text:
    Rickey HARRIS v. STATE.
    6 Div. 473.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    B. Don Hale, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was charged by information with the unlawful use in Cullman County of steel leg traps designed for the purpose of capturing wild animals. The circuit judge, sitting without a jury, found the defendant guilty of violating Act No. 264 of the Regular Session of the 1977 Alabama Legislature. The defendant was fined ten dollars and costs.

At trial, the facts were stipulated and the only issue there as here is the constitutionality of Act No. 264. That act provides:

“Section 1. The provisions of this act shall apply to all counties having a population of not less than 50,000 nor more than 52,500 inhabitants according to the 1970 or any subsequent federal decennial census.
“Section 2. It shall be unlawful to sell, offer for sale or to use steel leg-hold traps designed for the purpose of capturing wild animals.
“Section 3. Any one convicted of violating the provisions of this act shall be guilty of a misdemeanor.
“Section 4. The provisions of this act are severable. If any part of the act is de-dared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 5. All laws or parts of laws which conflict with this act are hereby-repealed.
“Section 6. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
“Approved April 26, 1977.”

Under the 1970 census, Cullman County is the only county to which the provisions of this act are applicable. Alabama Code 1940, Recompiled 1958, Population Tables, Volume 14B.

The Circuit Court found that Act No. 264 was not unconstitutional: “The legislative enactment herein was before Peddycoart v. City of Birmingham, 354 So.2d 808.” However, the mere fact that Act No. 264 became effective before the decision in Ped-dycoart, does not mean that it is constitutionally valid.

“Henceforth when at its enactment legislation is local in its application it will be a local act and subject to all the constitutional qualifications applicable to it. With regard to legislation heretofore enacted, the validity of which is challenged, this Court will apply the rules which it has heretofore applied in similar cases.”
Peddycoart, 354 So.2d at 814.

Although, the constitutionality of Act No. 264 is not governed by the principles of prospective application found in Peddyc-oart, the answer to the issue in this case is summarized in Peddycoart.

“Our cases have held that such a relationship must exist between the statute’s purpose and the population classification established, otherwise the classification will be deemed arbitrary, e. g., Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937). The case of Couch v. Rodgers, 253 Ala. 533, 45 So.2d 699 (1950) reviews many of our decisions on this point, in some of which we reasoned that the circumstance of size did bear a reasonable relationship to the purpose of the legislation. But we are unable to ascertain in this case such a relation. The purpose of Section 660 is to provide governmental immunity, but that immunity is to be granted only to the largest city in the largest county in the state. If there is any reasonable relationship between the grant of immunity and the size of its population as denoted by its corporate boundaries, we are unable to perceive it. ‘Judicial ingenuity would exhaust itself in an effort to find any rational basis for the classification it presents.’ City of Birmingham v. Moore, 248 Ala. 422, 425, 27 So.2d 869, 872 (1946).”
Peddycoart, 354 So.3d at 810.

If there is any reason why a county having a population within the range of a minimum of 50,000 and a maximum of 52,-500 should have a special classification for the purpose of prohibiting the sale or use of steel leg-hold traps designed for capturing wild animals as prescribed in the Act here in question, so as to make it “general” under section 110 of the Constitution of Alabama of 1901, we do not see the basis for it. Couch v. Rodgers, 253 Ala. 533, 536, 45 So.2d 699 (1950). That there is no reasonable relation between the population classification and the purpose of Act No. 264 is as much as admitted by the State which declined to file a brief in this cause “(i)n view of the population classification as defined in Act No. 264 .... ”

Furthermore, section 104 of the Alabama Constitution of 1901 provides that “the legislature shall not pass a special, private, or local law in any of the following cases: * * (14) Fixing the punishment of crime.” In State v. Rogers, 281 Ala. 27, 198 So.2d 610 (1967), a local law making it a misdemeanor to fish with nets in Limestone County was held to be a violation of this section and therefore unconstitutional. We find that Act No. 264 is also unconstitutional under the principles of Rodgers.

For these reasons the judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Michael Leon BREWSTER v. STATE.
    7 Div. 764.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Ronald L. Allen, of Merrill, Merrill, Mathews & Allen, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction, based on the verdict of a jury, for the possession of marijuana and a sentence to imprisonment for three years.

No question is raised by appellant as to the sufficiency of the evidence to support the verdict and judgment. He limits his “Statement of the Issues” to his contention that the trial court committed “reversible error by its failure to grant defense counsel’s Motion to Suppress the Evidence.” The evidence to which reference is made was nearly a pound of marijuana that was found in the trunk of an automobile, which, according to the undisputed evidence, was in the automobile while defendant was driving it. It was found in the trunk of the automobile while being searched pursuant to a search warrant after the automobile had been brought to the Calhoun County Jail. It had a short time before been stopped by officers at a road block, just after defendant brought it to a stop from a highly excessive and unlawful rate of speed on a public highway. Thereupon, in conversing with the driver and the other men in the automobile, officers observed a marijuana cigarette on the floorboard in front of the back seat of the automobile, and the four men were caused to lie face down on the ground for checking. Thereafter, the automobile and its four occupants were taken to the Calhoun County Jail, and a warrant was obtained to search the automobile.

Appellant divides his contention into two separate parts: (1) that defendant’s arrest was unlawful and (2) that the bag of marijuana was procured by an unreasonable search and seizure in violation of the Fourth Amendment to the Constitution of the United States, in that the search warrant was issued without being supported by an affidavit showing probable cause for believing that the automobile contained the controlled substance found in the trunk.

There were several stages of the Motion to Suppress, including the presentation and hearing of it before the trial commenced and during the progress of the trial. Some of the evidence as to the Motion to Suppress was presented in the presence of the jury and some out of its presence.

We examine first appellant’s claim that his arrest was unlawful. As to this, appellant takes into consideration all of the evidence, which we now summarize.

Officer Max Gessler of the Ohatchee Police Department testified that while he was on patrol on December 16,1979, at approximately 1:30 P.M., he spotted a white Mercury automobile with a Michigan tag, driven by the appellant, traveling in an opposite direction from the witness. He recognized the automobile as one that Chief Pearson had directed him to be on the lookout for as it was supposed to be transporting illegal drugs. He said Chief Pearson had told him that it was “a white vehicle with Michigan tag and it would have black males in it.” The automobile was traveling “around 35 or 40 miles an hour” at the time, which was well within the legal limit. According to Officer Gessler’s testimony, he then turned his automobile around and the following occurred:

“The vehicle took off at a high rate of speed and I pursued him for a quarter to a half of a mile and then the vehicle passed another vehicle and — at that time I was going about 110 or 115 miles per hour to try to catch the vehicle and then I hit my blue light and siren for him to stop and he — at which time he would not stop and I proceeded to follow him out to 431 where I had called the Calhoun County Sheriff’s Department to intercept him and at that time that is when I did get the car stopped.”

The car was stopped about seven or ten miles from the place where it was first followed by Officer Gessler to a road block supplied by deputy sheriffs.

Deputy Sheriff Alan Reese, one of the officers participating in the road block, testified that after hearing Officer Gessler’s radio transmission, the road block was set up and the automobile was stopped. In the automobile was the defendant, the ¿river, whose identity was later learned. With him on the front seat was his brother, Michael Brewster. In the back seat were two men by the names of Teague and Mozell Jonakan. The four men were taken to the Calhoun County Jail, and the automobile in which they were riding was towed to the same place.

In arguing that the arrest of defendant was illegal, appellant emphasizes the testimony of Officer Reese to the effect that all of the occupants of the automobile were placed under arrest at the place of the road block , and charged with the possession of marijuana.

Whatever the rights of the three passengers in the automobile and however such rights may have been violated, which we do not pass upon at this time, we are unable to agree with appellant’s contention that defendant was unlawfully arrested, searched and taken to jail. A crime, though a misdemeanor, had been committed by defendant in the presence of the arresting officers. It was not as appellant says, a “routine traffic” offense. We cannot agree with the implication that the arrest was “by reason of the suspects ambiguous conduct which the arresting officers themselves have provoked.” The fact that an officer in an officially marked automobile is trailing a motorist would logically provoke him to slow down, not to drive at a dangerous and even death-defying rate of speed. Appellant also emphasizes that “Officer Gessler had already made up his mind to stop the vehicle based on what Chief Pearson had told him, not on any violation of any traffic offense.” Irrespective of what Officer Ges-sler had in mind at the time he turned around and followed the defendant, it was his right and his duty to stop and arrest him when it became obvious that he was a menace to the safety of others upon the road.

Officer Reese’s characterization of the arrest at the scene of the road block as an arrest for possession of marijuana appears to us as an over-simplification, but even if the arrest of defendant at the time was for the possession of marijuana, the obvious belief of the officers who arrested him that marijuana was in the automobile was greatly strengthened by the flight of the defendant. Tiner v. State, 279 Ala. 126, 134, 182 So.2d 859 (1966).

The contention of appellant that the officers had no probable cause for arresting defendant, even for the possession of marijuana, is somewhat incongruous with the defendant’s own testimony on the trial in which, although he denied knowledge of the presence of the marijuana in the trunk, he said as to his flight that the occupants of the back seat told him, “Run, because we are smoking this here and if they stop us, because if they stop us we are all going to go to jail anyway.” He was asked why he fled and replied, “Because they were smoking dope in the back.”

As to the question of the validity of the search warrant, the affidavit made by Chief Pearson before a judge of Calhoun County Circuit Court could issue it contains the following statement of facts:

“My name is J. L. Pearson. I am the Police Chief for the City of Ohatchee, Alabama. Over the past year to 18 months I have received information on several occasions regarding a white Mercury automobile with a Michigan tag and driven by a black male. My informant identifies herself as one Michele Brewster. This informant told me that the above automobile comes to the Ohatchee area during various holiday seasons and brings marihuana and cocaine from Michigan. About 5 months ago this woman called me, told me the car was back in town and had drugs in it. Deputy Hur-ston Hodges and I spotted this car and turned around and gave chase. The car eluded us. This morning I got a message through the Calhoun Co. jail and from Deputy Watson that a Michele Brewster called and told him that the above car was in the Ohatchee area and had marihuana and hasish (sic) in it. At about 1:30 P.M. this date, Officer Gessler of my department spotted the car. I had told him to watch out for it and why. He turned around on the car and it attempted to out run him. The car was finally stopped on Highway 431 by aid of a Calhoun Co. Sheriff’s car. Marihuana was found on the occupants of the car. The car is now in custody and the occupants are under arrest. I believe the trunk of this automobile to contain marihuana.”

Appellant’s argument as to the asserted insufficiency of the affidavit to support the search warrant is addressed exclusively to the absence from the affidavit of any showing to the effect that the “informant” who identified herself to Chief Pearson as “Michele Brewster” was a reliable informant. Chief Pearson was interrogated intensively and extensively as to this while testifying on the pretrial hearing of the Motion to Suppress and out of the presence of the jury after the trial had commenced. A pertinent part of his testimony relied upon specifically by appellant was as follows:

“Q. Have you ever met that informant, to your knowledge?
“A. Not to my knowledge.
“Q. Do you know who that informant was?
“A. She identified — excuse me, my speech. She identified herself as Michelle Brewster.
“Q. But, you don’t know that it was Michelle Brewster?
“A. No, sir.
“Q. Has Michelle Brewster ever provided you any information that has led to an arrest?
“A. No, sir.
“Q. Based on this, Chief, would you say that she is reliable?
“A. Based on what?
“Q. Based on the fact that she has never provided you any previous information, that you have never met the woman and the fact that you don’t know that you were talking to Michelle Brewster; would you say that that is a reliable informant?
“A. No, sir.”

The enigma of the identity of the person who called Chief Pearson at intervals over an extended time is not solved by the record in this case. However, the only witness, other than defendant, who testified in his behalf on the trial, was Denise Michelle Marshall, defendant’s sister, who testified that she was not the person that called Chief Pearson, that she had never called him, that she lived in Ohatchee at the time of the trial but was staying in Tuscaloosa at the time of defendant’s arrest. She said further that she did not know where defendant lived but she thought he was living in Michigan, but that she saw him at their mother’s home in Ohatchee “a day or so” before he was arrested.

That uncorroborated information that a felony has been committed, or is being committed, that comes solely from a person whose credibility has not been shown, is not trustworthy enough to furnish probable cause for belief that the information furnished is true, when the person furnishing the information comes within a particular type of informer or informant, is thoroughly established. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971); Hadley v. State, Ala.Cr.App., 391 So.2d 158, 161 (1980).

Chief Pearson’s testimony that he would not say that the person who called him under the name of Michelle Brewster “is a reliable informant” is to be considered in the context of the question to which his statement as an answer was given. Furthermore, it is to be considered and interpreted in the light of the specific meaning of the word “informant” as there used and in cases in which it has been held that the credibility of the person who gives the information must be established in order for the information to serve as a basis for an arrest or the issuance of a warrant. The chief made it clear that he did not place the informant in the category of a reliable informant who had been previously tested and found to be credible in repetitive cases of past or existing criminal conduct. He could have come to no other conclusion, as he did not know the informant and perhaps at first put little credence in what she told him, but by reason of her importunity over a period of many months in which there was no variation, he could only be able to conclude that she was either fatuous or factual. The result established the second alternative, although it does not establish either alternative of whether or not she was Michael Brewster. Whatever her purpose, whatever her motive, whatever her relation to the defendant, good or bad, an experienced officer, such as the chief, could have reached no reasonable conclusion other than that the information was trustworthy to the extent at least of proceeding on it stage by stage, as was done, with an accumulation of corroboration at each stage.

Although the unique status of the informant in this case defies definite categorization, it is certain that she was not in the category of the usual police informer. Although she could have been acting in a spirit of revenge, hate or jealousy toward the person whom she thought would have been operating the particular automobile, she could hardly have had any intent to mislead the authorities. There could have hardly been any motive to do so. She may not have been influenced any by a spirit of good citizenship, but she did not partake of the nature of persons who have been authoritatively held to be informers as to whom the requirements of Aguilar, supra, and Spinelli, supra, must be met, for the reason that there was no expectation of gain or concession in exchange for the information. Loveday v. State, 74 Wis.2d 503, 247 N.W.2d 116 (1976); State v. Paszek, 50 Wis.2d 619, 184 N.W.2d 836 (1971); Hadley v. State, supra.

Search of the trunk of the automobile and the seizure of the marijuana therein did not constitute an unreasonable search and seizure as prohibited by the Fourth Amendment.

The court was not in error in denying defendant’s Motion to Suppress.

It should be said, we think, to the credit of defendant, that he took the stand and met the accusation head-on. His explanation was that the automobile belonged to his brother in Grand Rapids, Michigan, that defendant drove the automobile from Grand Rapids and arrived at his mother’s house in Ohatchee the day before he was arrested; that the next morning he and another brother (Alfred) took a ride in the car; that they picked up Mozell Jonakan and Alton Teague, who started smoking marijuana. He saw two joints, which they were still smoking when the police car was noted and defendant commenced picking up speed after being told to do so by the men in the rear seat. They had offered Alfred a third joint but he hadn’t taken it. Defendant said also:

“When Alfred got down to the jail they found one on him then. They found one in his boot and one in his pocket and they found some on Alton.”

He further said that he knew that “Alfred had marijuana on him” when they started off in the automobile from his mother’s house. According to the testimony of defendant, his traveling bag had been in the back seat of the automobile in traveling from Michigan to his mother’s house and he had not opened the trunk of the automobile. His testimony left room for some inference that the night before the arrest or sooner someone had taken his keys, or another key, and placed marijuana in the trunk without the knowledge of defendant. His testimony was to the effect he had smoked marijuana but he had never been charged with it or convicted of crime other than minor traffic violations. It appears that the court took into consideration the favorable features of his testimony, as well as all other pertinent matters, in fixing defendant’s punishment at imprisonment for three years, suspending execution and placing him on probation.

We find no error in the record prejudicial to defendant, and the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Donnie Lee ECKLES v. STATE.
    8 Div. 390.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.

      Robert W. Walker of Walker & Mus-grove, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   ON REHEARING

BOWEN, Judge.

The defendant was indicted for the offense of theft of property in the first degree under Alabama Code 1975, Section 13A-8-3. A jury convicted him of the lesser included offense of attempt. Sentence was two years’ imprisonment. Probation was denied because of the defendant’s past criminal record which revealed a “disregard of the law”.

Initially this case was affirmed without published opinion. In his application for rehearing, the defendant raises one issue which we now address as we did originally.

Error is alleged because the prosecutor was allowed to show the witness a copy of the indictment to refresh a witness’s recollection regarding the ownership of the stolen property.

Initially this witness testified that the property was owed by Reynolds Metal Company, Reduction Division, in Richmond, Virginia. The indictment recited “Alabama Reclamation Plant, Reynolds Metals Company, Inc.”

After considerable confusion as to who owned what, the witness “clarified” his answer. From all this testimony, it is clear that the ingots were “owned” by Alabama Reclamation Plant which is owned by Reynolds Metals Company. The Reduction Plant is a division of Reynolds Metals Company.

Even if there had been a variance in the indictment and the proof, this variance was not material and could not have misled the defendant or been substantially injurious to him in making his defense. See Edwards v. State, 45 Ala.App. 136, 227 So.2d 134 (1969). While the District Attorney should not have shown the witness the indictment, we do not think that it was prejudicial error for the trial judge to overrule the defendant’s general objection and motion for a mistrial on that ground.

After examination of the entire case, it does not appear “that the error complained of has probably injuriously affected substantial rights” of the defendant. Rule 45, Alabama Rules of Appellate Procedure.

We have searched the record for error as required by law. The application for rehearing is overruled and the judgment of the Circuit Court is affirmed.

APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


text:
    Newburn Ray WILSON v. STATE.
    5 Div. 517.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.

      Billie Anne Tucker, LaFayette, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Chambers County returned an indictment for robbery against the appellant, Newburn Ray Wilson, and two other persons. The appellant made a motion for a severance, and the motion was granted. The appellant entered a plea of not guilty, was convicted, and sentenced to twenty-five (25) years imprisonment.

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

The appellant contends in his brief that the court erred to his prejudice, First, when it overruled his motion to dismiss for the failure of the state to respond to his written motion to produce requested photographs used in pre-arrest photographic identification, and a written statement of any accomplices; Second, when it overruled his motion to dismiss for lack of a speedy trial; Third, when it overruled his motion for a continuance.

On May 29, 1980 when appellant’s case was called for trial the appellant’s counsel moved the court to dismiss on two grounds: First, because of the failure of the state to respond to appellant’s motion to produce that had been filed some year and a half; Second, a motion to dismiss for lack of a speedy trial. The trial court denied the motions to dismiss. The appellant’s counsel then objected to going to trial because the court had placed the case at the top of the docket, and the appellant’s counsel was not ready for trial because neither the appellant nor his witnesses, who were confined to prison on other charges, had been made available to counsel for appellant until a few minutes before the case was to go to trial. This motion was denied.

A motion to produce, copies of written statements or confessions, substance and details of any oral statements or confessions, list of physical evidence, and the source and circumstances under which it was secured, pictures and number and the names of the persons whose likenesses are represented, and the details and condition of the circumstances of any identification, and a full statement of circumstances and condition of any statements or confessions which might have been taken from accomplices, was filed with the clerk of the court on May 15, 1979, and a copy of the motion was mailed to the Assistant District Attorney for Chambers County, and to the District Attorney for the Fifth Judicial Circuit. A motion to suppress evidence, intended to be produced at the trial, obtained by illegal search, and any tainted, in-court identification of the defendant, was filed with the clerk on May 15, 1979. A copy was mailed to the Assistant District Attorney for Chambers County, and the District Attorney for the Fifth Judicial Circuit. We have searched the record and do not find that the motion to produce or the motion to suppress were ever called to the attention of the trial court, or were ever presented to the trial court for a hearing until after the case was called for trial on May 29, 1980. The motion to produce and the motion to suppress were filed for about one year and fourteen days before the case was called for trial. The last setting of the case for trial was about sixty days before the case was called for trial. The court denied the written motion, but required state’s counsel to furnish a written statement of a co-defendant, and state to the defense counsel the items found in the escape car, viz, a pistol, drugs, and money, and advised the appellant’s counsel that during the course of the trial oral motions made on behalf of the appellant would be entertained.

The motion to produce, and the motion to suppress were filed with the clerk of the Circuit Court on May 15, 1979, and a copy of each sent to the District and Assistant District Attorney for Chambers County. The motions were not called to the attention of the trial court, nor was an order setting them down for a hearing requested by counsel for the appellant until after the case was called for trial on May 29, 1980. Among the reasons for pre-trial motions to produce, or to suppress, are to avoid delay and undue interruption during the trial. They should be disposed of before the trial date. We hold that the trial court did not abuse its discretion when it denied appellant’s written motions to produce and suppress. Fuller v. State, Ala.Cr.App., 338 So.2d 492; Powers v. State, 49 Ala.App. 690, 275 So.2d 369; Sowells v. State, Ala.Cr. App., 339 So.2d 1090.

From the record it appears that the robbery was committed on December 8, 1978, the indictment was returned on March 1, 1979, the appellant was arraigned, and entered a plea of not guilty, on May 8, 1979, and May 16, 1979 was set as the date for trial. That on May 15, 1979 the appellant requested, and was granted, a continuance. That on March 13, 1980 a motion for a speedy trial was filed, but no notice of its filing, or request for a hearing by the court, was made until May 29,1980, when the case was called for trial. The only facts stated in the motion to dismiss for lack of a speedy trial were that the defendant was indicted on March 1, 1979, and has not been tried. The appellant offered no evidence to the trial court in support of the motion.

We quote from the record:

“THE COURT: The Court takes judicial notice to the fact that the case load— the Court was crowded and that a continuance by the State during the second criminal term was not inappropriate. And the motion to dismiss because of lack of speedy trial is denied.”

Among the factors to be considered in determining whether there has been a denial of a speedy trial are length of delay, reason for delay, defendant’s assertion of the right, and prejudice to the defendant. A delay of seventy-six days from the time request for speedy trial is made, when indictment was returned on March 1, 1979, and case was set for trial on May 16, 1979, and was continued at the request of the appellant on May 15, 1979, and the appellant filed a motion for a speedy trial on March 13,1980, and the case was set for trial sixty days before May 29,1980, the day the trial was held, when no showing was made by the appellant of any prejudice to him, and the cause was continued one time at the first setting at the request of the defendant, and continued one time at the request of the state, without objection, due to the crowded condition of the docket, the trial court did not err to the prejudice of appellant by overruling his motion for a speedy trial. Bufford v. State, Ala.Cr.App., 382 So.2d 1162, certiorari denied, Ala., 382 So.2d 1175; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

It appears from the record that the case was set for trial sixty days before May 29, 1980 the day of the trial. The defendant and his witnesses, all who were serving terms in Alabama prison system, were present in court. Appellant’s counsel was present in court with appellant on May 8, 1979 when appellant entered a plea of not guilty. That on March 13, 1980 the appellant filed a motion for a speedy trial. The trial court furnished the appellant’s counsel ample time to confer with the appellant and his witnesses before actually proceeding with the trial.

The matter of placing cases on the docket for trial, and of granting a continuance, is largely within the discretion of the trial judge, and in the absence of a showing of an abuse of discretion by the trial court, this Court should not disturb the trial court’s ruling. Childers v. State, Ala.Cr. App., 389 So.2d 193; Wilson v. State, Ala. Cr.App., 384 So.2d 1243.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Robert H. GOODWIN, Jr., alias v. STATE.
    5 Div. 528.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.

      L. Lee Sims, Dadeville, for appellant.
    Charles A. Graddick, Atty. Gen., Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of an assault with a deadly instrument upon a law enforcement officer while engaged in the active discharge of his lawful duty or duties, in violation of Code of Alabama 1975, § 13-1-42, and was sentenced to imprisonment for five years.

Evidence for the State, consisting chiefly of the testimony of Chief Deputy Sheriff Hoyt Bassell (the alleged victim), Deputy Buddy Payne and Mr. Jack McGhee (the jailer of the Tallapoosa County Jail), was to the effect that late in the afternoon of August 28, 1979, the jailer called Deputy Bassell to aid the jailer in regard to a disturbance in a cell of the jail. The three went to the cell and found it in great disarray, that the defendant, Robert Farrell, Tim Easterwood and Anthony Gray were in the cell in a state of intoxication from some wine that they had made from potato peelings. The named prisoners were told that they would have to be moved to another cell until they sobered up. The cell door was not unlocked immediately, but soon thereafter, after one or more of the officers had left and returned, the jailer unlocked the cell door and one of the officers told the prisoners to file out of the cell one at a time. Anthony Gray replied, “We are not going to come out fat boy you are going to have to come in and get us.” A fight ensued between the prisoners and the officers. The defendant was swinging a screwdriver at Deputy Bassell and at Deputy Payne. Neither was struck with the screwdriver. The disturbance was eventually quelled and the prisoners secured.

Evidence for the defendant, consisting chiefly of the testimony of the defendant and Tim Easterwood, was to the effect that they and Robert Farrell and Anthony Gray were drinking some homemade wine in the cell when Officer Bassell and Officer Payne came to the cell door, opened it and told them to come out. According to their testimony, the officers entered the cell, struck the two men a large number of blows with their fists and with clubs or night sticks. They said that defendant did not have or use a screwdriver.

The foregoing brief summary should be sufficient to show that, notwithstanding the sharp conflict in the evidence, an issue of fact was presented as to whether defendant had committed an assault upon Chief Deputy Bassell. There is no contention to the contrary, except in two particulars that we will now consider.

In one particular appellant says that the drunkenness of defendant made it impossible for him to have committed the felonious assault charged. He argues “that by the State’s own evidence it would have been impossible for the defendant to have performed a felonious intent as he was in a wild state of drunkenness according to Hoyt Bassell’s testimony.” There is no basis for a contention that the offense charged in the indictment requires a different or distinct kind of intent from that required for the commission of an assault in general. The word “intent” is not found in the indictment or in the statute upon which the indictment is based. As to the requirement of an intent, the offense is not to be likened unto offenses of which a specific intent is an element. It is not to be likened to assaults that require kinds of a specific intent such as an assault with intent to murder, maim, rob, ravish or commit the crime against nature in Code of Alabama 1975, § 13-1-46. As stated by our now Presiding Judge Harris in McKinney v. State, 50 Ala.App. 271, 278 So.2d 719, 722 (1973), cert. denied, 291 Ala. 789, 278 So.2d 724, cert. denied, 414 U.S. 1027, 94 S.Ct. 456, 38 L.Ed.2d 320 (1973):

“The constituent elements of the statute in the instant case are: (1) assault upon a police officer, (2) who was engaged in the active discharge of his lawful duties, and, (3) with a deadly instrument. To read into this statute the additional elements of scienter, murderous intent, and the use of the instrumentality in such a manner as to reflect an evil intent, is unwarranted. This statute falls in the class of malum prohibitum and not malum in se. It was enacted to protect a class of citizens engaged in ferreting out crime and in the enforcement of the criminal laws of the State and thereby for the ultimate protection of society.”

Appellant also says that the State “failed to show that Hoyt Bassell was a law enforcement officer.” If we understand this contention, the answer is:

“It is the statutory duty of the sheriff and his deputies, among other things, ‘to ferret out crime.’ Section 5, Title 54, Code; Jones v. Buckelew, 247 Ala. 475(6), 25 So.2d 23.” Roberts v. State, 258 Ala. 534, 540, 63 So.2d 584 (1953).

After the jury that tried the case had been selected and had been sworn and while counsel for the State was “stating his case” to the jury, he purportedly read to the jury the indictment in this case, but in doing so it appears that he read the indictment, a similar indictment, against Tim Easter-wood. The mistake was promptly noted. The mistake and the correction thereof are shown by the following portion of the transcript:

“I will read for you the charge that he has been indicted for, so you can understand what the case is about.
WHEREAS, MITCH GAVIN READ THE INDICTMENT TO THE JURY.
Mitch Gavin read the Indictment against Tim Easterwood to the jury.
“I made a reference to Tim Easterwood in the indictment, and really, he would be the witness we anticipate, for the defense. But, he has nothing whatsoever to do with the case of Robert Goodwin. The fact that I read his name has nothing to do with it, one way or the other.
“The evidence, as we anticipate it to come to you will be, that back on August 28, 1979; there were four people in a cell upstairs in jail. Robert Goodwin, this defendant over here, Anthony Gray, Robert Farrell, and Tim Easterwood.
“On that day we will show, there was a disturbance in the jail.... ”

After counsel for the State then proceeded with his statement at about the length of half a transcript page, the following is then shown by the transcript:

“THE COURT: Excuse me, let me see the Indictment you just read to the jury.
.“LEE SIMS [Defendant’s counsel]: Here’s the Indictment he just read, here is the correct Indictment.
“MITCH GAVIN: Judge, I made reference to Tim Easterwood, which was the wrong Indictment. I instructed the jury that was to be disregarded.
“LEE SIMS: I didn’t know he could instruct the jury what to regard and disregard, Your Honor. We move for a mistrial. This is another case, has nothing to do with this case. And the D. A. has instructed the jury, and we move for a mistrial.
“THE COURT: —Motion for mistrial is denied. Did you read the right Indictment?
“MITCH GAVIN: I read the same charge, but I will be glad to read exactly what—
“THE COURT: You members of the jury, by mistake by the inadvertence, the wrong Indictment was read to you. That was an Indictment involving a charge against another defendant. And of course, that’s not the Indictment in this case. This Indictment is against Robert H. Goodwin, so read the proper Indictment.”

The proper indictment was then read. Appellant says that the court erred “in not granting a mistrial when the Assistant District Attorney read the indictment against Tim Easterwood instead of Robert Goodwin.” He further says that “This was an attempt by the District Attorney to impeach the testimony of Tim Easterwood by showing that he was indicted in a similar case.” If we thought it was, we would be more inclined than we are to believe that the court should have then granted defendant’s motion for a mistrial. It is true that Tim Easterwood testified on behalf of defendant, and the possibility of some injury to defendant resulting from the reading of the indictment against Easterwood is not to be ignored, but the ruling of the court is to be considered as of the time the ruling was made. It is to be noted that at that time, something was said about Tim Easterwood as a witness, but the motion for a mistrial was not predicated upon any ground to the effect that the testimony of Tim Easter-wood as a witness for defendant would be impaired by information received by the jury in the manner stated that Tim Easter-wood had been indicted. We do not know what was in the mind of defendant’s counsel at the time, but it would seem that if he then had it in his mind that the reading of the indictment against Tim Easterwood would have impaired the usefulness of Easterwood as a witness for defendant, counsel would have brought this to the attention of the trial court at the time. There was error on the part of counsel for the State, but there was no error on the part of the court in overruling defendant’s motion for a mistrial. It was made clear to the jury that an inadvertent mistake had been made by counsel for the State and that the information obtained thereby should be disregarded. We find neither error on the part of the court nor substantial injury to defendant.

While Mr. Bassell was testifying on direct examination, the following occurred:

“Q. Having observed many, many times persons in an intoxicated condition over the past four years as Chief Deputy for Tallapoosa County, in your judgment, do you feel these four people were intoxicated?
“LEE SIMS — And we object—
“THE COURT: Sustained.
“LEE SIMS — And we move to exclude that.
“THE COURT — It’s excluded. Just tell us what they were doing.
“A. Hollering and screaming, they had torn televisions and radios up. They had thrown mattresses, books and everything in the floor. They had totally destroyed the cell. They were glassy eyed.
“THE COURT — Was their speech coherent?
“A. Just hollering and screaming. In my opinion—
“LEE SIMS — I object to his opinion.
“A. —They was in a wild stage of drunkenness.
“LEE SIMS — We move to exclude that. Move for a mistrial.
“THE COURT — Motion denied.”

Appellant says:

“The Court erred in not excluding the witness Bassell’s remarks or opinion as to whether or not the defendant was intoxicated.”

The reference is expressly made to the portion of the transcript quoted above. It is to be noted therefrom that two motions were made in rapid succession, one a motion to exclude and the other a motion for a mistrial. At the present time there is no contention that the court should have granted a mistrial. Neither the witness nor counsel for defendant gave the court an adequate opportunity to make rulings as it should. The matter at the time was in the nature of a verbal melee, which on the whole indicates, as appellant now urges, that at the first part of the matter quoted the court was inclined to sustain objection to the testimony of the witness to his opinion and to exclude any such testimony. We cannot go beyond the record and state with reasonable certainty that the court overruled the motion by defendant’s counsel to exclude the testimony of the witness that “they was in a wild state of drunkenness.” As to the matter now under consideration, we are unable to find that the trial court committed error prejudicial to defendant.

We now quote another insistence on a reversal as found in appellant’s brief:

“The Court erred in ordering the defense not to argue about a night stick to the jury that had been marked as an exhibit and offered in evidence but not allowed in evidence by the Court. The following occurred in the courtroom:
“MR. SIMS: Judge, we are going to object to them taking that (night stick) out of here, it has been marked, it is an exhibit.
“MR. GAVIN: It’s not in evidence.
“MR. SIMS: It don’t make no difference. It’s been marked as an exhibit.
“THE COURT: Give it to me.
“MR. SIMS: We ask that it be placed here.
“THE COURT: It has not been admitted into evidence, therefore, it should not be exhibited to the jury. And, I’ll keep it here as part of the record.
“MR. SIMS: Judge, call the Court's attention to the case Judge - had that went up, where the shirt was marked as evidence, identified, and Judge _would not let him argue to the jury, and the case was reversed. Once an exhibit is labeled and marked, it’s part of the case that can be argued.
“THE COURT: Well, it’s not admitted into evidence, and you can’t argue things that are not in evidence.
“MR. SIMS: That’s not what the Supreme Court said Judge.
“THE COURT: Well, either you’re wrong or the Supreme Court is wrong, I’ll go up on that question. Go ahead.”

Appellant then cites Hope v. State, Ala.Cr. App., 378 So.2d 745 (1979), cert. denied, 378 So.2d 747, as the case to which he made reference on the trial. It does not support appellant’s contention, for there the particular exhibit, a bloody shirt, had been exhibited to the jury and had been marked as an exhibit at the instance of the prosecution. The transcript in the instant case does not affirmatively show that the “night stick” used by one of the officers in attempting to suppress the disturbance was ever displayed to the jury or marked for identification as an exhibit, but it is reasonably clear it was not done so by the State. Furthermore, there is nothing in the record to indicate that it had been utilized by the State in any way to advance or promote its case, as was done in Hope v. State, to which the State had obtained a benefit to the same extent as if the exhibit had been introduced and received in evidence. In Kabase v. State, 31 Ala.App. 77, 12 So.2d 758 (1943), expressly followed by Judge Tyson in the Hope case, the State had brought forward and exhibited to the jury the particular item of evidence involved (a pair of shoes) and had been allowed to remove them thereafter from the courtroom and thereby deprive defendant’s counsel of the right to exhibit them to the jury in the course of his argument. The wise principle set forth in Hope and Kabase is to prevent a party who has demonstrably used an exhibit in his support from forestalling a corresponding use thereof by his adversary; this he could well do if the adversary were not allowed to use it unless it had been formally introduced and received in evidence in the more conventional way.

We have discussed all but one of the issues raised by appellant and have concluded that none of those discussed justifies a determination that reversible error has been committed. We now address the only other issue raised by appellant.

The jury that tried this case was selected by process of striking from the list of jurors that on the same day had composed the list of jurors from which a jury had been selected by the same process in the same case against this defendant-appellant. After the first jury had been selected and before it had been sworn, the court declared a mistrial on motion of defendant. Defendant’s counsel objected to the use of the same list of jurors for the selection of another jury for the trial. In arguing in support of this objection, defendant’s counsel moved for a continuance, and the court denied the motion.

It appears that there is now presented the infrequent, if not unique, question whether a party may be required, against his objection, to select a jury from exactly the same list of jurors from which a jury had just been selected to try the same case. It is to be noted that it could hardly conceivably happen after a long time between the two selective proceedings. Although we are of the view that there would hardly ever be circumstances that would justify more than one definite answer to the question presented, we narrate some of the details of what occurred as to the selection of the jury that tried the case, and as to the background thereof, as are disclosed by the transcript.

The transcript does not show any of the proceedings relative to the selection of the first jury, but commences with the statement that “This case came on to be tried before a struck jury of twelve, on the 21st day of May, 1980 .... ” At an in camera hearing, counsel for defendant moved for a mistrial and made it known to the court that Mr. Wayne Chase the chief investigator for the office of the district attorney had “struck the jury for the State of Alabama,” that Mr. Chase was not licensed to practice law and that the jury was “not qualified as to Mr. Chase.” The transcript then continues:

“THE COURT: Well, you want to go out and qualify them?
“LEE SIMS: It’s too late, the jury is struck.
“THE COURT: We will see, if any of them are disqualified on account of that, we will declare a mistrial, and start all over again.
“LEE SIMS — Well, I made a motion and I would like the Court to rule on it.
“THE COURT — Let’s let the record further show, that the jury was struck during recess, and practically all of the jurors were outside of the jury room. Also, the jurors have not been notified as of this time as to who have been struck, and who have not been struck. They do not know who is going to be on this jury, and I will go out and qualify the jury further on Wayne Chase. In the event any juror who has been selected to serve on this jury, is, for some reason or another disqualified, because of their connection or relationship with Wayne Chase, then we will take whatever steps are necessary to protect the rights of the defendant. Therefore, your motion is partially granted and partially overruled.
“WHEREAS, THE DEFENDANT AND HIS COUNSEL AND THE JUDGE RETURNED TO THE COURTROOM. THE FOLLOWING OCCURRED:
“THE COURT — Just got one or two more questions. Any of you related by blood or marriage to Wayne Chase, who is the Chief Investigator for the District Attorney’s Office? Any of you related by blood or marriage to Wayne Chase? Let the record reflect no one answered. De-, fense have any further questions?
“LEE SIMS — Any of you know Wayne Chase?
“SEVERAL JURORS SAID THEY KNEW HIM IN THAT HE WAS ONCE PRINCIPAL AND FOOTBALL COACH AT DADEVILLE HIGH SCHOOL AND AT TALLAPOOSA ACADEMY.' BOTH SCHOOLS LOCATED IN DADEVILLE ALABAMA.
“THE COURT — The fact that you people knew him in that he either taught you in school, was your football coach or taught your children, would that in any way bias or prejudice you in this case?
“ALL ANSWERED NO.
“THE COURT — Could you render a true, fair, and impartial verdict based solely on the evidence, in spite of the fact that you all know Mr. Chase so well?
“ALL ANSWERED NO.
“LEE SIMS — Judge, I would like to make another motion in Chambers.
“MOTION HELD IN THE JUDGE’S CHAMBERS, OUT OF THE PRESENCE AND HEARING OF THE JURY. DEFENDANT PRESENT WITH HIS COUNSEL.
“LEE SIMS — Judge, let the record reflect that number 22 has been selected to serve on this jury, and number 12, who will also serve. Number 22, David Col-lum stated that he (Wayne Chase) was his football coach and his high school principal. He had a great deal of respect for him, and is a friend of his. Gary Willis stated that Wayne Chase was his high school principal, and he had a great deal of respect for him and was a friend of his. While both of these jurors said that would not prejudice their verdict, these jurors would not be sitting on this case, had the Court qualified the jury as to Wayne Chase, before the jury was struck. Therefore, we move for a mistrial. We would feel that it would be error to put us to trial without those questions having been asked, and us not having the opportunity to do anything about it.
“THE COURT — I grant your motion for a mistrial, and we will restrike the jury. Now, if you have an objection to that, get that in the record.
“LEE SIMS — We object, let the record show, we have just struck a jury for the trial of Robert Goodwin, through no fault of the defendant, the Assistant District Attorney Mitch Gavin left the State Investigator at the table to strike the jury. Now the Court has instructed the defense, that he must go out there right now, without any time lapse, without anything, and strike another jury in the case of the State of Alabama versus Robert Goodwin. We object to that because the State now knows every one of our strikes.
“THE COURT — And you know every one of theirs.
“LEE SIMS — And we feel it is unjust and unfair, to put the defendant to trial, after the State knows everyone of our strikes with this jury that is currently sitting here. Therefore, we move this case to be continued until the next time.
“THE COURT — Can’t have your cake and eat it too, motion is denied.
“LEE SIMS — We reserve an exception to the Court’s ruling.
“WHEREAS, EVERYONE RETURNED TO THE COURTROOM:
“THE COURT — Ladies and Gentlemen, I am going to ask you these qualifying questions again.”

Thereupon, the court asked the group of jurors about a transcript page of questions, to which no counsel for either party added any questions. The transcript is not clear as to where one of the members of the group was at the time the questions were asked by the court, but it appears therefrom that no point was insisted upon at the time, and no point is now made, as to that detail, as shown by the following portion of the transcript:

“THE COURT — All right, defense has no questions, strike the jury.
“LEE SIMS — We move for a mistrial because Mrs. Inez Farrow is not here, who is one of the jurors, she was not qualified as to this, and we move for a mistrial.
“THE COURT — Go down and get Mrs. Farrow.
“LEE SIMS — We withdraw our motion.
“THE COURT — Tell the Sheriff’s wife to stay down there. The jury has qualified, State has the first strike.”

According to the transcript and the apparent views of counsel for both parties, the jury that tried the case was then selected as provided by Code of Alabama 1975, § 12-16-100, which states in pertinent part:

“... [T]he court shall require two lists of all the regular jurors empanelled for the week who are competent to try the defendant to be made, and the district attorney shall be required first to strike from the list the name of one juror, and the defendant shall strike two, and they shall continue to strike all names alternately until only 12 jurors remain on the list and these 12 jurors thus selected shall be the jury charged with the trial of the case.”

No authority cited by either party furnishes an answer to the question now before us.

Code of Alabama 1975, § 12-16-100, is a replica of Code of 1940, T. 30, § 60, which repeats Code 1923, § 8641, which is in the language of the pertinent part of Section 32 of Acts 1919, No. 715, p. 1039. Except as modified in a few statutes applicable only to some counties in Alabama as to the size of the panel from which the jury is selected or as to the number of strikes afforded each party, there has been no change anywhere in Alabama in the statutory process since its enactment in 1919. A vital feature of the procedure provided by this statute, as well as by Code § 12-16-140 in civil cases, is that the striking be done “alternately by the parties.” By adherence to that method, neither party needs to reveal to the other the identity of any prospective juror that he is expected or plans to strike until he actually strikes the juror. The right not to be required to reveal it beforehand is inherent in the alternate striking feature of the statute. The value of the right is obvious; a denial of the fight, even as to the nondisclosure of the identity of a single juror to be struck could result in the selection of a different jury from the jury that would otherwise be selected and a different verdict from the verdict that would otherwise be returned.

Although the problem presented here is not fraught with the complexities of those found in Murray v. State, 210 Ala. 603, 98 So. 871 (1924), we find support therein for the position to which, even without it, we are inclined. Murray was a capital case, and in accordance with the law, including Act 715, General Acts 1919, p. 1039, a jury was selected by the process of striking until twelve were left, who were then “duly em-panelled and sworn as jurors to try” the case. There had been some mistakes in composing the persons or list of persons from whom the jury was to have been selected. One of the jurors left on the jury selected had been held disqualified by the court because he stated on his voir dire examination that he was not in favor of capital punishment. The other eleven were those held qualified and competent by the court. On motion of the State, the court ordered that the jury selected be discharged as the jury to try the case, that a new list of jurors be prepared from the then available jurors, including those who had been selected and those who had been struck, and that the parties strike from such list. To this the defendant objected and persisted in his objections. The court overruled his objections, and a new jury was selected as ordered by the court, which consisted of some, but not all of the jurors that had been previously selected for the case. The jury found defendant guilty of murder in the second degree and fixed his punishment at 25 years in the penitentiary. The court held that two errors were committed by the court, one in discharging the first jury that had been selected and the other in overruling defendant’s objection “to selecting another jury” from the panel then consisting largely of jurors that were on the list from which the first jury was selected. In the language of Justice Miller at 210 Ala. 606, 98 So. 871, the court said:

“The Court erred when it sustained the motion of the state to discharge this jury over objection and without consent of the defendant. The motion came too late. Authorities, supra. These persons thus selected became the jury from this venire for the trial of the defendant. After they were thus selected, impaneled, and sworn, the other persons on the special venire were automatically discharged as special jurors in this case, and the other persons on the regular venire were automatically relieved of jury duty in this case. Their duties in this case had ended. For other obvious reasons they should not be placed on the state and defendant again to select the jury. Each had shown their choice of the men on the list to each other for the trial of the defendant. Section 32, Act 1919, Gen.Acts 1919, p. 1040, and authorities supra.
“The court, after granting the motion of the solicitor to vacate, set aside, and discharge this jury, should have either continued the case or set another day of the term of court for the trial of the defendant, and ordered another and different venire facias for his trial, in accordance with the statute. The objections of the defendant to selecting another jury from this same venire facias should have been sustained by the court. This was reversible error. Section 32 of the Act in Gen. Acts 1919, p. 1040, and authorities supra.

Murray v. State, supra, was distinguished in Alabama Great Southern R. Co. v. Bolton, 242 Ala. 562, 565, 7 So.2d 296 (1942) as follows:

“So far as the bill of exceptions shows, the only effect the ruling of the court had in respect to requiring the parties to res-trike the jury was to substitute J. Tullie Jones drawn and subsequently summoned for the person who was not drawn but to whom the deputy delivered the first summons issued to said J. Tullie Jones. The jury as selected was from the regular panel drawn, summoned and qualified to serve for the week. The ruling in the case of Murray v. State, 210 Ala. 603, 98 So. 871, was in respect to a special venire for the case and that authority is not in point.”

Although Murray v. State was not in point in Alabama Great Southern R. Co. v. Bolton, we are convinced that it is in point in this case and that the trial court was in error in requiring the defendant to proceed to select a jury from the panel from which the previous jury had been selected. We do not say that there could never be an occasion in which an objecting party should be required to strike twice from the same panel in the same case, but we are convinced that at least generally he should not be required to do so and that there is nothing in the case before us to constitute a valid exception to that general rule. As to this, we see little, if any, discretion vested in the trial court, such as its discretion in the matter of granting a continuance. There is more involved here than whether a motion to continue should have been granted. It is apparent, if not conclusive, that, without the panel from which the jury was selected for the trial of the case, a jury would not have been available for that purpose and for that reason the trial would necessarily have been postponed.

For the error stated, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur.

      . There is no contention that “no” correctly and fully reflects the answers of the jurors.


author: BOOKOUT, Judge.

text:
    Dave Toles ROBERTSON v. STATE.
    6 Div. 26.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    John H. Lair, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOOKOUT, Judge.

Reversed and remanded on the authority of Beck v. State, Ala., 396 So.2d 645, 15 ABR 91 (1980).

REVERSED AND REMANDED.

All the Judges concur.


text:
    Timothy Franklin BARBEE v. STATE.
    6 Div. 458.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.

      Michael L. Tucker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Deborah H. Biggers, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for theft of property in the first degree. Alabama Code 1975, Section 13A-8-3. Sentence was ten years’ imprisonment. Six issues are presented on appeal.

I

Although the defendant cites as error the excusal of Mrs. Mullins from the jury ve-nire, he does not argue this point in brief.

The trial court granted the State’s challenge for cause and excused Mrs. Mullins from jury service. In response to a question by defense counsel during his voir dire examination of the jury venire, Mrs. Mullins indicated that she did not wish to sit on the jury because she would “have to sit in judgment of a fellow human being.” Under questioning by the State and the trial court, Mrs. Mullins stated that she wouldn’t want to sit on any criminal jury and that she might be able to decide guilt or innocence, but she “wouldn’t want to be any part of sending anybody to jail.” Even when informed that the judge did the sentencing, Mrs. Mullins stated that she would still feel like she would be a part of it and could not participate in any criminal case with a “good conscience”. Mrs. Mullins also stated: “I might be able to decide in my mind whether he was guilty or innocent. I don’t feel qualified.”

Defense counsel objected to the striking of Mrs. Mullins on the ground that “the proper predicate” had not been established.

In Tidmore v. City of Birmingham, 356 So.2d 231, 234 (Ala.Cr.App.), cert. denied, 356 So.2d 234 (Ala.1978), this Court set out the test for determining whether a venireman should be disqualified because of personal opinions or conscientious scruples. Generally, a juror is incompetent who has such personal opinions with respect to the subject matter of the suit, or conscientious scruples, on any subject, as would influence his verdict. The test to be applied is can the juror eliminate the influence of his scruples and render a verdict according to the evidence. Ordinarily a juror is not disqualified where it appears that he is willing to follow the instructions of law given by the trial court and is able to decide the case impartially according to the evidence notwithstanding his scruples. The determination of this question is based on the juror’s answers and demeanor and is within the sound discretion of the trial judge. Tid-more. A juror is incompetent whose answers show that he would follow his own views regardless of the instructions of the court. Watwood v. State, 389 So.2d 549, 550 (Ala.Cr.App.), cert. denied, 389 So.2d 552 (Ala.1980).

After having the law explained to her, that she was not responsible for sentencing the accused, Mrs. Mullins stated that she could not participate in a criminal case with a “good conscience”. Upon the responses of Mrs. Mullins, the trial judge properly determined that the State’s challenge for cause was due to be granted and that she was incompetent to serve as a juror. The decision of a trial court to disqualify a juror on a challenge for cause is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Motes v. State, 356 So.2d 712 (Ala.Cr.App.), cert. denied, Ex parte Motes, 356 So.2d 720 (Ala.1977); Baxley v. State, 18 Ala.App. 277, 90 So. 434, cert. denied, Ex parte Baxley, 206 Ala. 698, 90 So. 925 (1921). We find no clear and erroneous abuse of discretion in this case. The fact that another judge or court would not have reached the same legal conclusion as the trial judge in this particular case does not necessarily mean or establish an abuse of discretion.

II

The defendant argues that the evidence the State introduced regarding venue is inadequate to prove that the crime of theft in the first degree occurred in Jefferson County-

The defendant was employed by Charlie Strong who managed Earl Schieb Auto Paints in Birmingham, which is in Jefferson County. On January 23, 1980, Mr. Strong sent the defendant to Ensley “to do an estimate on a car.” This Court takes judicial knowledge and notice that Ensley is in Jefferson County. Hall v. State, 213 Ala. 325, 104 So. 826 (1925); Howard v. State, 172 Ala. 402, 55 So. 255 (1911); May v. State, 22 Ala.App. 239, 114 So. 423 (1927). He gave the defendant the keys to the Chevrolet which Mr. Strong owned and told him to be back in the shop in less than 45 minutes. Mr. Strong never again saw the defendant with his automobile. Mr. Strong learned of the whereabouts of his Chevrolet when he received a telephone call from the Sheriff of Bibb County.

On January 31, 1980, the Bibb County Sheriff’s Office arrested the defendant on an unrelated charge. They checked the license tag number of the Chevrolet the defendant admitted driving and discovered that the car had been reported stolen out of Birmingham.

There is no merit to the defendant’s contention that there is no evidence that the car was taken by the defendant from the victim in Jefferson County or that the State failed to prove venue.

The issue of whether the defendant had the “intent to deprive” Mr. Strong of his car was for the jury. From the evidence, the jury reasonably concluded that the defendant intended “(t)o withhold property or cause it to be withheld from a person permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to him.” Alabama Code 1975, Section 13A-8-1(2), defining the term “deprive”.

The defendant obtained or exerted “unauthorized control” over the automobile when he used the car for a purpose other than that for which the car had been entrusted to his care with the requisite intent. “When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county.” Alabama Code 1975, Section 15-2-6. See Draughon v. State, 29 Ala.App. 385, 196 So. 290 (1940), where it was held that venue was a question for the jury where, in a prosecution for embezzlement, the accused received money in one county as an agent and failed to deliver the money to his principal whose business place was in another county. Where a crime is begun in one county and consummated in another, venue is in either county. Manson v. State, 349 So.2d 67 (Ala. Cr.App.), cert. denied, 349 So.2d 86 (Ala. 1977).

Ill

The defendant maintains that the trial judge abused his discretion in interrogating two witnesses.

The first instance of alleged error occurred when Mr. Strong was on the witness stand. From the record:

“Q. (ASSISTANT DISTRICT ATTORNEY): Was this defendant included in they?
“A. That’s who his father was talking about.
“MR. TUCKER (Defense Counsel): Judge, I object to whether the defendant was included in they, or whether that statement was ever made.
“THE COURT: Don’t say they. Did the defendant ever state the defendant in talking about they?
“THE WITNESS: The father knew the defendant had the car.
“MR. TUCKER: See, I object.
“THE COURT: I don’t care what the father knew. I’m sure you don’t know what the father knew unless he told you.
“THE WITNESS: He did.
“THE COURT: Well, that’s what we’re asking. What did he say about the defendant?
“THE WITNESS: The defendant said that Timothy had the car. He had been seen. He had even driven it back to his house once or twice and then drove off.
“MR. TUCKER: Your Honor, that’s clearly hearsay evidence. I object and move to exclude.
“THE COURT: He’s laying a predicate just exactly like you were..
“MR. TUCKER: Your Honor, I asked whether the defendant had made this statement or this statement in substance.”

The second instance of alleged error occurred after both sides had completed their examination of the mother of the defendant.

“THE COURT: I’ve got some (questions). After that day, did you talk to him while he was down in Centreville at your daughter’s house?
“A. No, sir, I didn’t go to Centreville.
“THE COURT: I didn’t say that.
“THE COURT: Did you talk to him on the phone or just talk to him while he was in Centreville and you up here?
“THE WITNESS: When he was in Centreville jail?
“THE COURT: At any time, from the time the car disappeared to the time you heard he was in jail, did you talk to him on the telephone?
“THE WITNESS: I talked to Buddy Vaughn.
“MR. TUCKER: Judge, I object. I don’t know what she’s going to say.
“THE WITNESS: I don’t know what she’s going to say either. That’s exactly why I asked the question.
“MR. TUCKER: We object.
“THE COURT: Who is Buddy Vaughn?
“THE WITNESS: Buddy Vaughn is the Sheriff of Bibb County, I reckon.
“THE COURT: Did your son ever call you from Centreville and you talk to him?
“THE WITNESS: No, sir, I don’t think so . I worked every day.
“THE COURT: Did you ever tell him that Charlie Strong has got the police looking for him?
“THE WITNESS: No, sir. Timmy called me at Crumley’s Barbeque.
“THE COURT: Timmy. That’s one of your sons?
“THE WITNESS: That’s Tim over there.
“THE COURT: Did he ever say to you I’m going to stay down here in Centreville, by the telephone, before he was in jail?
“THE WITNESS: No, sir, not that I know of.
“THE COURT: That’s all.
“MR. TUCKER: No further questions.”

The testimony of the defendant’s mother that the defendant never telephoned her from Centreville contradicted a statement made by the defendant to a Bibb County Deputy Sheriff and already in evidence that he did call his mother from Centreville.

Unless the objection, “Judge, I object, I don’t know what she’s going to say”, can be considered as preserving the issue here presented, initially it must be noted that defense counsel never objected to the court’s questioning of the witnesses or to the questions asked by the court'. All of his objections were to the answers of the witnesses and were made after the witnesses had answered the judge’s questions. There was no specific objection to the fact that the trial judge was asking questions. Without objection, nothing is presented for review. Garner v. State, 364 So.2d 406 (Ala. Cr.App.), cert. denied, 364 So.2d 411 (Ala. 1978).

What was stated in Brandes v. State, 17 Ala.App. 390, 391, 85 So. 824 (1920), is applicable here.

“The unquestioned province of the court—in fact, the solemn and sacred duty of a trial judge—is the development and establishment of the truth, and in this connection it is always permissible for the court, and if it appears necessary for him to do so it is his duty, to propound to witnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, whether beneficial to the one party or the other. Beal v. State, 138 Ala. 94, 35 So. 58. In fact, it is a sacred duty of a judge, both in civil and criminal cases, to give strict attention to the evidence, and to all facts and incidents attendant upon the trial, to propound questions to witnesses if in his judgment he deems it necessary, and to supervise and control the proceedings before him, with a view that justice may not miscarry.”

See also Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974); Rice v. Hill, 278 Ala. 342, 178 So.2d 168 (1965); Garner, supra; Franks v. State, 45 Ala.App. 88, 224 So.2d 924 (1968).

Even though the judge’s questions did elicit testimony from a defense witness (the defendant’s mother) which conflicted with a portion of a statement the defendant had given the Sheriff’s Department, we find no abuse of discretion in the trial judge questioning the witnesses. See Burks v. State, 353 So.2d 539 (Ala.Cr.App.1977).

IV

Bibb County Deputy Sheriff Max Vaughn testified that he “ran a check” on the defendant to see if he was wanted anywhere and discovered that the defendant “had an outstanding warrant.” The trial court sustained defense counsel’s objection, granted his motion to exclude and then, on his own motion, instructed the jury to “disregard that particular warrant.” There was no request for additional instructions.

The defendant now contends that the information blurted out by the witness was ineradicable. We disagree and find that the error was cured by the actions of the trial court.

There was no request for a mistrial. The defendant has no adverse ruling on this issue simply because the trial court performed every curative measure requested. Error in the admission of evidence of the commission of other offenses by the accused is cured where the trial court sustains the objection, excludes the objectionable testimony and instructs the jury not to consider it. Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959) (in homicide prosecution, evidence that defendant stole witness’s automobile in fleeing scene); Franklin v. State, 357 So.2d 364 (Ala.Cr.App.), cert. denied, Ex parte Franklin, 357 So.2d 308 (1978) (in burglary prosecution, evidence that defendant was a “known” burglar was eradicable). While every case must be considered on its own particular facts, there is a legion of other cases and examples supporting this proposition. We find that the error was cured in this instance.

V

In closing argument, the prosecutor stated: “The defendant reminds me of an octopus.” The trial court overruled defense counsel’s objection “to characterizing the defendant.”

The digest abounds with instances where the prosecutor has commented on the defendant’s character or appearance. Hall v. United States, 419 F.2d 582 (5th Cir. 1969) (“hoodlum”); Wright v. State, 279 Ala. 543, 188 So.2d 272 (1966) (“Judas”); Rogers v. State, 275 Ala. 588, 157 So.2d 13 (1963) (“a slick and slimy crow”); Watson v. State, 266 Ala. 41, 93 So.2d 750 (1957) (“a maniac”); Weaver v. State, 142 Ala. 33, 39 So. 341 (1905) (“beast”); Liner v. State, 350 So.2d 760 (Ala.Cr.App.1977) (“a rattlesnake” and “a viper”); Jones v. State, 348 So.2d 1116 (Ala.Cr.App.), cert. denied, Ex parte Jones, 348 So.2d 1120 (Ala.1977) (“a purveyor of drugs”); Kirkland v. State, 340 So.2d 1139 (Ala.Cr.App.), cert. denied, Ex parte Kirkland, 340 So.2d 1140 (Ala.1976) (“slippery”); Jeter v. State, 339 So.2d 91 (Ala.Cr.App.), cert. denied, 339 So.2d 95 (Ala.1976), cert. denied, 430 U.S. 973, 97 S.Ct. 1661, 52 L.Ed.2d 366 (1977) (“a Aim flam artist”); Cassady v. State, 51 Ala.App. 544, 545, 287 So.2d 254 (1973) (“a demon”); Reed v. State, 32 Ala.App. 338, 27 So.2d 22, cert. denied, 248 Ala. 196, 27 So.2d 25 (1946) (“lied like a dog running on hot sand”); Williams v. State, 22 Ala.App. 489, 117 So. 281 (1928) (“a chicken thief”); Ferguson v. State, 21 Ala.App. 519, 109 So. 764 (1926) (“a smart Aleck); Quinn v. State, 21 Ala. App. 459, 109 So. 368 (1926) (“a wild cat-ter”); Thomas v. State, 19 Ala.App. 187, 96 So. 182, cert. denied, Ex parte Thomas, 209 Ala. 289, 96 So. 184 (1923) (“a moral pervert”); Beard v. State, 19 Ala.App. 102, 95 So. 333 (1923) (“a seducer”).

The controlling principles are found in 23A C.J.S. Criminal Law, Section 1102 (1961).

“Comments by the prosecuting attorney which refer to, and make unfavorable inferences from, the conduct of accused in the course of the transaction for which he is on trial, or his conduct at any other time or place, or which refer to his character as shown by such conduct, or to his background, breeding, or associations, or to other details of his personal history or characteristics are proper, where the purported facts referred to by counsel are supported by competent evidence in the case, and where the inferences and deductions sought to be made from such facts are within the bounds of proper argument. On the other hand, remarks or argument of the prosecuting attorney concerning the character or conduct of accused, which is not supported by the record or which exceeds the limits of fair argument or inference is improper.
“In a proper case, the prosecuting attorney may characterize accused or his conduct in language which, although it consists of invective or opprobrious terms, accords with the evidence in the case, and, where the evidence warrants the belief that accused is guilty, the prosecutor may employ terms appropriate to the nature or degree of turpitude involved in the crime charged; but characterizations not justified by the evidence or the charge which the evidence tends to prove, and hence merely abusive, or which are couched in intemperate and inflammatory language are, ... improper.”

See also 6 Am.Jur. Trials, Prosecution Summations 873, 917 (1967).

“The prosecutor is at liberty to strike hard blows, but he must not strike foul ones; that is, while comment may be made about the defendant or his witnesses, it must be based on the testimony that the defendant or his witnesses gave from the stand or on rational conclusions concerning the defendant or witness that flow from the evidence in the case.”

We do not think that the mere characterization of the defendant as an “octopus” is especially likely to stick in the minds of the jurors and influence their deliberations. “The prosecutor, as does defense counsel, has a right to present his impressions from the evidence.” McQueen v. State, 355 So.2d 407, 411 (Ala.Cr.App.1978).

The connection in which the prosecutor characterized the defendant as an octopus does not appear. “It cannot be said such remarks would be out of bounds in any and every connection.” Brothers v. State, 236 Ala. 448, 453, 183 So. 433 (1938) (“We ought to tear the electric chair down and build a monument to John Dillinger and ‘Baby Face’ Nelson.”) The trial court was in position to determine whether this line of argument was within the rule that counsel may draw any inference which the facts tend to support. On the record before us, we cannot, with any degree of reasonable certainty, determine the context in which the remark was made. For this reason, the presumption in favor of the ruling of the trial judge must prevail. Huffman v. State, 360 So.2d 1038 (Ala.Cr.App.), affirmed, 360 So.2d 1045 (Ala.1977).

VI

The defendant’s contention that the State failed to prove that he was the same Timothy Franklin Barbee who had a prior conviction for grand larceny is without merit and is not supported by the record. Our review convinces us that the trial court properly sentenced the defendant as an habitual offender in accordance with Alabama Code 1975, Section 13A-5-10.

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.

      . Section 13A-8-2(l) defines the crime of theft of property to include one who “(k)nowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property ...” Section 13A-8-3(b) states: The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree. The indictment charged that the defendant “did knowingly obtain or exert unauthorized control over a motor vehicle ... in violation of Section 13A-8-3 of the Alabama Criminal Code, ...” No objection was made in the circuit court that the indictment omitted the phrase “with intent to deprive the owner of his property.” This issue is not cited as error on appeal.

      . Alabama Code 1975, Section 13A-8-l(7):
      “Obtains or exerts control or obtains or exerts unauthorized control over property includes but is not necessarily limited to the taking, carrying away or the sale, conveyance or transfer of title to, or interest in, or possession of, property, and includes but is not necessarily limited to conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, larceny by conversion, embezzlement, extortion or obtaining property by false pretenses.”

      . The complete instructions given by the trial judge were: “It is excluded. Ladies and gentlemen, disregard that particular warrant. It has nothing to do with this case at this time, that I know of.”