I don’t know how to answer some of these questions.”

Basically, when a defendant knowingly, voluntarily and understandingly enters a guilty plea after being informed of his rights, his conviction pursuant to the guilty plea is not improper. Twyman v. State, 53 Ala.App. 351, 300 So.2d 124. Also, a guilty plea that is voluntarily and understandingly made waives all non jurisdictional defects. Knowles v. State, 280 Ala. 406, 194 So.2d 562. See Askew v. State of Alabama, 5th Cir., 398 F.2d 825; U. S. v. McCoy, 477 F.2d 550.

The record in the present case shows that the appellant was fully informed of his rights as per Boykin v. Alabama, supra, through the “Court’s Exhibit A” (Ireland form) and the court’s questions. The record does indicate, however, that during his statements concerning the rights the appellant would forego, the trial judge failed to mention the maximum sentence in a conviction for robbery. Although this fact was not mentioned in the court’s statement to the appellant, it was made known to the appellant in “Court Exhibit A,” which he and his attorney signed. Not only did the appellant acknowledge, by his signature on the Ireland form, that he had read and understood “Court Exhibit A,” but, the record also indicates that, during the questioning by the trial judge, the appellant informed the court that he had read and understood the “Court’s Exhibit A.” The first paragraph of that exhibit showed, in large hand-written letters, the range of punishment for robbery. Starks v. State, 56 Ala.App. 552, 323 So.2d 735; White v. State, 54 Ala.App. 27, 304 So.2d 268.

It was also clear to the appellant that no recommendation regarding sentence would be made by the prosecutor and that the court would take into account his prior criminal convictions. The court informed the appellant that it would not only consider the sentences of other courts, but would also weigh prior sentences of that court.

After considering all the circumstances surrounding the appellant’s guilty plea, it is our judgment that the trial court was correct in determining that the plea was voluntarily, knowingly and intelligently made. As shown by the foregoing record, the appellant was no stranger to the criminal process, and his guilty plea was properly accepted.

Although no motion was made to withdraw the plea and it is our judgment that the trial court did not improperly conduct these proceedings, we believe that, once the appellant displayed some reluctance in admitting his guilt, the best procedure would have been for the trial court to have refused to take his plea at that time.

II

The appellant asserts that the failure to afford him a preliminary hearing prevented him from being adequately informed of the charges against him and this rendered his plea of guilty involuntary.

It is well settled that a plea voluntarily and understandingly made, which is conclusive as to the accused’s guilt, waives all nonjurisdictional defects of prior proceedings against him. See Knowles v. State, supra.

We have determined that appellant’s guilty plea was voluntarily and understandingly made. Therefore, it is our judgment that appellant has waived the right to assert that the denial of a preliminary hearing was a defect in the proceedings against him.

The judgment of conviction by the Madison Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte O. J. BROWNING. (Re: O. J. Browning v. State of Alabama).
    80-406.
    Supreme Court of Alabama.
    May 1, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: TYSON, Judge.

text:
    Jimmy Ray TRAVIS v. STATE.
    1 Div. 143.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    As Corrected on Denial of Rehearing Feb. 24, 1981.

      Richard L. Thiry, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Jimmy Ray Travis was indicted by the Mobile County grand jury for the first degree murder of Johnny Dean. Trial was had with the jury finding him guilty of first degree manslaughter. The jury set his sentences at ten years imprisonment. From that conviction he now appeals.

Mrs. Diane Condra testified that around 8:00 a. m. on June 18, 1979, she went to the victim’s home to visit her aunt. She stated that she was in the kitchen with her aunt and appellant’s stepdaughter when the appellant arrived. He entered the kitchen and told his stepdaughter to get in his car which she refused to do. Mrs. Condra stated that the appellant grabbed his stepdaughter and led her to the car which she voluntarily entered. She testified that she tried to talk to the appellant who replied that she should keep her mouth shut and stay out of his family business. As the appellant was preparing to back down the victim’s driveway. Mrs. Condra stated that her aunt called for the victim who had been in his garden working and was unaware of the incident at the house. She stated that she could not initially see the victim from where she was standing which was outside the house and near the back door. Mrs. Condra testified that the appellant, who was backing down the driveway at a high rate of speed, hit the victim, who was running toward the driveway, near the intersection of his driveway and the driveway of a small house owned by the victim which was located some distance in front of the victim’s house and closer to the road. Mrs. Condra testified that the front end of the appellant’s car turned to hit the victim with it carrying him to the road. Mrs. Condra looked to the garden where her child had been with the victim and after returning her attention to the victim, saw him in the road near his driveway entrance and a drainage ditch running parallel to the road waving his arms at the appellant, who, by this time, had backed into the road. She testified that the appellant’s car swerved into the victim striking him a second time. Mrs. Condra left to call the police and upon returning saw the victim lying in the drainage ditch near his driveway entrance with the appellant and another man attempting to revive him. Mrs. Condra testified that she failed to tell the police about the first impact as she had her child on her mind and merely forgot. She stated that she did not know how far the appellant backed up the road and did not see the victim throw anything at the appellant or his car. Mrs. Condra testified that while she was viewing the body she asked the appellant “was it worth it” to which he told her to keep her mouth shut. Several photographs of the scene were identified by Mrs. Condra and properly admitted into evidence.

On cross-examination, Mrs. Condra testified that from where she was standing, she could see the driveway entrance, road, and the location of the victim relative to such. She stated that once the appellant’s car backed into the road she lost sight of it until it returned to the area of the driveway entrance. Mrs. Condra testified that the victim, when hit the second time was standing somewhere between the middle of the road and the drainage ditch. Mrs. Con-dra first saw the victim as he ran from his garden to the driveway; a path which carried him in front of the small house. She stated that at or near the point that the driveway to the small house adjoined the driveway of the victim’s residence, the appellant’s car turned or swerved.

On redirect examination, Mrs. Condra pointed out that her vantage point was higher in elevation than the road and therefore could tell the position of someone standing in the road.

Mrs. Jeanette Lane testified that she is the stepdaughter of the appellant as well as the grandniece and niece of Mrs. Frances Dean and Mrs. Diane Condra, respectively. Mrs. Lane was not married at the time of the instant incident. She testified that around 7:30 a. m. on June 18, 1979, she had gone to her grandaunt’s due to domestic problems at home. She stated that around 8:30 or 9:00 a. m. the appellant came to the victim’s house to carry her home. Mrs. Lane testified that the appellant was “mad”, “angry”, and “upset”, and when leaving the victim’s house backed down the driveway at a high rate of speed. Mrs. Lane first saw the victim walking across the driveway running toward the road with something resembling a rock in his hand. Mrs. Lane testified that the appellant did not hit the victim in the driveway as testified to by Mrs. Condra but rather proceeded out to the road. She stated the appellant’s car momentarily stopped then sped forward in the direction of the victim. She stated that the car was in the middle of the road. Mrs. Lane testified that the car was swerving and the tires were spinning as it moved forward. She stated the victim had his arm cocked as if to throw something and, apparently, in response to such, the appellant covered his face with his arm. Mrs. Lane did not see the impact as she had closed her eyes and turned her head although she heard a “little bump.” She stated that she told the appellant he had hit the victim and he immediately stopped the car. Both of them got out of the car and went to help the victim. Mrs. Lane testified that the appellant did not swerve or turn the car toward the victim although in her statement taken at the scene shortly after the incident she made statements to the contrary but explained that at that time she was mad and upset at the appellant. She testified that she could clearly see the victim once the car was in the road.

On cross-examination, Mrs. Lane stated that she turned her head or closed her eyes prior to the impact because she knew something was going to happen.

Mr. Thomas Long testified that on June 18, 1979, he was a neighbor of the victim’s. On that day, he was in his yard and saw the appellant’s car back down the road, heard it shift gears, and saw it proceed forward at a high rate of speed. Mr. Long stated that he heard a loud impact and afterwards got into his car and drove to the scene of the incident wherein he found the victim lying near a drainage ditch with the appellant beside him. He stated that the appellant’s car had stopped in the middle of the road. Mr. Long attempted to aid the victim. He stated that the appellant asked several times for help and stated many times that the victim would be all right.

Mrs. Ethel Davis testified that on June 18, 1979, she was the victim’s next door neighbor and was in her yard when she saw the appellant’s car back rapidly down the road, shift gears, and rapidly proceed forward. She stated that she heard a loud collision and walked to the road wherein she saw Mrs. Dean and Condra and the appellant. She did not see the victim or go to the scene of the incident. She testified that the incident occurred in Mobile County.

Mrs. Frances Dean testified to the June 18, 1979, family incident between her grandniece and the appellant. She stated that the appellant told his stepdaughter that he would “beat the hell out of her” if she did not go with him. Mrs. Dean stated that she called for her husband out of fear of what might happen to her grandniece. Mrs. Dean testified to the two impacts suffered by her husband as previously testified to by Mrs. Condra.

On cross-examination, Mrs. Dean testified that her husband had no idea of what had occurred at their home prior to her calling him. She stated that from her position outside the house she could see her husband in the garden. She stated that he did not run but walked fast toward the driveway. She stated that when her husband was initially hit, the appellant’s car’s front end turned toward him. Mrs. Dean testified that after the initial impact she moved closer to the road and at the time of the second impact was near the point of initial impact. She stated that she could see the appellant’s car during the entire incident although a cluster of trees and underbrush were near the side of the road wherein the appellant had backed his car. She testified that the trees were not so dense that she could not see through them. Mrs. Dean testified that her husband did not throw anything at the appellant’s car and, when he was hit the second time, had his hands raised attempting to stop the appellant.

Mobile Sheriff’s Department Detective Willie Estes testified that around 10:30 a. m. on June 18,1979, he arrived on the scene of the instant incident to conduct the investigation. He stated that when he arrived both the victim and the appellants’ car had been moved. He identified several photographs of the appellants’ car which were properly admitted into evidence.

Detective Estes testified that after giving the appellant his Miranda rights he took a statement from him which was tape recorded. He produced a transcript of the statement and, using such to refresh his recollection, testified to the contents of the appellant’s statement. Detective Estes stated that the appellant was not threatened or coerced into making a statement and no promise was made in exchange for such. He stated that the appellant was not drunk and understood his questions.

Detective Estes testified that the appellant told him about the events concerning his stepdaughter and himself at the victim’s house. The appellant stated that he saw the victim in the road before he hit him and swerved in an attempt to miss him, but did not know that he had struck him. He stated that the victim was attempting to throw something at his car and when his stepdaughter told him that he had struck the victim, he stopped his car, got out, and went to him.

Detective Estes testified that dents on the right front portion of the appellant’s car in the area of the right headlight were made by its impact with the victim. He stated that there was no damage to the left side of the car and no evidence that the victim had been thrown upon the hood of the car. He opined that the first collision between the victim and the appellant’s car as testified to by Mrs. Condra and Dean did not occur. He stated that they did not tell him of such when he took their statements and first heard of such at the appellant’s preliminary hearing.

Mobile Sheriff’s Department Deputy William Wade testified that he assisted in the investigation of the instant incident stating that he took several photographs of the scene. Of those photographs, several were of the right front fender area of the appellant’s car. The photographs revealed blue fiber attached to the damaged area.

Dr. Leroy Riddick, a forensic pathologist, testified to the results of the autopsy performed by him on the victim. He stated the cause of death to be from multiple blunt injuries. The injuries suffered by the victim included a broken spine and right leg, several broken ribs, several deep lacerations, a lacerated liver and dislodged bladder, considerable hemorrhaging, and a severed aorta. After illustrating the requisite knowledge to form such, Dr. Riddick opined that the appellant’s vehicle was travelling at the time of impact, at least twenty-five miles per hour.

Dr. Riddick’s testimony concluded the presentation of the State’s case. The appellant moved to exclude the State’s evidence on the ground of failure to prove a prima facie case. The trial court denied the appellant’s motion.

The appellant testified on his own behalf and recounted the events leading up to the fatal incident. He stated that in the past he had had “no trouble” with the victim. He stated that after his stepdaughter and he had gotten into his car, he saw the victim coming from his garden toward the driveway. He stated that the victim’s route took him behind rather than in front of the small house. He testified that he was rapidly backing down the driveway but did not hit the victim in the driveway as previously testified to by Mrs. Condra and Dean. The appellant testified that the victim was throwing rocks or sticks at him and that he was leaving because he did not want any trouble. The appellant stated that he backed up the road approximately one-half of the distance from the victim’s driveway entrance and the nearest intersection. He stated that the victim was within his view during this time but lost sight of him when he changed gears and began to drive forward toward the driveway entrance. The appellant testified that he “showered down on the gas” and before realizing it, the victim had run into the road attempting to throw something at him. The appellant thought the victim had hit his car with the thrown object and did not know that he had hit him until his stepdaughter told him. The appellant confirmed the accuracy of the contents of his statement given on the day in question as testified to by Detective Estes. The appellant testified that the only time he had been arrested was approximately nine years ago in Arkansas for attempted robbery which he characterized as college “hell raising.”

On cross-examination, the appellant stated that he was more upset than mad at the incident with his stepdaughter. He testified that the victim was mad and chasing him down the driveway. The appellant testified that he never lost sight of the victim as he backed down the driveway and into the road and swerved his car to the left to miss hitting him, although he stated that he did not know that he had struck him. The appellant testified that as the victim drew his arm to throw the unidentified object, he threw his arm in front of his face. He stated that he did not know if his car was “fishtailing.” The appellant, over objection, admitted being arrested twice for driving without a license, the latter arrest occurring approximately one month prior to the instant incident. He stated that at the time of impact he was traveling approximately thirty-five miles per hour.

The appellant called two character witnesses who testified to his good reputation in the community. On cross-examination, both witnesses, over objection, stated that they had not heard of the appellant being arrested for attempted robbery or driving without a license. One witness stated that before such would affect his opinion of the appellant, he would have to know the entire circumstances, while the other testified that such would not affect her opinion of the appellant or her testimony.

I

Appellant contends that the trial court erred in allowing the State to elicit testimony from him concerning two prior “arrests” for driving without a license. Appellant brought out on direct examination that he had been arrested for an attempted robbery in Arkansas approximately nine years ago. We now quote the appellant’s cross-examination:

“Q As a matter of fact, Mr. Travis, you testified on direct examination that you only had one arrest in your life; right? Isn’t that what you testified; yes or no.
A Major, yes, sir.
Q Yes, sir. And as a matter of fact, on the month before this happened you were arrested for no driver’s license and improper . . .
MR. STEPHENS: Objection . . .
Q ... lights. Correct?
MR. STEPHENS: . . . irrelevant, immaterial . ..
A No, sir, I was not.
MR. STEPHENS: Just a second. It’s irrelevant and immaterial to this case.
THE COURT: I think it was brought out on direct. Overruled.
Q And you were not arrested for no driver’s license?
A Not to my knowledge, sir. I was not put behind bars for ...
Q I’m not talking about putting behind bars. Were you ticketed for no driver’s license, arrested?
A Ticketed, yes, sir.
Q And told to come to court?
A No, sir, I never did go to court for no ticket.
Q Never did, did you?
A No, sir.
MR. STEPHENS: Judge, now again we’re going to object. He’s asked him the question was he arrested and he stated he was ticketed and did not go to court. That’s not an arrest. And we move to exclude.
THE COURT: Denied.
Q As a matter of fact, you were arrested twice for no driver’s license; correct?
A Yes, sir.
Q And the last time was the month before this accident happened; correct?
A Yes, sir.” (R. p. 148-149)

Initially we note that several of the above quoted questions were answered by the appellant in the negative. Furthermore, the only objections made by his counsel during the State’s inquiry were general in nature and directed to two questions to which the appellant answered with a negative reply.

A negative response to a question either by a witness or the accused causes the accused no injury. Yates v. State, Ala.Cr.App., 390 So.2d 32 (1980); and cases cited therein; 7 Alabama Digest Criminal Law 1170V2(2).

No objection was made to the questions affirmatively answered by the appellant. Review on appeal is limited to matters on which rulings are invoked in the trial court. Gunn v. State, Ala.Cr.App., 387 So.2d 280, cert. denied, Ala., 387 So.2d 283 (1980); 6B Alabama Digest Criminal Law 1045. Objections to evidence cannot be raised for the first time on appeal. Gunn,, supra; Williams v. State, Ala.Cr.App., 377 So.2d 634, cert. denied, Ala., 377 So.2d 639 (1979); 6B Alabama Digest Criminal Law 1036.1(1). A timely, specific objection is usually required to preserve an issue on appeal. Starley v. City of Birmingham, 377 So.2d 1131, cert. denied, Ala., 377 So.2d 1134 (1979); Gould v. City of Birmingham, Ala.Cr.App., 375 So.2d 1296 (1979); and cases cited therein; 6B Alabama Digest Criminal Law 1043(2).

However, by initially injecting the subject of prior arrests into the trial during his direct examination, the appellant opened the subject for further inquiry by the State. Baker v. State, Ala.Cr.App., 344 So.2d 547 (1977); Davis v. State, Ala.Cr.App., 331 So.2d 807 (1976); McClendon v. State, 54 Ala.App. 327, 307 So.2d 723 (1975); Vincent v. State, 231 Ala. 657, 165 So. 844 (1936).

In Sly v. State, Ala.Cr.App., 387 So.2d 913, cert. denied, Ala., 387 So.2d 917 (1980), which involved the defendant’s willful refusal to comply with a lawful order of a State trooper, we held that the stopping of a motorist by a police officer for a traffic offense did not constitute an arrest. Consequently, the characterization of the appellant’s prior traffic violations as “arrests” was improper.

Thus, error would have been shown had the appellant not answered several of the questions in the negative and timely objected to those which he had affirmatively answered. As a result, nothing now is presented for our review.

Furthermore, no application of ARAP 45 can be made as no error was preserved. ARAP 45; Stonoker v. State, Ala.Cr.App., 380 So.2d 342 (1979); Lowery v. State, 33 Ala.App. 446, 35 So.2d 360, cert. denied, 250 Ala. 627, 35 So.2d 362 (1948); Dodd v. State, 26 Ala.App. 367, 160 So. 267 (1935).

II

Appellant asserts that the trial court improperly allowed the State to cross examine his character witnesses concerning his prior arrests. The State’s questions were predicated upon whether the witnesses “had heard” of such. The witnesses answered the questions in the negative.

The State may properly test an accused’s character witness’ knowledge of the good general reputation of the accused by asking whether the witness has heard of reports, rumors, or statements derogatory to the accused. Such is admissible as bearing on the credibility of the character witness and not as substantive evidence of the character of the accused. Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Crowe v. State, Ala.Cr.App., 333 So.2d 902, cert. denied, Ala., 333 So.2d 906 (1976); Houston v. State, 50 Ala.App. 536, 280 So.2d 797, cert. denied, 291 Ala. 784, 280 So.2d 801 (1973); and cases cited therein; 19A Alabama Digest Witnesses 274(2).

In any event, no prejudicial error occurred as the witnesses answered the questions in the negative. Baldwin, supra; Aaron, supra.

III

Appellant challenges the sufficiency of the State’s evidence through his motions to exclude and for a new trial. The evidence, although at times conflicting, fully supports the verdict reached by the jury. Consequently, the trial court properly overruled the appellant’s motion to exclude the State’s evidence for failure to prove a pri-ma facie case and his motion for new trial on this ground. Briggs v. State, Ala.Cr.App., 375 So.2d 530 (1979); § 13-1-90 Code of Ala. (1975).

IV

Appellant contends that the trial court erred in failing to expressly instruct the jury that it was to determine his punishment if they found him guilty. We note that the appellant took no exception to the trial court’s oral charge and submitted no written requested charges on the matter, but rather announced that he was satisfied with such.

In order to preserve error on appeal for the trial court’s refusal or omission to charge on a particular subj’ect applicable under the evidence, the appellant must submit a written requested charge. To preserve error either in the matter of what the trial court says or does not say, the appellant must make an exception thereto, prior to the time the jury retires to deliberate. Yates v. State, Ala.Cr.App., 390 So.2d 32 (1980); Burton v. State, Ala.Cr.App., 380 So.2d 361 (1980); and cases cited therein.

Having failed to except to the trial court’s oral charge, nothing is presented for our review.

Nevertheless, after a close reading of the trial court’s oral charge, we are fully confident that the jury was aware of its function and duty to impose punishment upon the appellant if it found the evidence sufficient under the law to convict him. Furthermore, the jury requested the trial court to repeat its instructions defining the various offenses under which the appellant could be convicted without requesting any explanation as to who was to impose punishment upon him if a guilty verdict was reached. It would appear that had any doubts concerning such arisen, the jury would have voiced such at this time. Having not done so lends credence to the assumption that it fully understood its duty.

V

Appellant contends that the trial court erred in failing to allow him a reasonable opportunity to request it to poll the jury.

The record reflects that upon returning to the court room with its verdict, the trial court asked the foreman of the jury whether its verdict was unanimous to which he affirmatively replied.

In addition, after the jury’s verdict was read, the trial court, during the allocution and prior to pronouncing sentence, inquired if the appellant had anything to say, to which he replied that he was innocent. After pronouncement of the sentence, appellant’s attorney gave oral notice of appeal and requested an appeal bond be set.

It is the duty of either party, the appellant or State, to request the trial court to poll the jury prior to their discharge. Otherwise, the right is waived. Brown v. State, 63 Ala. 97 (1879); Boyd v. State, Ala.Cr.App., 350 So.2d 757 (1977); Clements v. State, 52 Ala.App. 294, 291 So.2d 748 (1973).

The record indicates that rather than request the jury be polled or object to the denial of an opportunity to do such, appellant’s counsel gave oral notice of appeal. Had the appellant’s statutory right to request the jury be polled been so flagrantly violated, the record would have reflected an immediate response by his counsel. The record does not support the appellant’s contention as argued in his brief. In order to agree with such would require much speculation and conjecture on our part. The record is clear that the appellant did not request the jury be polled and is far too unclear to support appellant’s assertions. Consequently, we find no error in the trial court’s actions.

VI

The appellant contends that the trial court erred in not allowing him the opportunity at hearing on his motion for a new trial to question the jurors concerning their understanding and/or misunderstanding as to whose duty it was to sentence him, and cites this court to Hewitt v. State, Ala.Cr.App., 389 So.2d 157 (1980).

The appellant had affidavits from “several jurors” apparently supporting his position, but they were not offered into evidence.

The trial court ruled that while the-jurors had been subpoenaed and were present, to allow them to testify would be tantamount to an impeachment of the jury’s verdict. The trial court allowed the appellant to make an “offer of proof” wherein he stated that “the jurors were confused” as to who was to impose punishment upon him and thought their verdict was merely a recommendation to the trial court. Furthermore, he stated that the jurors would have testified that had they known that they were sentencing him, the would not have returned the verdict which included a sentence of ten years, and the trial court’s oral charge concerning sentencing and punishment was confusing and misleading.

This important issue is fully discussed, contrary to the appellant’s position, in Atwell v. State, Ala.Cr.App., 354 So.2d 30, 37, 38 (1977), cert. denied, Ala., 354 So.2d 39 (1978):

“After a case has been submitted to the jury, their deliberations in the jury room are not subject to review. Gamble, McElroy’s Alabama Evidence, 3rd Ed., § 94.06, p. 207. Public policy forbids that a juror disclose deliberations in the jury room and demands that they be kept secret. Taylor v. State, 18 Ala.App. 466, 93 So. 78 (1922); Harris v. State, 241 Ala. 240, 2 So.2d 431 (1941). Permitting such impeachment would open the door for tampering with the jury after the return of their verdict. Hawkins v. United States, 244 F.2d 854, 856 (4th Cir.1957).
“Consequently a jury’s verdict is not subject to impeachment by the testimony of jurors as to matters which transpired during the deliberations. Fox v. State, 49 Ala.App. 204, 269 So.2d 917 (1972). A juror may not, either in impeachment or in support of his verdict, testify as to his mental operation in reaching the verdict.
“ ‘But in order to sustain a verdict of the jury, for the affidavits of the jurors to be admissible they must be with respect to facts and occurrences open to the observation of other jurors so that they may be subject to contradiction, for the rule does not permit evidence by the jurors’ of their own mental operations by disclosing the grounds of, or the reasons for, their verdict, the discussions which took place in the jury room, or the motives or influences which affected their deliberations and decisions, by denying that they were affected by matters which might, if their effect was prejudicial to the moving party, furnish grounds for a new trial, or by asserting that they disregarded improper instructions by the court or incompetent material evidence which was before them and was not seasonably withdrawn or excluded.’ Birmingham Electric Co. v. Yoast, 256 Ala. 673, 678, 57 So.2d 103, 107 (1951).”

See also, Weekley v. Horn, 263 Ala. 364, 82 So.2d 341 (1955); Hall v. State, Ala.Cr.App., 348 So.2d 870, cert. denied, Ala., 348 So.2d 875 (1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 745, 54 L.Ed.2d 768 (1978); 6B Alabama Digest Criminal Law 957(1).

The Hewitt case, supra, is not analogous to the instant situation. In Hewitt, the jury during the course of their deliberations asked the trial judge, in open court, who fixed the punishment. After the trial judge had instructed them, the jury, in open court set forth its sentence on a verdict form and handed it to the trial judge. The potential evil addressed by this court in Hewitt did not pertain to the jury’s misunderstanding of their duty to sentence the defendant, but rather the irregular procedure in which such was recorded and received.

Appellant’s insistence of error concerns the trial court’s refusal, on his motion for a new trial, to allow him to examine the jury regarding its understanding as to the proper party who would set his sentence in this case.

Nothing in the record before this court suggests any irregularity in the imposition of the appellant’s sentence or the jury’s understanding as to its duty to impose it.

Appellant argues that by allowing him to examine the jury, he would have been offering testimony in support of its verdict, while at the same time, insisting that such would have revealed the jury’s misunderstanding of its duty to impose the sentence in this cause.

Thus, the appellant, under the guise of offering testimony supportive of the jury’s verdict, was in effect attempting to impeach it. This situation is covered by the authorities cited.

VII

Appellant asserts that the trial court erroneously refused to give twenty three of his thirty nine written requested charges. After a careful review of those charges refused, we find no error of the trial court as the charges were either covered by the trial court’s oral charge or appellant’s given requested charges, confusing, misleading or erroneous statements of law. Section 12-16-13, Code of Alabama, 1975.

We have carefully re-examined the record and find same to be free of error. The judgment of affirmance entered on January 20, 1981 remains in full force and effect.

OPINION CORRECTED: APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Jimmy Ray TRAVIS. (Re: Jimmy Ray Travis v. State of Alabama).
    80-384.
    Supreme Court of Alabama.
    April 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Michael Anthony GAGE v. STATE.
    1 Div. 161.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied Feb. 24, 1981.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal in an extradition case.

A hearing was conducted by the trial court on appellant’s petition for writ of habeas corpus directed to the Sheriff of Mobile County, Alabama. According to the undisputed evidence at said hearing, law enforcement authorities of Mobile County, Alabama, had arrested petitioner-appellant on two rendition warrants issued by the governor of Alabama. One was issued on January 3, 1980, in response to a requisition from the governor of Texas; the other on January 15, 1980, in response to a requisition from the governor of Colorado. The Texas requisition was based upon the alleged conviction of appellant of the possession of a controlled substance and the violation of the terms of his probation; the Colorado requisition was based on the alleged theft of an automobile.

The rendition warrants, the requisitions and the supporting documents were introduced in evidence. Petitioner’s counsel challenged the legal sufficiency of each requisition and corresponding rendition warrant. The testimony of two witnesses was introduced by petitioner in support of his contention as to the charge of the State of Colorado, which appears to have raised some doubt in the mind of the trial judge as to the extraditionability of petitioner in the Colorado proceeding. The trial court reached a conclusion in favor of the validity of the extradition proceeding of Texas and therefore denied the petition for habeas corpus. In doing so, it stated:

“Relative to the issue of the Governor’s warrant of the State of Alabama on the request of the Governor of the State of Colorado, that appears to be moot at this time. They can file that in the State of Texas.”

There is no issue between the parties on appeal as to the Colorado extradition proceeding.

The only issue expressly presented by appellant is stated in appellant’s brief as follows:

“The demand for extradition is defective due to the absence of an information supported by affidavit to the facts.”

Appellant does not contend that there was no affidavit but emphasizes the words “affidavit to the facts” in arguing that the affidavit given by the district attorney in Texas of the district in which petitioner had been convicted and placed on probation for the possession of a controlled substance was not sufficient. The affidavit states in the conclusion thereof:

“In my opinion, the facts stated in the State’s motion to Set Aside Conditional Discharge Order for First Offense are true.”

It should be noted, however, that the “APPLICATION FOR REQUISITION” which is verified by the said affidavit of the district attorney also states:

“I, Edward J. Walsh, District Attorney, in and for Williamson County, Texas, do hereby make application for the requisition and return to this State of Mike Gage who has been found guilty in the 26th Judicial District Court of Williamson County, Texas, of the crime of Possession of a Controlled Substance but who has, since his having been found guilty and released on probation as more fully appears in a Conditional Discharge Order For First Offense, failed to abide by the terms of his probation as more fully appears from the Motion to Set Aside Conditional Discharge Order For First Offense, and before an arrest could be made upon process issued, and with a view of avoiding same, fled from the justice of this State and has taken refuge and is now to be found in the County of Mobile, State of Alabama.”

Although an affidavit based on the affiant’s information and belief as distinguished from what he personally knows. would not ordinarily meet the requirements of an affidavit sufficient to justify the issuance of a requisition or a rendition warrant for an alleged fugitive- who has allegedly committed a crime in the state from which he is a fugitive, the nature of the crime charged in the instant case is such that knowledge of another’s guilt or probable cause for believing him guilty would ‘ hardly come to any one person firsthand as an eyewitness to the commission of the crime. The supporting papers that were introduced in evidence and formed some of the basis for the affidavit show as a matter of record that on January 5,1978, appellant, appearing in person and by his attorney, pleaded guilty to the charge of possession of a controlled substance, that he was found guilty by the District Court of Williamson County, Texas, 26th Judicial District, that at his request he was granted a “conditional discharge,” that further proceedings in the case were “deferred and the defendant placed on probation” for a period of two (2) years, and that among the terms of probation were the following:

“4. Report to the Probation Officer on the second Thursday of each month.
“8. Remain within Williamson County, Texas, unless permitted to depart by the Court or the Probation Officer.
“10. Pay his fine, if one be assessed, and the costs of Court, in one sum or several sums, and make restitution or reparation in any sum the Court shall determine, to-wit: $50.00 — Court costs (to be paid to the District Clerk of Williamson County, Texas, within ten days.)”

The transcript in the instant case shows also that in the “State’s Motion to Set Aside Conditional Discharge Order for First Offense” filed in the District Court of Williamson County, Texas, in August 1979, it is stated that defendant had violated the conditions of his probation in failing to report as directed for the months of August, September, November and December, 1978, and for the months of January, February, March, April, May and June, 1979, and that on September 10, 1979, a warrant had been issued by the district clerk of said court for an instanter arrest of the defendant-appellant.

Appellant seems to concede that the proceeding instituted by an assistant district attorney and verified by the appropriate district attorney in Texas is the equivalent of an information. The district attorney should be the most knowledgeable official in his district as to persons who have been convicted in the particular district court, the facts and circumstances as to the convictions, whether their sentences have been suspended and, if so, whether their probation is still subject to revocation. Whether his knowledge on the subject was obtained by him firsthand, or from the court records, or from his assistants or from probation officers, his official statement as to whether a particular person had been convicted of a particular offense and placed on probation within two years prior to the statement and that he had grossly violated the terms of the probation for a majority of the preceding months during which he was under probation would be expected to be thoroughly reliable and trustworthy. When all of this is considered in connection with the undisputed fact that appellant was apprehended in another state to which he had no right to go under the terms of the probation without consent of the court or the probation officer, a reasonable conclusion follows that the affidavit made by the district attorney is sufficient. In the absence of any evidence or showing to the contrary, it is practically conclusive.

Although appellant does not raise the point, we note that the affidavit was sworn to before a notary public and not before a magistrate.

In prescribing the procedure for interstate extradition of alleged fugitives from justice, Congress has provided that it is to be commenced by “. . . a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime ...” 18 U.S.C. § 3182. Even so, the quoted provision of the cited federal law does not necessarily control, for the reason that the provision of the Constitution of the United States for interstate extradition (Art. IV § 2) is not for the benefit of fugitives but is for the benefit and protection of constituent states and territories of the United States, to enable them to obtain from an asylum state fugitives from the former who have fled therefrom by reason of prosecution for their unrequited crimes committed therein. Woods v. State, 264 Ala. 315, 319—322, 87 So.2d 633 (1956).

The governing statutory law of Alabama on the subject is not as exacting and definite as the quoted federal law. Code of Alabama 1975, § 15-9-31 provides:

“No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found, or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magis-. trate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime... . ”

Section 15-9-33 provides:

“A warrant of extradition must not be issued unless the documents presented by the executive authority making the demand show ... that he [the accused] is lawfully charged by indictment or by an information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of crime in that state and has escaped from confinement or broken his parole.”

“Assuming” that the mentioned proceedings filed by an assistant district attorney in Texas and verified by the appropriate district attorney “serves as an information,” as does appellant in his argument, it would seem that we can assume that he recognizes that, as held in Rayburn v. State, Ala.Cr.App., 366 So.2d 698, cert. denied, 366 So.2d-708 (1979), the law of the requisitioning state would be such that the “information procedure” thereof “includes all the safeguards which the affidavit requirements of ... 18 U.S.C. § 3182 were intended to provide and, consequently, that supporting affidavits were not required in the circumstances of the case.” See In re Moore, 2 Mass.App. 399, 313 N.E.2d 893 (1974), cited and quoted with approval in Rayburn v. State, supra, as to that part of the opinion that dealt with “two informations” in the extradition case there under review. We do not find it necessary to analyze the law of Texas as to its statutory “information procedure” to determine whether it must be based upon an affidavit, as we have already held herein that there was a supporting affidavit in the instant case.

Moreover, regardless of whether there was a conventional information, there was neither necessity nor reason for a supporting affidavit before a magistrate in the instant case, as there is in an extradition case in which there is neither an indictment nor an information but which is based upon a complainant’s affidavit that a crime has been committed. The reason is that before the application for the requisition in the latter type of case reaches the chief executive of the requisitioning state, it should go through a screening process via a magistrate, an official vested with authority to determine the existence vel non of sufficient facts to justify probable cause for believing that a crime has been committed, or stated otherwise whether he would be justified in his official capacity in issuing a warrant for the arrest of the accused. In Alabama, and generally we think, a magistrate does not have authority to issue a warrant for the arrest of a defendant for violating the terms of an order or judgment granting him probation and suspension of the sentence imposed upon him. In Alabama, that authority is in the court in which he was convicted and sentenced. Code of Alabama 1975, § 15-22-54(c). By (d) of said section, an arrest may be made without a warrant by a probation officer or other officer upon the request of the probation officer.

In the case now under consideration, it affirmatively appears without dispute that prior to the application to the chief executive of Texas for requisition of appellant, an order had been issued by the District Court of Williamson County, Texas, Twenty-sixth Judicial District “to take the body of” appellant and have him before that Court to answer the Motion of the State of Texas to Set Aside his Conditional Discharge; that appellant has been previously indicted, convicted and placed on probation, which by its terms forbade his entering Alabama without the consent of his probation officer and that his period of probation had not expired at the time he was found in Alabama. We find no reason for his not’ being delivered to the Texas authorities for return to Texas to answer the pending proceeding against him. It follows that the judgment of the trial court was correct and should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Ex parte Michael Anthony GAGE. (Re: Michael Anthony Gage v. State of Alabama).
    80-386.
    Supreme Court of Alabama.
    April 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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