text:
    Ex parte Fletcher ADAMSON. (Re RAY, PEOPLES AND WHITE, INC. v. Fletcher ADAMSON).
    Civ. 3053.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.

      No brief for appellant or appellee.
   WRIGHT, Presiding Judge.

This is a mandamus proceeding to change venue.

The plaintiff, Ray, Peoples and White, Inc., is engaged in the business of land surveying. Its business office is located in Talladega County, Alabama. The defendant Fletcher Adamson is a resident of Tallapoosa County, Alabama. He contracted with the plaintiff for a survey of some land which he owned in Tallapoosa County. Subsequent to the defendant’s request that the survey work be terminated, the plaintiff brought suit in the District Court for Talladega County for the work and labor already performed under the contract. The defendant moved to dismiss for improper venue. The motion was denied. After judgment in favor of the plaintiff, defendant appealed to the Talladega County Circuit Qourt, and raised the question of venue in the form of a motion to transfer. The motion was denied. The defendant petitions this court for a writ of mandamus directed to the Circuit Court of Talladega County, ordering it to transfer the case to the Circuit Court of Tallapoosa County. As denial of a motion for change of venue may not be reviewed by appeal, the issue is properly before us on the petition for a writ of mandamus. Davis v. Marshall, 404 So.2d 642 (Ala.1981).

The record reveals the following facts: The defendant went to the plaintiff’s business office in Talladega County to discuss retaining the plaintiff’s services in surveying land owned by the defendant in Talla-poosa County. Subsequently the defendant received a letter confirming the hourly rates which the plaintiff would charge for the survey. The defendant signed the letter in Tallapoosa County and mailed it back to the plaintiff. The agreement provided a charge of $42.50 per hour for field work and $25 per hour for office work. Mr. Moody Ray, a member of the plaintiff firm, testified concerning the amount of work done in furtherance of the agreement with the defendant. He stated that prior to sending out the first field party, he and his staff spent approximately three hours working in the office in Talladega County checking maps and photographs in preparation for the survey. Then the field crews were sent to Tallapoosa County to begin work on the property itself. Mr. Ray testified that for each full day the crew spent in the field, he spent approximately one and one-half hours in the office compiling the raw field data and feeding it into a computer to obtain the calculations needed for an accurate survey. The defendant requested that the work be stopped after approximately one and one-half weeks. Although the initial bill sent to the defendant was for fifty-one and one-half hours of field work, a subsequent bill introduced in the district court included a charge for five hours of office work.

All actions for work and labor may be brought in the county in which the work was done. Ex parte City of Huntsville Hospital Board, 366 So.2d 684 (Ala. 1978). Section 6-3-3, Code (1975) provides:

In all actions for work and labor done or breaches of contracts or covenants as to easements or rights-of-way, the action may be commenced in the county in which the work was done or in which the land is situated as to which the easement or right-of-way was granted.

Proper venue in an action for work and labor will therefore depend on a determination of where that work was done. The burden of proving improper venue is upon the party making such a claim. Medical Service Administration v. Dickerson, 362 So.2d 906 (Ala.1978).

In Ex parte H. L. Raburn & Company, 384 So.2d 1075 (Ala.1980) the Alabama Supreme Court held that an accounting firm’s suit for work and labor was properly commenced in a county where a substantial amount of the work was done. Clearly the court did not require that a majority of the work be performed in the county in which suit was brought, for in Raburn the evidence on this point was unclear. In the case before us, the evidence supports a finding that the work performed in the plaintiff’s office in Talladega County was essential to an accurate survey of the defendant’s property. A purely mathematical balancing of the number of hours spent working in each county would not reflect a true measure of the substantial nature or importance of the work performed in that county.

If a “substantial” amount of work was performed in both Talladega and Talla-poosa Counties, then venue was proper in either. Where venue can properly be had in two or more counties, the plaintiff has an election to choose the county in which to proceed. Medical Service Administration v. Dickerson, supra. The defendant points out that Count II of the complaint sounds in contract and the contract was executed in Tallapoosa County. Rule 82(c), A.R.C.P. states: “Where several claims .. . have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.” In Rush v. Thomas Duckett Construction Company, 380 So.2d 762 (Ala.1979) the court held that where counts for work and labor were properly heard in the county in which the work was performed, the entire complaint was properly heard in such county even though proper venue for the contract-based counts of the complaint was in another county.

The matter of granting a change of venue is within the sound discretion of the trial court. Ramsey v. Ramsey, 347 So.2d 999 (Ala.Civ.App.1977). In cases involving the exercise of discretion by an inferior court, mandamus may issue to compel exercise of that discretion. It may not, however, issue to control or review its exercise except in a case of abuse of discretion. McBride v. McBride, 380 So.2d 886 (Ala.Civ.App.1980).

PETITION FOR WRIT OF MANDAMUS IS DENIED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gregory A. SULLIVAN v. SOUTH CENTRAL BELL.
    Civ. 2870.
    Court of Civil Appeals of Alabama.
    Dec. 16, 1981.

      G. A. Sullivan, pro se.
    William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee.
   PER CURIAM.

This is an appeal from the trial court’s action granting a motion for summary judgment.

Appellant, Gregory Sullivan, contends the trial court violated certain constitutional rights when it ruled in favor of South Central Bell’s motion for summary judgment.

Mr. Sullivan’s constitutional arguments regarding the trial court’s failure to allow him a trial by jury, etc., are clearly without merit. Rule 56, A.R.C.P. The dispositive issue is whether the trial court erred in granting South Central Bell’s motion for summary judgment. We find the trial court acted properly and affirm.

The record reveals the following pertinent facts: Mr. Sullivan executed a promissory note payable to South Central Bell and defaulted on the note shortly thereafter. A complaint was filed by the company to collect the debt owed by Mr. Sullivan.

Mr. Sullivan’s motion to dismiss the complaint was denied. He then filed a lengthy answer and a counterclaim to which the company responded with a motion to strike. Later, Mr. Sullivan filed an amended answer and counterclaim. The company filed a second motion to strike.

South Central Bell then filed a motion for summary judgment on its claim for money owed by Mr. Sullivan to the company. Affidavits and other supporting documents attached to this motion showed the debt was owed by Mr. Sullivan, thus establishing that there was no genuine issue of material fact.

The trial court ruled in the company’s favor on its motions to strike Mr. Sullivan’s answer, counterclaim, amended answer, and amended counterclaim.

The trial court then gave appropriate notice to the parties that a hearing would be held on appellee’s motion for summary judgment. Mr. Sullivan failed to appear at the hearing or offer counter affidavits in opposition to South Central Bell’s motion and supporting affidavits. The trial court granted the company’s motion for summary judgment for the amount owed on the promissory note, plus interest, costs and an attorney’s fee.

As indicated, Mr. Sullivan appeals, pro se, from the trial court’s action granting summary judgment and we affirm.

It is clear that a copy of South Central Bell’s motion was mailed to Mr. Sullivan in accordance with rule 56. The trial court, in its order, states that Mr. Sullivan had notice of the hearing upon such motion.

The burden, then, in this instance, was on Mr. Sullivan to respond to the company’s motion with counter affidavits to show there was a genuine issue of material fact so that summary judgment would be improper. Glover v. Merchants Adjustment Service, 57 Ala.App. 62, 326 So.2d 129 (1976). A party opposing a motion for summary judgment may not rest upon the mere denials or allegations in his pleadings. Underwood v. Barbour County Board of Education, 372 So.2d 22 (Ala.1979).

Mr. Sullivan failed to respond to the company’s motion by filing a counter affidavit. He did not appear at the hearing before the trial court. Mr. Sullivan’s failure to offer any affidavit or other testimony to contradict the evidence presented by South Central Bell left the trial court no alternative but to consider that evidence as uneontro-verted. Mims v. Louisville Title Insurance Co., 358 So.2d 1028 (Ala.1978). The trial court, in the instant action, properly granted the company’s motion for summary judgment since Mr. Sullivan failed to produce even a scintilla of evidence that there was a genuine issue of material fact.

In light of the foregoing, we find it unnecessary to discuss the other issues raised by Mr. Sullivan on appeal.

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Margie L. DEES v. DALEVILLE FLORIST, et al.
    Civ. 2884.
    Court of Civil Appeals of Alabama.
    Dec. 16, 1981.
    Warren Rowe of Rowe, Rowe & Sawyer, Enterprise, for appellant.
    Joel W. Ramsey of Ramsey & Baxley, Dothan, for appellees.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial court found that the employee suffered a permanent and partial disability to the body as a whole and as a result thereof suffered a 75% loss of her capacity or ability to earn a livelihood.

The employee appeals, contending that the trial court erred in establishing only a 75% disability under the provisions of permanent partial disability as outlined in § 25-5-57(a)(3)(g), Code of Alabama 1975, rather than a permanent total disability under the provisions of § 25-5-57(a)(4), Code of Alabama 1975.

We find no reversible error and affirm.

In a workmen’s compensation case, the decision of the trial court will be upheld upon review if there is any legal evidence to support the trial court’s findings. Hill v. J. P. Stevens & Co., 360 So.2d 1035 (Ala.Civ.App.1978). Viewing the record in light of the above standard, we find the following pertinent facts:

The employee, Margie Dees, injured her foot while working for the employer, Dale-ville Florist. Surgery was required. Employee continued to suffer pain in her foot and continues to have other problems with her foot.

At the hearing, the employee testified that she cannot stand on the foot for more than two hours before suffering from severe pain and swelling. Since employees at the- florist shop must be on their feet most of the day, the employee said she is unable to return to work.

The employee is also trained as a licensed practical nurse and a dental hygienist, although she is not certified as a L.P.N. in Alabama. She testified she has not looked for any employment since sustaining the injury because of the pain in her foot.

A certified personnel consultant testified that the employee could not compete in the job market because of her injury. The employee’s two physicians, though, indicated that the employee would be able to function in a sedentary job.

An orthodontist with experience in placing dental hygienists in local dental offices said the employee’s injury might disqualify her from finding full-time employment in a dental office, but considered the employee marketable as a part-time dental hygienist. A vocational rehabilitation counselor, specializing in the placement of disabled persons, testified that the employee could find gainful part-time employment.

With the above evidence before it, the trial court, as indicated, found the employee had suffered a 75% loss of earning ability due to her injury.

The determination of the proper percentage of disability rests with the trial court. Jackson v. W. L. Smith Poultry Co., 264 Ala. 184, 85 So.2d 893 (1956); Jones v. City of Huntsville, 55 Ala.App. 439, 316 So.2d 689 (1975). The trial judge has the opportunity to observe the courtroom demeanor of the employee and other witnesses. After thoroughly examining the record before us, we cannot say that the trial court’s finding of 75% permanent partial disability is unsupported by the facts. We take particular note, as obviously the trial court did, of the evidence concerning the employee’s skills and marketability for part-time employment.

The employee also contends the statement of facts and conclusions of law made by the trial court were insufficient. We do not agree. Section 25-5-88, Code of Alabama 1975, provides essentially that the judgment of the trial court shall contain a statement of the law applicable to the case, the facts as they relate to the law, and the resulting conclusions. Substantial compliance with this section will suffice. Republic Steel Corp. v. Kimbrell, 370 So.2d 294 (Ala.Civ.App.), cert. denied, 370 So.2d 297 (Ala.1979); Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.), cert. denied, 387 So.2d 206 (Ala.1980). In the instant case, our review of the record clearly indicates substantial compliance with § 25-5-88, and, hence no reversible error.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Karen L. AGEE, et al. v. The PLANNING COMMISSION OF SHELBY COUNTY, Alabama, et al.; and Gaither Spalding d/b/a Spradco Park.
    Civ. 2953.
    Court of Civil Appeals of Alabama.
    Dec. 16, 1981.

      Bruce M. Green of Mitchell, Green & Pino, Calera, for appellants.
    William R. Justice of Harrison, Conwill, Harrison & Justice, Oliver P. Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellees.
   HOLMES, Judge.

This case comes before us as a result of actions taken by the Shelby County Planning Commission pursuant to its enabling act. The appellants, landowners in Beat Twelve of Shelby County, appealed the actions of the Commission to the circuit court which affirmed the action of the Commission. Appellants now appeal the action of the circuit court to this court. For the reasons stated below we hold that the appeal to this court should be dismissed.

The record reveals the following pertinent facts: On February 18,1980, the Shelby County Planning Commission gave preliminary approval to its master plan zoning map and zoning regulations for Beat Twelve. Within the resolution granting preliminary approval, the Commission also resolved that the final plat of Spradeo Park was to be recorded in the probate office twelve months after the Beat Twelve zoning became effective, otherwise preliminary approval of Spradeo Park was null and void. The zoning map and zoning ordinances were submitted to the voters of Beat Twelve and approved by them on April 12, 1980.

Prior to the election, the appellants appealed the’ decision of the Commission granting preliminary approval to Spradeo Park to the Shelby County Circuit Court. The circuit court, on February 19, 1981, upheld the Commission’s action. No appeal was taken from this judgment.

On February 17, 1981, the appellees filed with the Commission a request for an extension of time to record the final plat of Spradeo Park. The Commission granted the extension at its regular meeting on March 16, 1981. Appellants again appealed to the Shelby County Circuit Court, contending generally that the Commission had no legal authority to grant the recording extension either in its February 18, 1980 resolution or its March 16, 1981 resolution. Appellants further contended that the resolution of February 18,1980 was not made a part of the proposed master plan and zoning ordinances which were submitted to the public for vote on April 12, 1980. The circuit court, however, in a judgment entered July 15, 1981, rejected these contentions and upheld the Commission’s action in granting the extension.

The appellants now appeal to this court, contending that the Commission’s resolution of February 18, 1980 regarding Spradeo Park had no legal effect and that the Commission had no legal authority to grant appellees an extension to record the final plat. As stated earlier, we do not believe that the above contentions are properly before this court on appeal.

The right to appeal is purely statutory, and an appeal taken without statutory authority must be dismissed for want of jurisdiction. Wheat v. Ramsey, 284 Ala. 295, 224 So.2d 649 (1969); Hallman v. City of Northport, 386 So.2d 756 (Ala.Civ.App. 1980). The appellate process for decisions of the Shelby County Planning Commission is set out in Section 15 of the Commission’s enabling act. That section, in pertinent part, provides for the following:

Any party aggrieved by any final judg- . ment or decision of the Commission pursuant to the provisions of Section 14 may .. . appeal therefrom ... and such appeal shall be addressed to the circuit court or other court having like jurisdiction within the county where the affected property of the aggrieved party is located. .. .

Clearly, the circuit court has appellate jurisdiction only of judgments or decisions of the Commission entered pursuant to Section 14.

Section 14, in pertinent part, provides as follows:

Anyone wishing to appeal from an existing zoning regulation may file a written petition stating the basis for such appeal whereupon the Commission shall fix a date for such hearing . . . and on such hearing the Commission shall have the following powers: (1) to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Commission or official in the enforcement of this article of any regulation adopted pursuant thereto ....

At no time did the appellants petition the Commission for a hearing as required by Section 14. Consequently, there was no judgment or decision of the Commission entered pursuant to Section 14. The circuit court thus lacked jurisdiction to render a judgment because, as indicated above, a judgment or decision of the Commission entered pursuant to Section 14 is necessary to confer appellate jurisdiction upon the circuit court. Since the circuit court was without jurisdiction to render a judgment, the appeal to this court must be dismissed. Local 1264, International Brotherhood of Electrical Workers v. Broadcast Service of Mobile, Inc., 278 Ala. 29, 175 So.2d 460 (1965); Hallman v. City of Northport, supra.

Put another way, the statutory appellate process begins at the level of the Commission. The appellants in this case have tried to circumvent the appellate process by beginning at the circuit court level. This court cannot sanction that procedure.

In closing, we hold that the circuit court had no jurisdiction to render either its judgment of February 19, 1981, or its judgment of July 15,1981. For this reason the appeal to this court must be dismissed. The legislature has specifically set out the appellate procedure applicable to the Shelby County Planning Commission. This court is not free to ignore that procedure.

APPEAL DISMISSED.

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

      . Act No. 816, Acts of Alabama 1965.


author: BOWEN, Judge.

text:
    Eddie B. MILES v. STATE.
    5 Div. 546.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddiek, Atty. Gen., and Marda J. Walters, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of Willie Lockhart. Alabama Code 1975, Section 13A-6-2 (Amended 1977). Sentence was life imprisonment.

I

Initially the defendant contends that the trial court erred in refusing to grant his motion for an additional investigation into his sanity.

The trial court granted the defendant’s pretrial “motion for the investigation of the sanity of defendant at both the time of the alleged offense and presently.” Pursuant to this order the defendant was examined by Robert Rose, a psychologist with the East Alabama Comprehensive Mental Health Clinic. The findings of Dr. Rose were received by the court and by defense counsel the day before the trial date. When the defendant’s case was called for trial, defense counsel filed the motion for additional investigation of the defendant’s sanity.

In denying this second motion, the trial judge made the following remarks:

“THE COURT: Well, Mr. Jones, (defense counsel), I have gone over this report carefully. I got it yesterday morning. It was delivered to me and I read over it carefully and, of course, I noted in there like the D.A., that the doctor said that it’s a possibility that he may be faking.
“I’m-not basing my decision as much on that as that there is nowhere in here that he ever states that he finds that he (defendant) is suffering from any disease of the mind. He does state in here that he finds that he is — or has no recollection of the events of the crime that he is charged with.
“Well, of course, I find that to be true in many cases that we have up here; they have no recollection whatsoever of what occurred. Whether they do or not, I don’t know, but he does state in there that he is aware of the fact that he is on trial.
“Whether or not he can help you much, there again, there are a lot of defendants that I see up here that are unable to help their lawyer much; but I feel that he is aware of the nature of the proceedings. The doctor says that he appears to be ignorant of legal defenses but, of course, a lot of folks are ignorant of legal defenses.
“I feel that he is competent to stand trial and whether or not he was insane at the time — most of what the doctor is saying here relates to what his condition was at the time of the alleged offense, and whether or not he was insane at the time, and knew what he was doing, that would be a question of fact for the jury to determine.
“For me to postpone this any longer, I would have to commit him to jail; send him to Bryce’s Hospital; and that would result in a postponement of the trial until some time in February; and I feel that he is also entitled to his day in Court, as soon as possible, even though he may be a little mentally deficient.
“But unfortunately, many of our defendants are mentally deficient. So, at this time, I am going to deny your motion for further examination.”

While the report filed by Dr. Rose in compliance with the order of the trial court was neither offered nor admitted into evidence, Dr. Rose testified at trial on behalf of the defendant.

After testing the defendant, Dr. Rose found his intellectual performance “grossly deficient”; “on some items it was even below what you would expect of a two year old.” This surprised Dr. Rose who had to entertain the possibility that the defendant was malingering or making himself appear worse than he really was.

“I had to entertain that possibility because I was faced with a man who had reportedly served in the Armed Forces, held a job for thirty-five years, been married and a parent; he could do all of these things and I had to entertain at least two possibilities to explain that: One was that he, for some reason, was on purpose making mistakes.”

The second possibility was that “that type of low-level intellectual performance could represent a generalized brain deterioration.” However, Dr. Rose could not positively state that the defendant was malingering: “I could not say that it was malingering. I detected a very inconsistent picture that to me suggested malingering or brain damage, one of the two.”

The defendant had a history of mental disorder in his family and reported to Dr. Rose that he suffered hallucinations, which report Dr. Rose confirmed through the defendant’s wife.

Dr. Rose also examined the defendant about his ability to understand his present situation:

“He didn’t have any knowledge that he could express to me about any alternatives such as plea bargaining, understanding what probation meant. And any defense that might be employed such as insanity as a defense. Total lack of understanding of any of these things.”

The defendant could not tell Dr. Rose “what the jobs were that various people play in here, the jury, the judge, the prosecutor, his defense attorney.” Dr. Rose testified that the defendant “sort of appeared” to have a “very passive agreement out of ignorance” with the way his attorney was handling the case. Although Dr. Rose testified that the defendant did understand that he was charged with murder, he was “ignorant” of the penalty. Some of the defendant’s responses to Dr. Rose’s questions reflected “a lack of ... appreciation of his situation.” Dr. Rose thought that there was reason to question whether the defendant could comprehend “instructions and advice.” The defendant had very little memory of “what had happened, as far as the facts.”

Dr. Rose explained that there were three possible explanations for the repeated violent behavior of the defendant: (1) The “unsocialized behavior was not associated with any mental illness or mental condition”; (2) the behavior was related to a mental condition, a psychosis “out of touch with reality”; and (3) the violent episodes were associated with temporal lobe epilepsy. Dr. Rose found “a number of factors that are consistent with “possibility number two: the family incidence of mental illness, the defendant’s reported incoherence and mumbling, hallucinations and test results. Dr. Rose stated that the defendant’s behavior “would be consistent with some psychotic conditions. I don’t know that it’s a probability.” However, Dr. Rose could not give an opinion as to the cause of the defendant’s behavior until the defendant had been examined by psychiatrists or neurologists.

After evaluation of the defendant, Dr. Rose offered three recommendations: (1) That the defendant was seriously enough depressed with a history of one suicide attempt, that his family should be advised thát they should “keep a close eye on him because that (suicide) was a very real possibility”; (2) that the defendant be evaluated by psychiatrists or possibly a neurologist, depending on what the psychiatrist said; and (3) the third recommendation was a period of observing his behavior in a controlled hospital setting to either rule in or rule out whether or not some psychotic conditions existed.

Dr. Rose did not determine that the defendant was competent to stand trial:

“Q. Were you able to determine, Dr. Rose, if in fact Mr. Miles is competent to stand trial?
“A. I cannot say whether in my opinion he is or he is not. I would want to know the result of the examination on the physical factors, and would like to have more information about his mental status, his thoughts, his behavior in the real world, I guess, outside of my office, at any rate, before I gave an opinion on that. I couldn’t say.”

Dr. Rose did find the defendant’s “performance very consistent with being incompetent.”

Near the end of his report, Dr. Rose concluded that, because of the sharp contrast between the defendant’s social functions, recent vocational functioning and the gross deficiencies in his intellectual test responses, there was a possibility that this inconsistency is “suggestive of a conscious attempt to appear mentally deficient.”

Where the issue of competency to stand trial has been properly raised and when facts are present before the trial judge which create a reasonable and bona fide doubt as to the mental competency of the accused to stand trial, the trial judge must take steps to assure a reasonable legal determination of the defendant’s competency. Atwell v. State, 354 So.2d 30, 35 (Ala.Cr.App.1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978). The trial judge has an ongoing and continuing responsibility to prevent the trial of an accused unable to assist in his defense. Atwell, 354 So.2d at 37. A second determination of the defendant’s competency to stand trial may be.required under the same circumstances as an original determination would be required, that is, where there exist facts which raise a reasonable and bona fide doubt of the defendant’s competency. Atwell, supra. An additional psychiatric examination of the accused may be warranted where the circumstances surrounding the initial examination justify a further inquiry in order to obtain a more conclusive evaluation of the accused’s mental condition. See cases collected at 23 A.L.R.Fed. 738 (1975).

The issue in this case is complicated by the fact that there was never any finding made by the psychologist that the defendant was competent or incompetent to stand trial. In essence, the psychologist only found that further investigation of the defendant’s mental condition was warranted.

The discretion exercised by the trial court, in ruling on petitions for mental examinations as to the sanity or competency of the defendant, is subject to review and is not a complete and utter discretion which can never be reversed. Pace v. State, 284 Ala. 585, 587, 226 So.2d 645 (1969). “Where the trial court finds that there are no reasonable grounds to doubt the accused’s sanity, the standard of appellate review is whether the trial judge abused his discretion.” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979).

The determination of the competency of the accused must be that of the trial judge. The trial judge has a duty to “make a specific judicial determination of competence to stand trial, rather than accept psychiatric advice as determinative on this issue.” Cooper v. United States, 119 U.S. App.D.C. 142, 337 F.2d 538, 539 (1964) (Wright, J., concurring), cert. denied, 382 U.S. 1029, 86 S.Ct. 653, 15 L.Ed.2d 542 (1966).

In Pace v. State, 284 Ala. at 587-8, 226 So.2d 645, the Supreme Court of Alabama held:

“The legislature has not given a right to a defendant to receive a mental examination whenever he requests one. Absent such a right, machinery for screening requests must exist. The legislature has made the trial court this screening agent. We cannot say under our past cases that the appellant’s showing was so compelling that the trial court abused its discretion in denying this petition. The trial court held a hearing, listened to the witnesses and made a decision. It might have decided either way on the question of whether the hearing produced any real evidence of legal insanity or legal incompetence. Its decision was not arbitrary or unsupported by reason or fact. We conclude that the trial court did not abuse its discretion.”

In Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971), this Court found that the trial court did not abuse its discretion in refusing to conduct a hearing as to the defendant’s sanity. In support of his petition for a hearing, the defendant offered the testimony of a medical doctor who did not attempt to give an opinion as to the sanity or insanity of the defendant or whether he should be given psychiatric examination to determine this question. The denial of a request for a sanity investigation is an abuse of discretion if arbitrary or if unsupported by evidence or human reasoning. Minnifield v. State, 47 Ala.App. 699, 704, 260 So.2d 607 (1972).

It does not matter that we would have acted differently at nisi prius in view of the recommendation of the psychologist. Lokos v. State, 278 Ala. 586, 590, 179 So.2d 714 (1965). The .question we must decide is whether the trial judge abused his discretion in not granting the defendant’s motion for further investigation. Under the facts of this case we find no abuse of that discretion. Pace, supra; Thompson v. State, 364 So.2d 683 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 364 So.2d 687 (Ala.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979). A trial court is under no mandatory duty to appoint a lunacy commission or to procure the report of a state hospital, but simply has the right to seek these aids for advisory purposes when the court, in its discretion, thinks that such aids will be helpful. Eaton v. State, 280 Ala. 659, 197 So.2d 761 (1967); Divine v. State, 279 Ala. 291, 184 So.2d 628 (1966); Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.), cert. denied, Ex parte Beauregard, 372 So.2d 44 (Ala.1979). On a hearing of a motion for a competency investigation, the defendant has the burden of persuasion. Wilson v. State, 371 So.2d 932 (Ala.Cr.App.), affirmed, 371 So.2d 943 (Ala.1978).

Here the allegations that the defendant was unable to effectively assist in the preparation of his own defense were only general, conclusionary and nonspecific. The psychologist’s report was not introduced into evidence and is not a part of this record. The trial judge had the distinct advantages of not only carefully studying the entire report but of observing the demeanor and conduct of the defendant. We have not had either of these opportunities. Under these circumstances we find no clear abuse of the discretion of the trial judge.

II

A review of the totality of the circumstances surrounding the giving of his confession reveals that the defendant made a knowing and intelligent waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), despite his mental subnormality and limited education. Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980), and cases cited at 384 So.2d 1181.

Nick Abbett, at that time captain of the Investigative Division of the Opelika Police Department, advised the defendant of his Miranda rights. Aware of the defendant’s lack of education, Captain Abbett asked the defendant what each right meant to him as he explained each right to the defendant.

“However, because of his lack of education, I asked him what each one of those rights meant to him, as I explained them to him. I had him explain them back to me, what it meant to him.
“And he clearly repeated back to me what they meant to him, and it was consistent with what’s on the (waiver) form.”

The record in this instance expressly and specifically establishes that the constitutional rights were simply and clearly explained to the defendant. Hines, 384 So.2d at 1181. We find no error in the admission of the defendant’s confession into evidence.

Ill

We have carefully examined the written charges requested by the defendant and find that each was properly refused.

After searching the record we have found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex Parte Eddie B. MILES. (Re: Eddie B. Miles v. State of Alabama).
    80-817.
    Supreme Court of Alabama.
    Jan. 8, 1982.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Patricia BULLARD v. STATE of Alabama.
    5 Div. 562.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Patricia Bullard was indicted and convicted of “assault in the first degree” in violation of § 13A-6-20, Code of Alabama 1975. After a pre-sentence hearing the trial court fixed punishment at twenty years’ imprisonment.

On June 16, 1980, the appellant shot several rounds from her .32 caliber pistol into Jack Leavelle’s automobile, injuring Mr. Leavelle, his wife, and their grandson. There was no dispute at trial that the appellant committed this unprovoked attack.

I

Appellant’s sole defense was that she was “not guilty by reason of insanity.” Consequently, her only contention on appeal is that the jury’s verdict was contrary to the weight of the evidence establishing this insanity defense. The pertinent facts are set out below.

The appellant, Patricia Bullard, had a history of mental and emotional problems. On two prior occasions she had been admitted to Bryce Hospital in Tuscaloosa for treatment. She had been involved in two earlier shooting incidents where on separate occasions she shot her grandmother and her husband. The former incident dated back to 1969 and corresponded to her first commitment to Bryce Hospital.

The appellant was known to have a quick and violent temper, often “set off” by emotional problems. By appellant’s own admission she was an alcoholic. When she drank, her temper was even worse.

Several months before this shooting incident, appellant had moved into a trailer on the property of her friends, Jack and Stella Leavelle. Earlier, she had separated from her husband, Herbert Bullard, but he still visited or telephoned her at the trailer several times a week. A few months before the shooting, appellant’s two daughters and her granddaughter moved into the trailer with appellant. However, both daughters had moved out before the shooting because they “couldn’t really get along” with their mother.

Before and after her daughters and granddaughter moved out, the appellant began to have problems that she blamed on Jack Leavelle. Her trailer was situated on the bank of a lake that was infested with snakes. Appellant was afraid the snakes would harm her granddaughter and accused Mr. Leavelle of placing them in the lake. One day the appellant found some broken glass behind her automobile and accused Mr. Leavelle of trying to sabotage her car. A few nights béfore the shooting someone wrote “H E L L” on the highway at the entrance of her driveway and appellant blamed that on Mr. Leavelle or his grandson. On another occasion appellant thought that Mr. Leavelle had intentionally tried to back his ear into her granddaughter. Having attributed all of these problems to Mr. Leavelle, she consequently blamed him when her second daughter and granddaughter moved out of the trailer for the last time.

On the Saturday before the shooting, the appellant kept her granddaughter for the day. When she took the baby home to her mother, appellant pleaded with her daughter to move back to the trailer. Late Sunday afternoon appellant’s daughter called her and for the last time refused to move back with her.

Appellant began drinking for the first time in two and a half years and that night consumed a fifth of wine and four beers. She got little sleep that night and consumed six more beers the next morning.

Later that morning, Monday morning, she picked up her husband at work and drove him to a local store where he bought her a box of ammunition for her .32 caliber pistol so she could “shoot some snakes.”

On Monday afternoon Mr. Leavelle, his wife and their grandson passed appellant on the highway near their home. When appellant stopped quickly, Mr. Leavelle stopped too, because he had seen the appellant drive by his home earlier and thought that she was looking for his wife. After stopping, he backed his car down to hers to see what she wanted. The appellant walked over and chatted briefly about her daughters and the fact that they had moved out of the trailer for good and then, without any warning or indication that she was upset with the Leavelles, she walked back over to her automobile and picked up her .32 caliber pistol. As she walked back towards the Leavelles’ car she exclaimed, “I’m tired of people shi_on me.” She pulled the gun up and fired several times, wounding Mr. Leavelle in the arm and chest, wounding Mrs. Leavelle in both legs, and wounding their grandson in the hip.

The appellant then left the scene. She was spotted later by a sheriffs deputy, who immediately gave pursuit. She lead this law enforcement officer on a high-speed chase before she was eventually apprehended.

Most of the evidence of appellant’s insanity prior to the shooting came from the testimonies of her husband, Herbert, and her two daughters. They all testified that the appellant was “not in her right mind” for several days leading up to the shooting.

Appellant also produced expert testimony that she was insane. Dr. Robert A. Rose, a clinical psychologist employed by the East Alabama Mental Health and Mental Retardation Center, testified that his examination of appellant eleven days after the shooting revealed that she was then suffering from “paranoid schizophrenia.” He concluded that this condition was consistent with the shooting incident.

The prosecution elicited testimony that in spite of their contentions that the appellant was insane, none of her relatives sought medical assistance for the appellant prior to the shooting. In fact, one of her daughters allowed the appellant to babysit for her granddaughter the Saturday before the shooting and Mr. Hubbard purchased a box of ammunition for the appellant on the day of the shooting. The state asserts that these factors along with such facts as that the appellant had been drinking just prior to the shooting, and fled right after the shooting contradict the evidence of insanity. Moreover, the state points out that Dr. Rose admitted on cross-examination that individuals suffering from “paranoid schizophrenia” may, nevertheless, be able to distinguish right from wrong, and that fleeing the scene of a crime would suggest that the perpetrator knew he had done something against the law. (R. 173). Lastly, the state points to the testimony of the Leavelles, the only people who viewed the appellant at the time of the shooting. It was their testimony that other than appearing a little upset that her daughters had moved out of her trailer, the appellant was “acting normal” up until the time she pulled the gun out and began shooting. Until then the appellant had had a normal conversation with them and gave no indication of what she was about to do.

At the conclusion of the evidence, the trial court properly instructed the jury on the issue of insanity. The jury’s verdict of “guilty” indicates that they were not persuaded that appellant was insane at the time of the shooting.

II

The law in Alabama regarding the defense of insanity, although not always easily applied, is clearly stated in § 13A-3-1, Code of Alabama, 1975, as follows:

“(a) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
“(b) ‘Mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
“(c) Lack of criminal responsibility under this section is a defense.” (Emphasis added)

The determination that an individual, because of his mental disease or defect, either cannot distinguish right from wrong or, knowing right from wrong, cannot resist criminal conduct, is one which must be made by the jury from a consideration of all the evidence in each case. Section 15-16-2, Code of Alabama 1975; Christian v. State, 351 So.2d 623 (Ala.1977), and cases therein cited; Graham v. State, 383 So.2d 892 (Ala.Cr.App.), cert. denied, 383 So.2d 895 (Ala.1980); Bowen v. State, 386 So.2d 489 (Ala.Cr.App.), cert. denied, 386 So.2d 492 (Ala.1980).

In making its determination, the jury must begin with the presumption that the appellant is sane. Section 15-16-2, supra; Christian, supra. It, thus, becomes the defendant’s burden, throughout the course of the trial, to prove to the jury by a “preponderance of the evidence” that he was insane at the time of the crime. Christian, supra; Graham, supra; Bowen, supra; This burden is not overcome by expert testimony of the defendant’s insanity alone, because the jury need not consider such testimony as conclusive. Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954); Bowen, supra. Consequently, the jury in the instant case was justified in weighing the testimony of Dr. Rose, the clinical psychologist, just like all the other evidence presented.

We have reviewed the record on appeal and have concluded that for aught that appears the jury properly weighed the evidence presented and returned a verdict that cannot be labeled “arbitrary” or “patently erroneous.” Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, 364 So.2d 416 (Ala.1978); Bowen, supra.

We concede that this is a close ease. However, it is apparent that the appellant did not clearly and conclusively establish her insanity at the time of the shooting to the jury’s satisfaction. She did not overcome the burden of proof with the evidence presented.

It is true that a few similar convictions have been reversed because “there was apparently nothing before the jury to rebut the great mass of testimony directly showing actual insanity before, at the time of, and after the act in question.” Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978), and cases therein cited; Christian, supra. In these cases the initial conviction was based solely on the “presumption of sanity.”

However, the jury in this case had ample facts from which to draw an inference that the accused was in fact sane. Graham v. State, supra. The jury heard the testimony of the victims that the appellant appeared normal until she pulled out the gun and started shooting. The jury knew that appellant’s husband, who testified that she was insane, nevertheless, bought her a box of ammunition on the day of the shooting; The jury heard the sole expert witness, Dr. Rose, testify that the appellant, despite her mental condition, could have had the ability to determine right from wrong. They also heard him say that her flight from the scene of the shooting indicated that she indeed knew she had done something wrong. And most importantly, the jury was afforded the opportunity of viewing the appellant on the witness stand. They, therefore, had ample information from which to draw their conclusion as to appellant’s sanity. We believe this to be correct.

This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Patricia BULLARD. (Re Patricia Bullard v. State of Alabama).
    81-76.
    Supreme Court of Alabama.
    Jan. 8, 1982.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

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


text:
    David CLARK, Jr. v. STATE.
    1 Div. 257.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

On his plea of guilty the defendant was convicted and sentenced to seven years’ imprisonment for theft in the first degree.

It is undisputed that the trial judge refused to follow the recommendation in the plea bargain and further refused to allow the defendant the opportunity to withdraw his plea after a timely request. This was contrary to the holdings of this Court in Griswold v. City of Enterprise, 384 So.2d 1219 (Ala.Cr.App.1980), and English v. State, 56 Ala.App. 704, 325 So.2d 211, cert. denied, 295 Ala. 401, 325 So.2d 216 (1975), and constitutes reversible error.

The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


text:
    Ex parte State of Alabama. Re David CLARK, Jr. v. STATE of Alabama.
    81-217.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   PER CURIAM.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    David MERRL, alias v. STATE.
    3 Div. 382.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Edwin L. Yates, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Embezzlement, § 13-3-20; sentence: ten years’ imprisonment.

In May 1979 appellant opened Miscellaneous Furniture Company in Montgomery, Alabama, while he was a fugitive attempting to avoid a four to twenty-five year jail sentence in Ohio. In June, Debra Mowery purchased a $234.99 three-piece living room suite from the appellant and gave his employee a $120 cash deposit. Ms. Mowery was given a receipt for the payment. Appellant informed her that he would have to order the furniture and that it should reach Montgomery in about two weeks. At that time Ms. Mowery would pay the balance of the purchase price due.

Not long after this transaction occurred, appellant disappeared. He told his employees that he was flying to Washington, D.C., for the weekend to be married and would be back on Monday, but he never returned. At trial appellant testified that he had discovered that a man hired to make deliveries for him worked during the daytime as a deputy sheriff. Appellant feared that Montgomery authorities were about to arrest and send him back to Ohio to serve his sentence so he concocted the Washington story to “cover his trail.” Instead, he went to Colorado and set up a similar “business” there. After a brief time, he moved to Oregon and started another “business” which he continued until he was arrested on warrants from Alabama. Appellant jumped bond in Oregon and fled to California opening two more businesses there before authorities finally caught up with him and concluded his shamming enterprises.

Appellant admitted withdrawing money from the furniture company bank account when he absconded from Alabama. The State presented testimony from several witnesses who were similarly swindled by the appellant to show a pattern of illegal conduct. Furniture company employees testified that these “down payments” were either converted to one hundred dollar bills and handed over to the appellant or were deposited to the company bank account. An investigating police officer declared that at least fifty-four people complained to Montgomery authorities about appellant’s business activities. .

Omitting the formal parts of the complaint, appellant was indicted as follows:

“David Merrl ... the agent, and/or fiduciary of Debra Mowery did embezzle or fraudulently convert to his own use, or to the use of another, or fraudulently secrete with intent to convert to his own use, or to the use of another, money and checks, or money or checks to the amount of about $120.00 and of that value, which said money and checks or money or checks had come into his possession by virtue of his agency and/or fiduciary relationship with Debra Mowery.... ”

Appellant contends that the State failed to prove a prima facie case of embezzlement. We agree.

Embezzlement is a statutory criminal offense. Section 13-3-20, Code of Ala. 1975; Benefield v. State, 46 Ala.App. 592, 246 So.2d 479 (1970), reversed, 286 Ala. 722, 246 So.2d 483 (1971). The State must prove two essential elements: first, a breach of trust in respect of money, property, or effects in the defendant’s possession belonging to another; secondly, the wrongful or fraudulent appropriation thereof to his own use. Adams v. State, 43 Ala.App. 281, 189 So.2d 354, cert. denied, 280 Ala. 707, 191 So.2d 372 (1966). “In order to justify the submission of the case to the jury, it is necessary that there should be proof of at least some act from which the court can infer that the offense was committed.” Benefield, supra, at 484.

In order to convict the appellant of embezzlement, it is essential that the State establish beyond a reasonable doubt the requisite relationship between the appellant and the prosecuting witness, Debra Mowery. Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972). The State failed to prove an agency or fiduciary relationship between them. The term “agent” as used here is to be construed in its popular sense; meaning one who undertakes to transact some business, or to manage some affair for another, by the authority and on account of the latter, and to render an account of it. Rogers v. State, 37 Ala.App. 8, 65 So.2d 525 (1952), cert. denied, 259 Ala. 124, 65 So.2d 531 (1953).

In Echols v. State, 158 Ala. 48, 48 So. 347 (1909), in a fact situation similar to that in the instant case, the supreme court found no embezzlement was committed. In that case Echols was a tailor who accepted a down payment on a suit of clothes, but never delivered the suit as promised. The court stated:

“[A]n agent is ‘one who undertakes to transact some business or to manage some affair for another, by the authority and on account of the latter, and to render an account of it’; also that ‘ “agent,” as employed in this section, imports a principal, and implies employment, service, delegated authority to do something in the name and stead of the principal.’— Pullan v. State, 78 Ala. 31, 34, 56 Am. Rep. 21. The relation of principal and agent did not exist between the prosecutor and the defendant, but the relation of seller and purchaser. The defendant did not undertake to do anything in the name and stead of the prosecutor. The money was not placed in his hands to be used or cared for, and accounted for to the prosecutor, but was paid to him in part settlement for a suit of clothes, and thereby became the money of the defendant, to use as he pleased. Whatever other liability or penalty the defendant may have incurred, he could not be convicted of embezzlement on the facts of this case.... ”

The relationship of principal and agent did not exist between Ms. Mowery and appellant, but rather the relationship of buyer and seller. Echols, supra; Boyd v. State, 41 Ala.App. 507, 138 So.2d 60 (1962). Appellant did not undertake to do anything in the name and stead of Ms. Mowery. The money was not placed in his hands to be used or cared for, and accounted for to her, but was paid to him in partial satisfaction for the purchase of furniture, and thereby became the money of the appellant to use as he pleased. Appellant did not fraudulently convert the money to his own use — it belonged to him.

The crime of embezzlement often overlaps with the offenses of larceny and obtaining property by false pretenses. Rogers, supra. We are aware that if the elements essential to constitute embezzlement are present, an accused is nonetheless guilty thereof even though the elements of other offenses are also present. Such is not the case here. Whatever other liability or penalty the appellant may have incurred in the course of his spurious business enterprise, he could not be convicted of embezzlement on the facts presented by the State in the instant case.

REVERSED AND RENDERED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte State of Alabama. (Re David MERRL, alias v. STATE of Alabama).
    81-212.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    James Curtis WALLACE v. STATE.
    8 Div. 485.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.

      Stephen V. Hammond, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for rape in the first degree. Section 13A-6-61, Alabama Code 1975 (Amended 1977). Sentence was 99 years’ imprisonment.

I

The prosecutrix did not testify. On appeal, the defendant maintains that the complaint she made identifying, her assailant should not have been admitted into evidence because it was not part of the res gestae. We disagree.

On the afternoon of the 14th of March 1980, Mrs. Nell Nichols went to the home of her neighbor, the 78 year old prosecutrix. The prosecutrix was sitting in a chair and appeared normal. Mrs. Nichols observed the defendant coming out of the prosecu-trix’s home with a water bucket. Earlier, Mrs. Nichols had seen the defendant getting coal for the prosecutrix.

Mrs. Nichols left the prosecutrix and went to the home of another neighbor where she was going to build a fire. Sometime thereafter, anywhere from thirty minutes to one hour and one-half, Mrs. Nichols’ nine year old daughter came running and told her that she had better see about the prosecutrix. Mrs. Nichols testified:

“My little girl came over and she said, ‘Mama, mama,’ she say, ‘You come on and see about Mrs. — ,’ I said, ‘Wait a minute, Barbara. I will make a fire and be there in a minute.’ She said, ‘You come on now.’ ”

Mrs. Nichols put the paper in the heater to start the fire which took “no time at all.” Mrs. Nichols then went “straight” to check on the prosecutrix and found her upset and crying in the bedroom and “pulling up her clothes.”

Mrs. Nichols testified that when she entered the bedroom the prosecutrix asked her why she did not help her.

“She asked me, ‘John Nell (Mrs. Nichols), how come that you didn’t hear me?’ She said, ‘That man was over here ravishing me.’ She said, ‘How come you didn’t come and help me?’ I told her that I didn’t hear her.”

On redirect examination, Mrs. Nichols testified that the prosecutrix told her “that Dooley (defendant) had ravished her.” The trial judge allowed this testimony as a “fresh report” over the objection of defense counsel that it was hearsay.

This Court recently considered this same legal issue in Harris v. State, 394 So.2d 96 (Ala.Cr.App.1981).

“In a prosecution for rape, evidence of the complaint of the prosecutrix is admissible. C. Gamble, McElroy’s Alabama Evidence, Section 178.01 (3rd ed. 1977). However, the details and particulars of that complaint cannot ordinarily be introduced. Allford v. State, 244 Ala. 148, 12 So.2d 407 (1943). An exception to this rule is that ‘the full details of the complaint are admissible if the complaint is admissible as a spontaneous exclamation under that particular exception to the hearsay rule.’ McElroy at Section 180.01. Res gestae is a term of ‘convenient obscurity’ often used to describe this exception. Illinois Central R. R. v. Lowery, 184 Ala. 443, 63 So. 952 (1913).
“To be admissible under this exception, the statement must be spontaneous. The ‘question of spontaneity is to be decided upon the facts and circumstances of each individual case and such a determination is a question for the trial judge’ whose action in admitting the statement should not be held to be error unless this Court would be justified in concluding that under all and any reasonable interpretation of the facts the exclamation could not have been spontaneous. McElroy at Section 265.01(2).”

Considering the degree of startlingness of the occurrence, how much time passed after the occurrence but before the statement was made, the effect of intervening events, if any, the nearness of the place where the statement was made to the place of the occurrence, the condition of the de-clarant, the content of the statement itself, and all other factors relating to whether the declarant was under the stress of a nervous excitement at the time the statement was made, see McElroy at Section 265.01(2), we conclude that the trial judge acted within the legitimate bounds of his discretion in admitting the details of the complaint as a spontaneous exclamation. Harris, supra.

II

The defendant complains of the severity of the 99 year sentence he received. Rape in the first degree is a Class A felony which carries a sentence of life imprisonment or not more than 99 years or less than 10 years. The trial judge reviewed a pre-sentence report before passing sentence.

This Court has no jurisdiction to review sentences within the statutorily prescribed limits. Brown v. State, 392 So.2d 1248 (Ala.Cr.App.), cert. denied, Ex parte Brown, 392 So.2d 1266 (Ala.1980).

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

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex Parte: James Curtis WALLACE. (Re: James Curtis Wallace v. State of Alabama).
    81-224.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    John Robert BEASLEY, alias v. STATE.
    8 Div. 491.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.

      John Mark McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Trafficking in cannabis, § 20-2-80, Code of Ala. 1975; sentence: imprisonment for twenty years and one day and $25,000 fine.

On September 19, 1980, following a “rolling surveillance” spanning several months, Huntsville law enforcement officers executed a probable cause search warrant at the home of the appellant. Pursuant to the search, they discovered marijuana piled on the kitchen table, a marijuana cigarette in a purse belonging to appellant’s wife, and marijuana residue in three pipes located in various rooms throughout the residence. The amount of marijuana found totaled 2.4 pounds. The appellant was present during the early morning search, and police officers seized a utility bill addressed to appellant’s wife at the address described in the warrant and the residence being searched.

I

At the pretrial hearing on appellant’s motion to suppress the evidence obtained during the search, appellant’s attorney established that the warrant magistrate who issued the search warrant in the instant case was not licensed to practice law in Alabama. The trial judge, however, questioned the warrant magistrate and ascertained that he was a full-time magistrate on September 1, 1976, and had continued in such capacity as a merit system employee in the district court. Appellant maintains that, while the provisions of § 12-17-251(c)(l) were thus met, the 1980 amended act continues to be an invalid local law and, therefore, the warrant magistrate lacked legal authority to issue the search warrant here. We disagree.

The 1980 amendment to § 12-17-251(c)(1) reads:

“(c) The powers of a magistrate shall be limited to:
“(1) Issuance of arrest warrants and, where such magistrate is licensed to practice law in Alabama or was serving as a full-time magistrate or warrant clerk on September 1, 1976, and who continued in such capacity as a merit system employee in the district court, search warrants . . . . ”

Appellant argues that this amendment merely combines the 1977 amendment to § 12-17-251(c)(l) and Act No. 407, Acts 1975, page 1005, in a local act attempting to include the non-attorney magistrates of Tuscaloosa and Madison counties in the statute authorizing only magistrates who are licensed attorneys to issue search warrants.

We held that the 1977 amendment to § 12-17-251(c)(l) was a local act and consequently invalid in Newton v State, 375 So.2d 1245 (on rehearing) (Ala.Cr.App.), cert. denied, 375 So.2d 1250 (Ala.1979). The 1977 amendment (Act No. 551, Acts 1977, page 740) added to the statute authorizing magistrates to issue arrest warrants and, if licensed to practice law in Alabama, search warrants, the following:

“provided however, any person who was serving as a full-time magistrate, ex-offi-cio judge, or assistant ex-officio judge of any county court of this state, six months prior to the effective date of the implementation of this act by the creation of a District Court in Tuscaloosa County, and is continuing to serve as a magistrate of a District Court, may issue arrest warrants and search warrants.” (Emphasis added.)

We determined in Newton that the 1977 amendment conflicted with Rule 18 11(A)(3)(a), Alabama Rules of Judicial Administration, which established the rule that only magistrates licensed to practice law in Alabama may issue search warrants. Since § 6.11 of the Judicial Article (Amendment 328 of the Constitution of Alabama of 1901) provides that “[tjhese rules may be changed by a general act of statewide application,” or by the Supreme Court of Alabama, we held the 1977 amended act invalid as an attempt to change rule 18 11(A)(3)(a) by a local act.

Likewise, we held that Act No. 407, Acts 1975, page 1005, was an invalid local act in Ringer v. State, 394 So.2d 69 (Ala.Cr.App.), cert. denied, 394 So.2d 72 (Ala.1980), appeal after remand, 394 So.2d 72 (Ala.Cr.App. 1981), based on the authority of Newton, supra. Act No. 407 amended Act No. 790, Acts 1973, page 1203, creating the office of warrant magistrate in Madison County and provides:

“ ‘Section 5. Duties. The duties of the warrant magistrate or' any duly authorized assistant warrant magistrate shall be as follows:
“‘(b) To take evidence and affidavits in support of search warrants and to issue warrants....’”

The warrant magistrate who issued the search warrant in Ringer is the same magistrate issuing the search warrant in the case at bar.

We find that the 1980 amendment to § 12-17-251(c)(l) is a general act of statewide application. Amendment No. 375 of the Constitution of Alabama of 1901, Art. IY, § 110, defines both general and local laws as follows:

“A general law is a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class. ...
“A special or private law is one which applies to an individual, association or corporation. A local law is a law which is not a general law or a special or private law.”

A careful study of legislative acts demonstrates that the language of the 1980 amendment does not purport to limit its application to any particular subdivisions of this state, but rather encompasses the entire state. Therefore, appellant’s contention is without merit.

II

During the pretrial hearing on his motion to suppress, the appellant also insisted that there was no probable cause to issue the search warrant. He contends that the dual “prongs” of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), applying to warrants based on hearsay information supplied by unidentified confidential informants, were not shown here. We believe that they were clearly established in the affidavit signed by Officer D. Della-Calce and were later reaffirmed by the testimony elicited at the hearing.

This two-pronged test provides that a tip may supply the basis for probable cause in and of itself where it discloses: (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable (the “veracity prong”); and (2) some of the underlying circumstances tending to demonstrate that in the specific instance in question he has drawn his conclusions of criminality in a reliable manner (the “basis of knowledge prong”). Aguilar, supra; Hatton v. State, 359 So.2d 822 (Ala.Cr.App.), cert. quashed, 359 So.2d 832 (Ala.1977); Murray v. State, 396 So.2d 125 (Ala.Cr.App. 1980), cert. denied, 396 So.2d 132 (Ala.1981).

Officer Della-Calce, the subscribing affiant, spoke with an informant on September 17, 1980, the date the warrant was issued. The confidential informant had given him substantiated information on at leást ten previous occasions and on one occasion had been directly involved with the confiscation and seizure of illicit drugs. On September 17 Officer Della-Calce watched the informant enter appellant’s residence. When he came out he told Della-Calce that he had observed a large quantity of marijuana inside. This information was consistent with direct observations of Della-Calce pursuant to the “rolling surveillance” he kept on appellant’s residence for several months prior to that date. Della-Calce observed constant suspected drug activity and participated in two “set-ups” by informants sent by narcotics agents to purchase contraband from the appellant. Obviously, probable cause was clearly established.

Ill

At 7:20 a. m. on September 19, 1980, following a telephone call to ascertain that the home was occupied, Officer Della-Calce, four other narcotics agents, and one deputy sheriff arrived with the search warrant and converged upon appellant’s home at 4801 Blue Haven Drive, Huntsville, Alabama. After the other agents positioned themselves at the rear of the house, Officer Della-Calce and the deputy sheriff approached the front door and the deputy knocked and announced he had a search warrant. Della-Calce testified that he “heard some movement inside” and “kicked the door open.” He admitted that the time span between the moment the deputy knocked and when he kicked in the door was only “a matter of seconds.” This estimation was repeated in the testimonies of the accompanying officers.

Appellant urges this court to determine whether these law enforcement officers complied with § 15-5-9, Code of Ala. 1975, Alabama’s “knock and announce” statute, when they forced entrance into his residence before he refused to admit them. We decline to make such a determination because that specific issue was never presented to the trial court. Giles v. State, 382 So.2d 1177 (Ala.Cr.App.1980). While we do not condone the conduct of the police as described here, the record does not reveal any objection either at trial or in pretrial motions focusing on the officers’ obvious disregard of Alabama’s “knock and announce” statute.

Appellant merely stated in his motions to dismiss the indictment and suppress the evidence that “the police officer’s conduct violated the Defendant’s constitutional rights to be free from unreasonable searches and seizures, U.S.Const.Amend. IV, U.S.Const. Amend. XIV.” Such a casual reference to constitutional guarantees did not direct the trial court’s attention to a potential violation of § 15-5-9. It is a well-settled rule in Alabama that appellate review is limited to matters properly raised in the trial court. Dailey v. State, 374 So.2d 414 (Ala.Cr.App. 1979). A silent claim cannot be noisily resurrected on appeal. Brown v. State, 392 So.2d 1248 (Ala.Cr.App.), cert. denied, 392 So.2d 1266 (Ala.1980); Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). Therefore, without some express objection or ruling adverse to the appellant in the trial court, the instant question was not properly preserved for review.

IV

Appellant argues in brief that a cigarette case which contained a small amount of marijuana and a roll of cigarette papers was inadmissible because it was not within the scope of the' warrant to search appellant’s premises. The case belonging to appellant’s wife was recovered from her purse located in a bedroom of the residence. When the State offered the cigarette case into evidence, appellant’s attorney objected that the State had not shown the relevancy of the item to the case at bar. The trial court withheld a ruling on its admission into evidence until the State could establish its relevancy. Later, after the prosecutor elicited testimony that the marijuana in the cigarette case was included in the total 2.4 pounds seized from the appellant’s home, appellant’s counsel then asserted, “And again, sir, we would renew our objection to it.” The trial judge overruled the defense objection, and the cigarette case was admitted into evidence.

The scope of the search warrant was not mentioned as a ground for objection at trial. All grounds not specified are waived, and therefore the trial court will not be put in error on grounds never assigned. Knight v. State, 381 So.2d 680 (Ala.Cr.App.1980). Review of objections to admission of evidence is not available unless appropriate grounds are stated. Johnson v. State, 364 So.2d 1187 (Ala.Cr.App.), cert. denied, 364 So.2d 1190 (Ala.1978). The cigarette case was properly admitted into evidence since the State demonstrated its relevance to show where a portion of the total amount of marijuana was discovered.

V

Appellant contends that a set of scales, three pipes bearing traces of marijuana residue, an “Alligator” or roach clip, a leaf-embossed black cigarette holder, and a brown leather carrying bag containing several clear plastic bags and thousand dollar bank wrappers that were introduced into evidence were inadmissible because they were irrelevant. We disagree.

Evidence to be competent and admissible must be relevant. In other words evidence must tend to prove or disprove the issues before the jury. Hill v. State, 366 So.2d 296 (Ala.Cr.App.), affirmed, 366 So.2d 318 (Ala.1978). “Any fact which has a causal connection or a logical relation to another fact, so as to make the other fact either more or less probable, is competent or relevant.” Stokes v. State, 373 So.2d 1211, 1215 (Ala.Cr.App.), cert. denied, 373 So.2d 1218 (Ala.1979). The general rule is that articles which are properly identified and which tend to show the commission of the crime or the manner in which it was committed or elucidate some matter in issue are admissible in evidence for inspection and observation by the jury. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied, 292 Ala. 743, 290 So.2d 213, cert. denied, 419 U.S. 853, 95 S.Ct. 97, 42 L.Ed.2d 85 (1973). The determination of the relevancy vel non of particular evidence rests largely in the sound discretion of the trial judge. Hill v. State, supra.

The Alabama Supreme Court has held that the admission of various items of drug “paraphernalia” is permissible in order for the State to show the “complete story.” Brantley v. State, 55 Ala.App. 493, 317 So.2d 337 (1974), reversed, 294 Ala. 344, 317 So.2d 345 (1975), on remand, 55 Ala.App. 717, 317 So.2d 347 (1975), cert. denied, 294 Ala. 346, 317 So.2d 348 (1975). See also McHellen v. State, 351 So.2d 689 (Ala.Cr. App.1978); Mitchum v. State, 384 So.2d 1193 (Ala.Cr.App.), cert. denied, 384 So.2d 1205 (Ala.1980); Green v. State, 384 So.2d 1215 (Ala.Cr.App.1980). However, in Brantley, the predecessor of these cases, the court explained that the “complete story” was necessary in order to determine whether the marijuana in that case was possessed for sale or for personal use. Section 20-2-80, Code of Ala. 1975, does not make a felony/misdemeanor distinction based upon the use for which marijuana is possessed. Section 20-2-80 is strictly a felony offense. The State must only prove in the ease at bar that the appellant was “knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis.” We believe that these items were relevant as circumstantial evidence illustrating knowing possession of marijuana by the appellant. Therefore, the trial judge properly admitted the contested items into evidence.

VI

Appellant was adjudged guilty of “trafficking in cannabis” contrary to § 20-2-80, Code of Ala. 1975 (1980 Cumulative Supplement) Act No. 80-587, Acts 1980, page 926. Appellant asserts that this act violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. He contends that the State indicted him under § 20-2-80 while other identical offenders have been charged with violation of the less stringent older provision, § 20-2-70. Appellant claims that both of these statutes encompass the same criminal act. We note, however, that the appellant completely missed the obligatory hurdle for appellate review when he failed to raise this question at the trial below. Constitutional rights must be seasonably raised in the lower court. Hollis v. State, 380 So.2d 409 (Ala.Cr.App.1980). Therefore, the constitutionality of Act No. 80-587 is not subject to review on the instant appeal.

Nevertheless, it is necessary for this court to examine the interplay between §§ 20-2-70 and 20-2-80 because appellant insists that the trial judge erred when he instructed the jury that the appellant could not be found guilty under § 20-2-70 if he possessed more than 2.2 pounds of marijuana.

A state, in the exercise of its police power, may regulate the administration, sale, possession, and use of narcotic drugs. Warren v. State, 52 Ala.App. 35, 288 So.2d 817, reversed on other grounds, 292 Ala. 71, 288 So.2d 826, on remand, 52 Ala.App. 708, 288 So.2d 832 (1973). Without analyzing these two statutes in their entirety, concentrating only on the proscriptions against marijuana possession, we find that any conflicts or discrepancies in penalties, definitions, or other differences between those sections must be resolved in favor of § 20-2-80.

The Alabama legislature enacted § 20-2-80 in 1980 and by express provision repealed all laws or parts of laws conflicting with that act. Section 20-2-70 was passed in 1971 as a part of the Alabama Controlled Substances Act. Hence, § 20-2-80 supersedes the application of § 20-2-70 when the offender possesses in excess of 2.2 pounds of marijuana, whether for personal use or sale, and whether for the first time or as a repeat offender. We find that the legislature did not intend to completely repeal § 20-2-70. Rather, its application is now limited to offenders who possess 2.2 pounds of marijuana or less. For those defendants misdemeanor treatment is still available for first offenders proving personal use, and subsequent felony offenders possessing 2.2 pounds or less of marijuana will be punished as provided by the first and last clauses of § 20-2-70. Therefore, we find the instruction given by the trial judge in this case was consistent with this analysis and resulted in no error.

Appellant additionally argues that the State failed to prove a prima facie case of “trafficking in cannabis.” Quite to the contrary, the State presented positive and unequivocal proof that the appellant knowingly possessed 2.4 pounds of marijuana. We believe the State furnished ample evidence upon which the jury could base a finding of guilt.

VII

Finally, appellant contends that the maximum sentence of life which may be imposed under § 20-2-80 constitutes cruel and unusual punishment in derogation of his rights protected by the Eighth Amendment to the United States Constitution.

The trial judge did not sentence the appellant to life, but to imprisonment for twenty years and one day. We have previously held that “where the punishment prescribed by the legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment.” Messelt v. State, 351 So.2d 636, 639 (Ala.Cr.App.), cert. denied, 351 So.2d 639 (Ala.1977). “Whatever merit there may be in the argument made by appellant if and when addressed to the Legislature, it furnishes no support for a determination by the court, in favor of appellant, of his contention as to the unconstitutionality of the punishment prescribed by the Legislature.” Burch v. State, 375 So.2d 546, 548 (Ala.Cr.App.1979).

We find that the actual sentence to be served by the appellant furnishes him no standing to raise an issue of the constitutionality of a potential maximum sentence which was not imposed. Appellant did not argue that twenty years and one day was an excessive term of imprisonment. The punishment was fair, timely administered, and well within the statutory limit, and we find nothing to review. Brown v. State, 392 So.2d 1248 (Ala.Cr.App.), cert. denied, 392 So.2d 1266 (Ala.1980).

AFFIRMED.

All the Judges concur-.


author: JONES, Justice.

text:
    Ex parte John Robert BEASLEY. (Re John Robert Beasley v. State of Alabama).
    81-219.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Randall GREENE v. STATE.
    8 Div. 548.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    J. N. Powell, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted of sexual abuse in the first degree. Section 13A-6-66, Code of Alabama 1975 (Amended 1977). Sentence was two years’ imprisonment.

The defendant contends that the evidence presented by the State of Alabama was insufficient to support his conviction. In order to sustain a conviction of sexual abuse in the first degree the evidence must prove that (1) a person, 16 years of age or older, (2) subjected another person under age 12 (3) to sexual contact. Section 13A-6-66. Sexual contact is defined as “(a)ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.” Section 13A-6-60(3).

The defendant’s argument is completely devoid of factual and legal merit. The State’s evidence, if believed by the jury, is sufficient beyond any reasonable doubt to support the defendant’s conviction.

The defendant was found lying on top of a three year old female child. The defendant’s trousers were down around his ankles and he had an erection. The child was completely naked. The defendant was seen kissing the child on the side of her neck. The child’s stepfather observed the defendant lying on top of the victim “moving in a fashion that a man ordinarily does when he is having sexual intercourse with a female.” Under these circumstances we fail to see how the defendant can even begin to argue that the State failed to prove the element of sexual contact.

Despite the fact that no physical damage was done to the child, the depravity and perversity of the defendant’s actions shock the conscience of this Court. We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte Randall GREENE. In re Randall Greene v. State of Alabama.
    81-230.
    Supreme Court of Alabama.
    Jan. 22, 1982.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Charles McDonald VICKERY v. STATE.
    1 Div. 262.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of marijuana in violation of Alabama Code 1975, Section 20-2-70(a). Sentence was fifteen years’ imprisonment.

I

The defendant contends that he was denied his right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution. We agree.

The chronological facts and events governing this issue are as follows:

June 5, 1976: The defendant was arrested at the Eight Days Inn in Mobile after a search of his camper revealed several bundles of marijuana.
June 28,1976: The defendant was indicted for felony possession of marijuana. The indictment listed New Caney, Texas, (located a short distance from Houston), as the defendant’s address.
The defendant was placed on probation for 5 years for an unrelated federal offense. The probation was originally to be supervised in Mobile, but was transferred to Houston, Texas. The defendant resided in Houston until August 6, 1979. His probationary period ended June 7, 1979. May 13, 1977: After several continuances, the defendant’s April 26, 1977, motion to quash the indictment was granted, apparently in response to a federal court order. The defendant resided in Houston at this time.
July 1, 1977: The defendant was re-indicted for the June 5,1976, offense and a warrant of arrest was issued sometime afterward. The outstanding indictment was placed in the N.C.I. computer.
August 6, 1979: The defendant returned to Alabama and resided in Creóla, which is located in Mobile County. During the term of his residency, defendant’s stepson attended a local school and on October 14, 1979, his common law wife gave birth to their child. The birth was announced in a local newspaper.
April 1, 1980: The defendant and his family returned to Houston.
April 1,1980 — May 18,1980: The defendant was arrested in Florida on the outstanding warrant on N.C.I.C. He was transported to Alabama.
May 18, 1980: The defendant was arraigned on the July 1, 1977, indictment. May 28, 1980: The defendant moved, in writing, to dismiss the indictment based upon a denial of his right to a speedy trial.
June 10,1980: A hearing was held on the defendant’s motion. The State offered no evidence to illustrate its efforts in locating the defendant to serve the outstanding warrant of arrest. The State’s witness could not testify to the efforts, if any, made. The motion was denied. March 18, 1981: The defendant renewed his speedy trial motion, which was again denied. His motion to suppress was also denied. The defendant’s trial began. March 19, 1981: The defendant was found guilty of felony possession of marijuana.
March 23, 1981: The defendant was sentenced to fifteen years’ imprisonment.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), established four factors that must be weighed and balanced in determining whether or not a denial of an accused’s Sixth Amendment right to a speedy trial has occurred. They are: (1) the length of the delay, (2) the accused’s assertion of his right, (3) the reason or reasons for the delay, and (4) prejudice to the accused. Barker, supra, at 530, 92 S.Ct., at 2191.

The protection of the speedy trial clause of the Sixth Amendment “is activated only when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971); Prince v. Alabama, 507 F.2d 693 (5th Cir. 1975); Turner v. State, 378 So.2d 1173 (Ala.Cr.App.), cert. denied, 378 So.2d 1182 (Ala.1979). Clearly, a person becomes an “accused” for speedy trial purposes when an indictment is returned against him. Marion, 404 U.S. at 320, 92 S.Ct. at 463; Corn v. State, 387 So.2d 275 (Ala.Cr.App.), cert. denied, 387 So.2d 280 (Ala.1980); Davis v. State, 387 So.2d 268 (Ala.Cr.App.), cert. denied, 387 So.2d 274 (Ala.1980); Andrews v. State, 370 So.2d 1070 (Ala.Cr.App.), cert. denied, 370 So.2d 1075 (Ala.1979).

1.Length of Delay.

The defendant was re-indicted for the June 5, 1976, offense on July 1, 1977. At this point, his right to a speedy trial attached. We reject any notion that his right attached prior to July 1, 1977, for as of June 28, 1976, when his first indictment was quashed, a criminal prosecution against him had not begun. See Wade v. State, 381 So.2d 1057 (Ala.Cr.App.), cert, denied, 381 So.2d 1062 (Ala.1980); Bailey v. State, 375 So.2d 519 (Ala.Cr.App.1979).

Sometime between April 1, 1980, and May 18,1980, the defendant was arrested in Florida and returned to , Alabama on the instant charge. On June 10, 1980, his motion to dismiss the indictment based upon a denial of a speedy trial was denied. From June 10, 1980, to February 2, 1981, when several of the defendant’s motions were denied, no action was taken to bring him to trial. On March 18, 1981, some three years and eight and one-half months after his indictment, the defendant was tried for the June 5, 1976, offense. Within this period of time, approximately eight and one-half months passed from the denial of the defendant’s motion to dismiss the indictment until his trial.

As we stated in Corn, 387 So.2d at 277:

“This delay is long enough to be ‘presumptively prejudicial’ and trigger inquiry into the other factors bearing on the alleged denial of a speedy trial. Since this delay is ‘patently offensive’ we must determine whether it is ‘unjustified’. However, this delay is not sufficient in and of itself to justify a finding that the guarantee of a speedy trial has been violated.” (Citations omitted).

2. Assertion of Right.

The record establishes that the defendant asserted his right to a speedy trial 10 days after his arraignment on the instant charge. This was approximately two months from the date that he was arrested in Florida and first made aware of his reindictment in Alabama.

A defendant cannot waive his right to a speedy trial without knowledge of the indictment. Wade, 381 So.2d at 1060. He has no duty to bring himself to trial. That responsibility is placed upon the State. Barker, 407 U.S. at 527, 92 S.Ct. at 2190; Ex parte Collins, 53 Ala.App. 577, 302 So.2d 551, cert. denied, 293 Ala. 750, 302 So.2d 555 (1974). Despite the contention of the Attorney General, the record reveals no evidence of flight or efforts of misleading identification by the defendant to avoid prosecution. United States v. Jones, 543 F.2d 1171 (5th Cir. 1976).

“(T)he defendant’s assertion of his speedy trial right ... is entitled to strong eviden-tiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-2, 92 S.Ct. at 2192-3.

We find that the defendant asserted his right to a speedy trial without undue delay.

3.Reason for the Delay.

At the outset, we note that the instant case does not fall into the situation where the delay may be attributable to the defendant’s action, Walker v. State, 386 So.2d 762 (Ala.Cr.App.), cert. denied, 386 So.2d 765 (Ala.1980), or where the defendant’s whereabouts is known and the State does not act. Turner, supra; Slaughter v. State, 377 So.2d 632 (Ala.1979). Further, the case is not one of “availability” as in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), Prince v. Alabama, supra, or Corn, supra.

At the defendant’s hearing, the State could offer no reason for the delay in the execution of the warrant issued on the July 1, 1977, indictment. The State’s witness testifying to the efforts to locate and arrest the defendant stated that the file on the defendant had been lost. Consequently, he could not definitely state what, if any, efforts had been made to execute the arrest warrant.

Any indications of the State’s efforts to locate the defendant are at best vague and indefinite. Sergeant James Orso, although not called as a witness by the State at the hearing on the motion for speedy trial, stated to the court: “It seems to me, Your Honor, that we put him on N.C.I.C.” Assistant District Attorney Thomas E. Harrison stated: “My notes indicate that the Sheriff served the copies of the writ down to Texas, now when that occurred or whatever I don’t know.” (Emphasis added).

Although we cannot determine the reasons for the delay, the record does not show that the State discharged its “constitutional duty to make a diligent good faith effort” to bring the defendant to trial. Smith, 393 U.S. at 383, 89 S.Ct. at 579. Perhaps the strongest evidence that the State did not make any diligent good faith effort to bring the defendant to trial is the fact that the State could not even locate the defendant’s “file” to determine what, if anything, had been done. We particularly note that the trial judge found the delay “inexcusable”.

It is our conclusion, based upon the facts as reflected in the record, that the reason for the delay can, at the very least, be attributed to the negligence of the State in its efforts, or lack thereof, to locate the defendant. In our balancing test this reason cannot be weighed against the defendant even if the reason be considered of “neutral” weight.

4. Prejudice to the Accused.

At the defendant’s hearing, and later immediately prior to trial, the defendant asserted that he had not been able to locate potential witnesses to his arrest in the motel restaurant and the search of his trailer. Furthermore, he argued that the whereabouts of his companion on June 5, 1976, Pat Presswood, who was also arrested and indicted, is unknown to him and to the State. His attorney, with the defendant’s help as well as that of the defendant’s wife, attempted to locate Presswood but without success. For these reasons the defendant contends that he could not adequately prepare his case.

“Prejudice to the defendant’s defense goes to the reliability and integrity of the fact finding process.” Prince v. Alabama, 507 F.2d at 707. “Prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The most serious of these interests is the possibility that the defendant’s defense will be impaired. “(T)he inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses ... disappear during a delay, the prejudice is obvious.” Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

In a drug case involving a warrantless search and seizure, it is a common practice for an accused to challenge the validity and legality of the arrest and search. Since the issue is usually reduced to a “swearing match” between the accused and the police, an eyewitness, be he friendly or hostile, would have an extremely important influence in the preparation and formation of a strategy for the defense.

The defendant stated that every effort had been made to locate potential witnesses at the restaurant. The defendant discovered that the people employed at the restaurant at the time of his arrest were no longer employed there. He had also been unable to locate his companion at the time of his arrest.

It would be speculation on our part to guess the content of the above witnesses’ testimony, and further speculation as to whether such would be beneficial to the defendant’s defense. “But we can know that the search for truth has been severely hampered and that, on this and other aspects, defendant has demonstrated ‘the likelihood, or at least reasonable possibility, that (he) has been prejudiced by the delay.’ ” United States v. Mann, 291 F.Supp. 268, 273 (S.D.N.Y.1968). Cf. Wade, 381 So.2d at 1061 (where no attempt to locate potential witnesses was made by the accused).

Applying the balancing test set out in Barker, we find that each of the four factors must be placed on the defendant’s side of the scale. Although some factors weigh more heavily for the defendant than others, no single factor is favorable to the State. The trial court erred in denying the defendant’s motion to dismiss the indictment for want of a speedy trial. Under Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), this cause must be reversed and rendered.

II

Another assertion of error made by the defendant concerns a comment made by the prosecuting attorney in his closing argument. The defendant contends that it was a comment on his failure to testify. The comment is quoted below:

“MR. HARRISON (Assistant District Attorney): Now, he says that the Defendant asked him for the telephone number of Tom Haas. Now, this was on the cross examination, and then I think on redirect, from the statement of five . .. almost five years ago, in June of 1976, when the notes he had made about that same time or shortly thereafter. Mr. Haas (defense counsel) brought ’em out and said well, who got the phone number, who dialed the number or who looked up the number or whatever. He gets this other information — it says Tom, looked up the phone number of Tom . . . the residence of Tom Haas on that Saturday, was asked to look up that telephone number. Now, have you heard any testimony that Sergeant Gill did not do that? Have you heard one word that Sergeant Gill did not do that?” (Emphasis added).

We note that the defendant did not initially object to the comment, but rather requested to be heard by the trial court off the record. After the jury had been sent to deliberate, the defendant stated for the record the substance of the off-the-record discussion, which revealed that he had moved for a mistrial based upon the above quoted comment. The motion was denied. The trial judge gave his approval to the defendant’s rendition of the off-the-record discussion.

It is clear that the above comment can only be construed as a comment on the failure of the defendant to testify. The only witnesses to the telephone call and the surrounding circumstances were the defendant and Sergeant Gill. No other person but the defendant could refute the testimony of Sergeant Gill concerning the circumstances of the telephone conversation with his attorney. Such amounts to reversible error unless the trial court takes proper action to eradicate its harmful effect. Whitt v. State, 370 So.2d 736 (Ala.1979); Robinson v. State, 352 So.2d 11 (Ala.Cr.App.), cert. denied, 352 So.2d 15 (Ala.1977).

We distinguish this situation from those where the prosecutor’s comment is to the effect that the State’s evidence is uncontra-dicted or refers to the failure of the defendant to put on any evidence. Griffin v. State, 393 So.2d 523 (Ala.Cr.App.1981).

In the instant case, the defendant himself is the only person who can contradict or deny the State’s evidence. Thus, the remark must be regarded as a comment upon his failure to testify. Thompson v. State, 382 So.2d 1184 (Ala.Cr.App.1980); Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); Robinson, supra.

No remedial measures were taken by the trial court to cure this error. Whitt, supra. Consequently, reversible error occurred. Meade v. State, 381 So.2d 656 (Ala.Cr.App.), cert. denied, 381 So.2d 659 (Ala.1980).

III

While we seriously question the use of the self-verifying detail test to satisfy both the basis of knowledge prong and the veracity prong of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (see Stanley v. State, 19 Md.App. 507, 508, 313 A.2d 847 (1974); W. LaFave, 1 Search and Seizure, Section 3.3 at p. 546 (1978)), we need not reach the issue of the legality of the search and seizure presented by this case because of our finding that the defendant was denied a speedy trial.

Because the prosecutor commented upon the failure of the defendant to testify, this case must be reversed. Because the defendant was denied his right to a speedy trial, this case must be reversed and rendered.

REVERSED AND RENDERED.

All Judges concur.

      . In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), the right was established as “fundamental” and applicable to the States through the due process clause of the Fourteenth Amendment.