author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Charles Raymond WHITEHEAD v. STATE.
    4 Div. 851.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Rehearing Denied Aug. 4, 1981.
    Certiorari Quashed, Jan. 29,1982 Alabama Supreme Court 80-800.

      Danny L. Dupree, Columbus, Ga., for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of the unlawful possession of pentobarbital, a controlled substance, in violation of Code of Alabama 1975, § 20-2 — 70. The court sentenced him to imprisonment for five years.

Appellant was not represented by an attorney on the trial. The only insistence on a reversal by his attorney on appeal pertains to the action of the court in causing defendant “to stand trial for a felony offense without benefit of legal counsel” and in denying defendant’s request for “a continuance in his case in order to obtain legal counsel, prepare for trial and produce witnesses in his behalf.”

The incident upon which the prosecution was based occurred on January 20, 1980, in a motel room in Phenix City. The indictment was returned on May 8, arraignment was conducted on May 26, at which defendant, accompanied by an attorney retained by him, pleaded not guilty, and the trial was commenced on June 18, 1980. . The transcript of the trial proceedings commences as follows:

“THE COURT: Mr. Whitehead, why were you late coming to court?
“THE DEFENDANT: Got held up by a train.
“THE COURT: Court starts promptly at one o’clock. Your case has been called for trial. Do you have an attorney to represent you? Let’s come over here to the side.
“(The following proceedings were had at the side bar outside the hearing of the jury panel from which the jury will be selected to try this cause, to-wit:)
“THE COURT: Your question was, have I talked to Mr. Dupree? Mr. Dupree and I talked right before dinner. He informed me that you had been to see him. I informed him that the case would be called at one o’clock. Whether you have retained him or not, I have no way of knowing. It’s my impression at the time that you have not retained him.
“It’s my understanding that heretofore Judge Miller was present at arraignment. Mr. Sam Loftin appeared with you at that time.
“THE DEFENDANT: That’s right.
“THE COURT: Subsequent to that but before the trial began — or at the first day the trial began, about two weeks ago, he informed the court that he would have a conflict in representing you, and Judge Miller indicated at that time that he would excuse him from representing you in your cases. It’s my understanding Mr. Loftin informed the court that he had not talked with you about this case and he had not been paid any money by you.
“THE DEFENDANT: That’s right.
“THE COURT: It’s my understanding that you have known about this case since February.
“THE DEFENDANT: January.
“THE COURT: Since January? And you have discussed with an attorney this case before you went to see Mr. Loftin, any attorney?
“THE DEFENDANT: Yes, sir.
“THE COURT: When was that?
“THE DEFENDANT: Well, I discussed it with Mr. Faulk up until the morning that Mr. Loftin represented me, and I—
“THE COURT: I have talked with Judge Miller as to your status of whether or not you are indigent. He informs me that you own and operate a business establishment in Columbus. Is that right?
“THE DEFENDANT: That’s right.
“THE COURT: What is that?
“THE WITNESS: Ray Sports Center.
“THE COURT: And you own the building?
“THE DEFENDANT: No, sir, I—
“THE COURT: You rent it?
“THE DEFENDANT: I own the equipment and rent the building.
“THE COURT: All right. When was the last contact you had with Mr. Loftin?
“THE DEFENDANT: About a week ago.
“THE COURT: And what was said at that time?
“THE DEFENDANT: Well, he wanted to charge me $1,000.00 to represent me, and I didn’t have the money, and I told him that. But since then I have been to Mr. Braswell and he took the retainer from me, come up here and talked to somebody and come back and give me my retainer back. And I also talked to Mr. Floyd—
“THE COURT: Charles Floyd?
“THE DEFENDANT: And then Mr. Du-pree.
“THE COURT: What was your income last year for your tax return?
“THE DEFENDANT: I could afford a reasonable lawyer.
“THE COURT: Have you discussed this matter with any lawyers in Columbus?
“THE DEFENDANT: Yes, sir.
“THE COURT: Who is that?
“THE DEFENDANT: Mr. Martin and Mr. Dupree, sir.
“THE COURT: Is that Frank Martin?
“THE DEFENDANT: Yes, sir.
“THE COURT: When did you discuss it with him first?
“THE DEFENDANT: When Mr. Bras-well brought me my retainer back.
“THE COURT: When was that?
“THE DEFENDANT: That was the.day I asked for the continuance.
“THE COURT: That was before Judge Miller, was it not?
“THE DEFENDANT: Yes. He denied it that day.
“THE COURT: All right.
“(The Judge returned to the bench and the proceedings continued outside the presence and hearing of the jury as follows, to-wit:)
“THE COURT: Is the state prepared to proceed in this case?
“MR. BENTON: Yes, sir.
“THE COURT: Are you prepared to proceed, Mr. Whitehead?
“THE DEFENDANT: I guess so.
“THE COURT: Let me outline for you what the procedure will be [Then followed a comprehensive, courteous explanation].
“Now, before the state begins to present its evidence and before — or after the jury is sworn, rather, the state may make an opening statement and you may make an opening statement, what you expect this case to be, what you expect the evidence to show in the case.
“THE DEFENDANT: In other words, I’m going to be my own attorney?
“THE COURT: Yes, sir, at this point.
“THE DEFENDANT: Can I call somebody in as counsel?
“THE COURT: Who would you wish to call in as counsel?
“THE DEFENDANT: Mr. Martin.
“THE COURT: Mr. Martin is not licensed to practice law in this state.
“THE DEFENDANT: That’s why I was trying to get Mr. Dupree.
“THE COURT: You may have a lawyer to represent you who is licensed to practice law in this state. Whether or not he associates a lawyer who is not licensed to practice law is another matter.
“We are going to take about a ten minute recess.”

Immediately after the recess, the following occurred:

“THE COURT: Is the state ready to proceed?
“MR. DAVIS: Your Honor, at this time the state is ready.
“THE COURT: Mr. Whitehead, are you ready to proceed?
“THE DEFENDANT: Yes, sir. I would like to say something before we start.
“THE COURT: All right, sir. Come over here and do it.
“(The Court, Mr. Davis, and the defendant went to the side bar and the following proceedings were had and done outside the hearing of the jury, to-wit:)
“THE DEFENDANT: I want to go in the record that I tried to obtain counsel from Mr. Faulk, Loftin, Braswell, and Floyd, and that they either wouldn’t take the case or wanted to charge more money than I could pay.
“THE COURT: Is that all?
“THE DEFENDANT: That’s right.”

Thereupon, the jury to try the case was selected by State’s attorney alternatingly striking one on the list and the defendant striking two until twelve jurors were left. The State’s evidence consisted of testimony of Seven witnesses and a number of exhibits. Defendant offered no evidence. Thereafter, counsel for the State made an opening argument to the jury, the defendant made an intervening argument, and counsel for the State made a closing argument. The court then charged the jury and submitted the case to it. In about an hour the jury returned with a guilty verdict.

We are favorably impressed with the trial court’s obviously sincere and sympathetic consideration of defendant’s expressed desire for an attorney to represent him in the case and for a postponement of the trial until he could obtain an attorney to represent him, but we disagree with the decision of the trial court that it should then proceed with the trial in which defendant did not have the benefit of an attorney.

Since Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942) was overruled by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Sixth Amendment to the Constitution of the United States, providing “in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense,” has been held to be applicable to criminal prosecutions in state courts, as well as federal courts, by reason of the due process requirement of the Fourteenth Amendment.

Article I, § 6 of the Constitution of Alabama of 1901 provides that “in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either.” Such right was held to be inviolable in Davis v. State, 292 Ala. 210, 291 So.2d 346 (1974).

In most of the cases on the subject of the necessity for observing and protecting defendant’s right to counsel, the indigency, with the usual concomitant ignorance and inexperience, of defendant has been emphasized, but there can be no reasonable doubt that the right is guaranteed to the rich as well as to the poor and to the wise and experienced as well as to the unlearned and inexperienced. The importance of the right to the one as well as to the other was thus expressed by Mr. Justice Sutherland in Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932):

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.”

We recognize that the trial judge may have had good reason for concluding that by reason of some action or inaction by defendant he had waived or relinquished his right to counsel, but the record and transcript do not disclose it. As shown by the foregoing quotation from the transcript, the trial judge properly discussed the matter with an associate judge, the judge who presided over the arraignment of defendant. Also, it is to be noted, by the statement of defendant, that the other judge had denied defendant’s motion for a continuance. In this connection, it should be observed that any pretrial motion for a continuance can be ruled upon properly by the trial court under the circumstances then existing but that on trial day, when the court calls the case for announcements, previous rulings should not prevail if defendant is entitled to a continuance by reason of circumstances existing at the time the case is called for trial. The record shows that the letter of defendant’s previously retained counsel withdrawing his name as attorney for the defendant was dated June 11, 1980, that it stated that the attorney had “instructed Mr. Whitehead to make arrangements to employ other counsel and of his need to be ready for trial beginning next week.” The letter was filed on June 17,1980. Although one’s right to an attorney to represent him in a criminal prosecution against him certainly includes the privilege of obtaining the services of an available attorney of defendant’s own choice at his own expense, provided such attorney is qualified to practice in the particular court, the defendant is not entitled to a prolonged or indefinite period of time within which to employ such attorney, and his unjustified dilatory procedure to do so should not be allowed to prevent a timely trial of the case.

Notwithstanding our recognition of the superior ability of the trial court to know whether defendant had exercised reasonable diligence and dispatch in obtaining counsel to represent him on the trial, we must be guided by the information before us in the transcript in the record, and we conclude therefrom that he did, and that he should not have been put to trial without further opportunity to obtain the services of an attorney to represent him. We observe that the same attorney who represents him on appeal was one of the attorneys that he was considering employing on the day that his request for a continuance was denied by the other judge. It is plainly a case in which defendant had made arrangements with an attorney to represent him on the trial of the case, but he was not advised until one week before the trial was set that such attorney could not represent him. As on the intervening Saturday and Sunday the courthouse and law offices would be expected to be largely closed, he had only four full days to employ an attorney and so acquaint him with the facts as to enable him, as to the facts, to be ready for trial. He lived in Columbus, had a place of business in Columbus, and doubtless was better acquainted with Columbus lawyers than with lawyers in Russell County, Alabama, but it could hardly be expected of him that he would necessarily know what lawyers in Columbus were qualified to practice in Alabama. The transcript shows that one of the Columbus lawyers with whom he consulted had not been admitted to practice in Alabama. The one who represents him on appeal is a Columbus lawyer who is qualified to practice in Alabama.

It appears that when close questions have been presented as to whether a defendant has been improperly put to trial without counsel, the question is sometimes considered as to whether he has been injured thereby, it being shown in some of such cases that the result was so favorable to defendant, or that the defendant had shown such outstanding ability in defending himself, that he had little, if any, basis for complaint. We doubt that such consideration is appropriate in this case, but, if so, it, in our opinion, favors the defendant, as is to be seen in the following summary of the evidence, which includes some possible questions of law involved and instances of the action of defendant in attempting to defend himself.

According to the evidence, at 9:44 P.M., January 20, 1980, Phenix City officers in a patrol ear received a radio call to proceed to room 143 of Holiday Inn in Phenix City, which was afterwards determined to be a room for which the defendant had registered, that “somebody was bleeding real bad” there. When they arrived, they saw the defendant “and a female sitting next to the door by the window, and there was a girl laying on the bed bleeding from her chest.” The room was “in a mess. It wasn’t neat, it was a messed-up room at the time. It had a lot of blood spattered all over parts of the room.” No weapon was found. Some “open capsules that had nothing in them and some empty syringes” were in the room. Defendant was asked what happened “and he said that he didn’t know, he was asleep.” All three were fully dressed except the woman who was lying on the bed bleeding. “They had a press on her chest and her shirt was off.” Another officer appeared about five minutes after the first two officers in response to a call “concerning a shooting which had occurred in room 143.” She attempted to locate the gun but never found one. She said that defendant “seemed to be highly intoxicated; he couldn’t really help us even answering questions a whole lot.” There were little paper sacks that “had partially consumed fruit fragments that were starting to decompose” in them. There was an ash tray with a “partially smoked cigarette” therein which was afterwards determined to be marijuana. Some filled capsules were found on the carpet. Three of them were determined to be pentobarbital. When one of the witnesses was interrogated by the State as to the cigarette stub, the following occurred:

“Q. Do you recognize the contents of that package?
“A. It’s a partially smoked cigarette that I placed in the envelope.
“THE DEFENDANT: I object, Your Honor.
“THE COURT: On what basis, Mr. Whitehead?
“THE DEFENDANT: It says here I’m charged with possession of phenobarbital. Does that have anything to do with this case?
“THE COURT: Objection at this point will be overruled.”

The witness said that defendant at the time was sitting on the side of the bed nearest “where the cigarette was.” Also a corn cob pipe was in room 143, which was seized and the bowl thereof examined by an expert witness who testified that it contained remnants of burned marijuana. According to a witness, “two filled capsules were found in the shirt of one of the women in the room,” who according to the evidence, was intoxicated. These capsules also contained pento-barbital.

After the conclusion of the State’s opening argument to the jury, the following occurred:

“THE DEFENDANT: I would like to file a motion that you direct the jury to find a verdict of not guilty.
“THE COURT: Just one second. Let’s do that over here.
“(THE COURT: The defendant, Mr. Davis, and the reporter went to the side bar and the following proceedings were had outside the hearing of the jury, to-wit:)
“THE DEFENDANT: I would like to file a motion that you direct the jury to find a verdict of not guilty on the ground that he hasn’t proved that I possessed no phenobarbital.
“THE COURT: At this time the Court is of the opinion that there is sufficient evidence for a jury to decide the question of whether this defendant possessed pen-tobarbital. I overrule the motion. And let the record show that you will take exception to the Court’s ruling.
“All right, sir.”

Thereupon, defendant proceeded to argue the case. He commenced:

“Ladies and Gentlemen, I’m not up here by choice trying to be a lawyer, I was forced into this.
“It was the state’s job to prove that I was in possession of phenobarbital.
“You notice I didn’t call any witnesses in the case. There wasn’t but one witness that I think would have done any good to call, that was Ms._, and she’s in the hospital. And they knew that; they called her case before they called mine. And somewhere down there they’ve got a statement that she made claiming all the pills.”

Thereupon, the State made its closing argument, during which the following occurred:

“And these two young women that he talked about, what were they doing in that room? What was going on in room , 143 at the Holiday Inn? I don’t know, I wasn’t there, but I would suggest to you that what was going on in that room is not something that we want going on in a hotel room in Russell County.
“THE DEFENDANT: Judge?
“THE COURT: Sir?
“THE DEFENDANT: Ain’t he little out of line there, Judge?
“THE COURT: Your objection at this point would be overruled.
“MR. DAVIS: Mr. Whitehead said he wasn’t drinking, he wasn’t taking any pills, he wasn’t taking any drugs, he wasn’t doing anything. Well, what was he doing? Why was he in that motel or hotel room to begin with? Why had he been there three or four days? Why were those pills all over the place? And what can account for his physical condition as described by Patrolman Mills and Detective Cary? If he wasn’t drinking, what was he doing?
“THE DEFENDANT: Miss Mills didn’t say I was in a stupor.
“THE COURT: Mr. Whitehead, if you have an objection, you may certainly make an objection to this closing argument.
“THE DEFENDANT: Can I say something when he gets through?
“THE COURT: No, I’m sorry; our procedure does not allow that. He has the final say so or he has the final argument. Please go ahead, Mr. Davis.
“MR. DAVIS:
“This place that you sit today is a house of law for this county, for Russell County. Today you sit to determine what the law in the county will be as to this case. I submit to you, Ladies and Gentlemen, as citizens of this county we don’t want and don’t need the kind of activity that was going on in room 143 on January 20. And if you want to send that message to the people of this county, return a verdict of guilty in this case.
“Thank you very much.”

It can be seen from the above, we think, that if there is ever a criminal prosecution in which the defendant does not need a lawyer to represent him on the trial, the instant case was not one. Whatever crime he may have been guilty of other than the one charged against him, an attorney could have better protected him than he did or could from the influences that well could have distracted the minds of the jurors from the single issue in the case of defendant’s knowledgeable possession of pentobar-bital. By his having to defend himself, he was placed in an almost impossible position, one in which the more knowledgeable he appeared to be about controlled substances the more nearly guilty he would have appeared to the jury to be. Although he was never sworn as a witness and never testified, and the court endeavored to make it clear to him and to the jury that what he said during the trial was not to be taken as a statement of a fact, the likelihood of incriminating statements by him, a voluble person, to his injury is obvious. He should have had a lawyer even if the relative facts were short and simple. For stronger reason, he should not have been required to try the case without a lawyer under the ramified circumstances of this particular case. We are convinced that the error was not without injury and that the judgment 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.

      . Whether defendant’s constant confusion of phenobarbital with pentobarbital is greatly significant, we cannot tell.

      . It is to be noted that Mr. Whitehead didn’t testify, and the reference to what Mr. Whitehead said was doubtless reference to what Mr. Whitehead had said in his argument.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Darryl Travis WATKINS v. STATE.
    6 Div. 590.
    Court of Criminal Appeals of Alabama.
    Sept. 8, 1981.
    Rehearing Denied Sept. 28, 1981.
    Certiorari Denied, Jan. 29,1982 Alabama Supreme Court 81-22.
    J. Mark White and Demetrius C. Newton, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOOKOUT, Judge.

This case concerns (1) an appeal from the denial of a writ of habeas corpus and (2) an original petition for writ of habeas corpus filed in this court.

On March 5, 1981, appellant filed a petition for writ of habeas corpus in the Circuit Court of Jefferson County. The petition alleges that the appellant was arrested on January 8, 1981, on an indictment returned by the Jefferson County Grand Jury and that he is illegally restrained “without adequate process and is being denied due process and a probable cause adjudication.” After a timely hearing, the trial court denied the petition. The trial judge entered an extensive order setting out the testimony which constitutes probable cause for charging the appellant with the instant offense.

I

The writ of habeas corpus is concerned solely with the lawfulness of the present holding of the petitioner. Stinson v. State, 43 Ala.App. 257, 188 So.2d 287, cert. denied, 279 Ala. 691, 188 So.2d 288 (1966). The record shows that the appellant was indicted under Code § 13A-5-31(5) for the capital murder of a police officer. The indictment is valid on its face and therefore supports the legal detention of the appellant. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Vernon v. State, 240 Ala. 577, 200 So. 560 (1941). Our review of habeas corpus proceedings is confined to jurisdictional matters only. Nations v. State, 41 Ala.App. 581, 141 So.2d 537 (1962). The appellant’s attempt to use the writ for a pretrial test of the sufficiency of the evidence or for discovery is outside the scope of habeas corpus proceedings. Habe-as corpus will usually not issue where the proceedings under which a petitioner is detained are still pending, undisposed of, and the ordinary procedure of the law is still available to him. 39 C.J.S. Habeas Corpus § 12. This high extraordinary writ is not intended as a substitute for the functions of the trial court, and, in the absence of exceptional circumstances, the orderly course of the trial should be pursued. 39 Am.Jur.2d Habeas Corpus § 20.

“[Hjabeas corpus may not be used to interfere with or interrupt the orderly administration of the criminal laws by a competent court acting within its jurisdiction or as a substitute for the ordinary proceedings of a trial court.” United States ex rel. Palma v. Saegert, 251 F.2d 59, 60 (5th Cir. 1957).

II

Counsel for appellant contends that Act No. 81-178, Acts of Alabama 1981, approved March 31, 1981, repealed the capital felony statute upon which the instant indictment is founded (Code § 13A-5-30 through § 13A-5-38). This issue was not raised in the trial court below, and we cannot review that court on an issue never presented to it. Issues not presented in the trial court cannot be considered in an appellate court on appeal from denial of habeas corpus. Rayburn v. State, 366 So.2d 698 (Ala.Cr.App.1978), affirmed, 366 So.2d 708 (Ala.1979); Mayberry v. Davis, 608 F.2d 1070 (5th Cir. 1979).

Counsel for appellant requests that his reply brief filed in this cause be considered as an original petition for writ of habeas corpus in this court. His reply brief is not verified and fails to comply with Code § 15-21-4; however, for purposes of an early disposal of the issues presented, we will look past form to the substance of the matter and address the question presented. Otherwise, the appellant would be forced to file another petition in the circuit court and on an adverse ruling would be before this court again with the same issues presented.

We find that the new death penalty statute (Act No. 81-178, supra) did not repeal the old statute (Code § 13A — 5-30 through § 13A-5-38) as to offenses occurring prior to the effective date of Act No. 81-178, which is specifically stated in Section 24 as “12:01 a.m. on July 1, 1981.” Section 19 of Act No. 81-178 states: “This act applies only to conduct occurring after its effective date. Conduct occurring before the effective date of this act shall be governed by pre-existing law.” Section 20 repeals the old death penalty statute, but specifically provides: “This repealer shall not affect the application of pre-existing law to conduct occurring before the effective date of this act.”

It is clear that the legislature intended to apply pre-existing law (Code § 13A-5-30 through § 13A-5-38) to conduct occurring prior to 12:01 a. m. on July 1, 1981, and to apply Act No. 81-178 to all conduct occurring on and after that time and date.

The fact that the title to Act No. 81-178 did not fully qualify the reference to repealing the old statute does not render the qualified repealer in the body of the act unconstitutional per art. IV, § 45, Constitution of Ala. 1901. That constitutional provision requiring that the subject of an act “shall be clearly expressed in its title” does not mean that the title is to be a complete index and detailed catalog of every clause, section or provision in the act relating to its subject. Alldredge v. Dunlap, 240 Ala. 27, 197 So. 36 (1940); Salmon v. Birmingham Parking Authority, 294 Ala. 226, 314 So.2d 687 (1975). In Opinion of the Justices, 262 Ala. 345, 349, 81 So.2d 277, 281 (1955), our supreme court stated:

“It is sufficient to say that the title of an act need not be an index to it nor need it catalogue all powers intended to be bestowed. When the subject is expressed in the title in general terms, everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it.... ”

The single subject of Act No. 81-178, supra, is the establishment of new capital felony offenses in Alabama. All other provisions of the act concerning punishment, procedure, effective date and repealer relate to that single subject. Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971). We therefore affirm the trial court’s denial of the petition for writ of habeas corpus filed therein and, treating the appellant’s request in his reply brief as an original petition for writ of habeas corpus filed in this court pursuant to Amend. 328, § 6.03(d), Constitution of Ala. 1901 and Code § 12-3-11, the same is hereby denied.

AFFIRMED; PETITION DENIED.

All the Judges concur except HARRIS, P. J., concurs in the result only.


author: TYSON, Judge.

text:
    Willie Arthur SULLEN v. STATE of Alabama.
    1 Div. 248.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29,1982 Alabama Supreme Court 81-220.

      Dennis J. Knizley, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Willie Arthur Sullen was indicted by the Mobile County Grand Jury for “assault in the first degree” in violation of § 13A-6-20, Code of Alabama 1975. At trial the jury found appellant “guilty as charged in the indictment.” After this verdict, the prosecution moved for a pre-sentence investigation and hearing and gave notice to the appellant and the trial court that the appellant should be sentenced as a “habitual felony offender.”

Upon completion of the sentencing hearing, where it was revealed that the appellant had four previous burglary convictions, the trial court sentenced him to life imprisonment.

During the night of August 21, 1980, a burglar entered the home of Ethel Mutch-nick, through an unlocked window, after Ms. Mutchnick had retired for the night. The burglar took, among other things, several checks and a savings certificate made payable to Ms. Mutchnick. Before leaving her home, the burglar attacked and severely beat the 83 year old victim and left her, bleeding profusely, on the floor under a pile of furniture.

The next morning when she regained consciousness, Ms. Mutchnick had just enough strength to make her way outside where she collapsed in the street. She was soon discovered by Mr. Allen Bill and her neighbor, Ms. Lillian Jackson, who attended her until she could be transported to the hospital for treatment. As a result of this brutal attack, Ms. Mutchnick underwent a lengthy period of hospitalization for her facial injuries and a slow recovery process.

During the investigation of this burglary, latent fingerprints were lifted from several pieces of Ms. Mutchnick’s furniture and from the screen removed from the window through which the burglar entered. These latent prints were subsequently compared to the prints taken from several suspects in the case. The comparison by police experts revealed that the latent prints matched those taken from the appellant, Willie Arthur Sullen.

As soon as he could be located, the appellant was arrested for the first degree assault on Ms. Mutchnick.

The subsequent investigation in search for certain items removed from Ms. Mutch-nick’s home led detectives to the appellant’s father, Willie Sullen, Sr., who told them that the appellant had stayed “on and off” with his mother, Ruth Thomas, at her residence. Pursuant to a search warrant obtained for that residence, police detectives executed a search of Ms. Thomas’ house and found several of the items taken from Ms. Mutchnick’s home, including the four checks and the savings certificate made payable to Ms. Mutchnick.

The appellant presented no evidence in his behalf at trial.

Since the victim, Ms. Mutchnick, could not identify her assailant, appellant’s conviction was largely based upon the fingerprint identification of appellant and the evidence obtained in the search of the home of Sullen’s mother.

During the' trial appellant’s counsel vigorously cross-examined the prosecution’s fingerprint expert and clearly contested the search warrant, the admissibility of the fruits of the search, the trial court’s refusal of appellant’s requested jury charges, and the timeliness of the notice of the prosecution’s intent to have appellant sentenced as a “habitual felony offender.”

I

The major issue raised on appeal is whether or not the appellant had “standing” to contest the search of his mother’s residence. The basis of appellant’s argument is that he stayed at his mother’s home often enough to be able to contest the validity of the search warrant on the grounds that the supporting affidavit was based on uncorroborated hearsay from a source not verified as “reliable.” Appellant, therefore, asserts that he had “standing”, that the search warrant was illegal, and that the trial court erred in denying his “motion to suppress” the warrant and the “fruits” of this alleged illegal search.

During the hearing on appellant’s “motion to suppress” the appellant, after inquiry by his own counsel, stated that he resided at “1563 Beach.” (R. 140). Appellant’s counsel then attempted to impeach his own witness by soliciting testimony from appellant that he had often stayed with his mother at 558 Wisconsin Avenue, the residence covered by the search warrant. Pursuant to the prosecution’s timely objection, no further testimony was permitted regarding the amount of time appellant spent at his mother’s home.

The modern liberalization of the rule in Alabama regarding “standing” to contest an allegedly illegal search and seizure was recently discussed in Waters v. State, 360 So.2d 347 (Ala.Cr.App.), cert. denied, 360 So.2d 358 (Ala.1978). In that case this court recognized that although the general rule that “Fourth Amendment rights are personal in nature and may be asserted only by those whose own protection has been infringed by the search and seizure” is still valid, a defendant need no longer “establish that he was the owner or possessor of the seized property or that he had a possessory interest in the premises searched.” Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Waters, supra.

However, to take advantage of this liberalized “standing” (narrowed considerably by more recent Supreme Court decisions) a defendant must either be charged with a “possession” crime or be “legitimately on the premises” when the search occurs. Neither of these requirements are met in the instant case. The appellant here was charged with “first degree assault.” Possession of the evidence seized at his mother’s residence, the stolen checks and savings certificate, was not an essential element of the crime charged so as to create for the appellant a possessory interest in the property seized. Furthermore, the appellant had already been arrested at the time of the search. He was definitely not “on the premises” when his mother’s residence was searched pursuant to the allegedly illegal warrant.

Moreover, for aught that appears in the record before us, appellant’s mother, Ruth Thomas, had the sole possessory interest in her residence and consented to the search of her home, including the room or rooms in which the appellant had recently spent the night. Such consent might well have vitiated the requirement of a warrant.

For the foregoing reasons, we hold that appellant lacked “standing” to contest the legality of the search warrant and therefore that there was no error by the trial court in denying appellant’s motion to suppress the warrant or its “fruits.” Cross v. State, 351 So.2d 698 (Ala.Cr.App.1977); Johnson v. State, 353 So.2d 62 (Ala.Cr.App.1977); McGee v. State, 383 So.2d 881 (Ala.Cr.App.), cert. denied, 383 So.2d 884 (Ala.1980).

Since the appellant lacked “standing” to contest the warrant we need not reach the issue concerning the sufficiency of the affidavit.

II

Appellant further contends that the trial court erred in denying his seven requested written jury charges. (R.ll—14). However, in brief appellant concedes that charges two through seven were covered in the trial court’s oral charge.

We have reviewed the remaining refused charges and the trial court’s oral charge and have reached the conclusion that the pertinent and correct statements of law expressed not only in charges two through seven, but also in charge one were “substantially and fairly” covered by the trial court’s oral charge. (R. 169-178). Section 12-16-13, Code of Alabama 1975, Ball v. State, 51 Ala.App. 270, 284 So.2d 296 (1973); Watkins v. State, 357 So.2d 156 (Ala.Cr.App.), cert. denied, 357 So.2d 161 (Ala.1977). Therefore, there was no error in the refusal of these charges.

Ill

Appellants final assertion is that he had an absolute right to be informed, prior to the trial on the substantive charge, of the prosecution’s intention to have him sentenced, if convicted, as a “habitual felony offender.”

There is no merit in this contention in light of our recent decisions which specify that there is no pre-trial notice requirement. Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 216 (Ala.1981); Johnson v. State, 398 So.2d 393 (Ala.Cr.App.1981); Smith v. State, 401 So.2d 251 (Ala.Cr.App.1981); Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App.1981).

For the foregoing reasons, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

BOWEN, J., concurs in result only.

      . See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547. 65 L.Ed.2d 619 (1980) which Overrule the “automatic standing” aspect of the Jones rule in favor of a more flexible rule granting “standing” only to those who establish a “legitimate expectation of privacy” in the area of the search. Rakas and Salvucci require more than a mere showing of a “possession” charge or that the defendant was “legitimately on the premises.” In the instant case even these threshold requirements were not met. Consequently, appellant would not have satisfied even the broad “automatic standing” rule of Jones, much less the narrower form of the rule as qualified by Rakas and Salvucci.


text:
    Rodger TREST v. STATE.
    1 Div. 269.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29,1982 Alabama Supreme Court 81—265.

      Margaret G. Thomas and Mary E. Murchison, Foley, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Murder; sentence: life imprisonment.

The victim, Linda Sue Trest, mother of two small children and the estranged wife of the appellant, was murdered on the morning of November 3, 1980, by her husband as she sat in her automobile after driving her son to his school bus stop. The couple had been separated approximately six weeks at the time the husband decided to wait for her at the bus stop in order to discuss their marital situation. Several witnesses who knew or could recognize the victim were in the habit of seeing her with her son at the bus stop and testified to having seen her there the morning of the murder. They observed her in the company of a blond or light-haired young man with a mustache whom they identified at trial as the appellant. Mrs. Trest was found at the bus stop later that morning, still seated in her automobile, with three gunshot wounds to the head.

The appellant, testifying in his own behalf, admitted that he waited at the bus stop that morning to attempt to talk privately with his wife about their relationship. She allowed him to enter her vehicle. After their small son departed on the bus, he questioned her on her intent to obtain a divorce. He then accused her of having an affair with his brother David. He said she first denied the accusation, but then admitted the affair. Appellant testified that he had brought a handgun with him that morning in order to kill himself in his wife’s presence. However, when she admitted the affair to him, he became so upset his “blood went to boiling,” and he pulled the gun and fired four times, hitting her three times in the head. His version of the murder appears in the record as follows:

“A. I shot, I think, four times. I shot once which it hit her in the neck, and I looked at her for a moment and she was just laying [sic] there looking back at me as if she was in pain, or something, and I loved her so much I didn’t want to see her in that pain so I shot again and missed. And shot once more and hit her in the head somewhere.
“Q. And did you shoot her again?
“A. Yes, sir. At that time I walked around the car to get on my motor to leave and I looked back at her and there was feelings in my heart that she was still alive and suffering and I didn’t want to see her suffer so I shot one more time.”

Appellant stated that after shooting his wife he aimed the gun at his own head and pulled the trigger twice, but the gun failed to fire.

Appellant’s brother, David Trest, testified on the State’s rebuttal that he was not having an affair with appellant’s wife.

I

Appellant argues that the court erred in admitting his inculpatory statement made without assistance of counsel and without a proper showing of voluntariness. Appellant’s sole contention rests on the fact that after appellant was informed of his rights and acknowledged understanding them, and after having sent for an attorney, he began an unsolicited confession without interrogation by the officers in control.

The officers investigating the case testified that no threat, inducement or offer of reward was made to appellant to prompt his statement. After having been read his Miranda rights, appellant stated that his brother had gone to obtain an attorney. Officer Stanley Fant told appellant that was a wise decision due to the nature of the charge. However, as Officer Fant and Officer Robert Stewart began talking between themselves, the appellant interrupted with a spontaneous statement that he did not intend to kill his wife, that he borrowed the pistol to kill himself in his wife’s presence. Officer Stewart at this point again cautioned appellant to discuss the matter with his attorney, but appellant continued his statement. The statement was not memorialized in writing by the investigators, but was related orally from memory by Officer Stewart at trial. The statement reflected the substance of appellant’s own testimony given at trial, related herein-above.

Because appellant voluntarily and without solicitation made a statement to the investigating officers as they talked to each other, appellant argues their conversation must have been of such a nature as to impermissibly elicit inadmissible statements. Such a contention is unfounded and mere speculation. The record reflects no such improper conversation even though both investigating officers were thoroughly examined and cross-examined at length by prosecution and defense attorneys. In fact, Officer Fant was cut off by defense counsel on cross-examination when he started to relate the substance of the conversation Officer Stewart was having with him at that time. No evidence of improper inducement of any nature is apparent from the trial record which would bring this case within the purview of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

When appellant advised the officers that his brother had gone to obtain an attorney for him, all questioning ceased, as is now required by Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Indeed, if anything, the record reflects the investigating officers were solicitous in their attempts to prevent the appellant from talking without benefit of counsel, rather than the opposite as argued by appellant. Additionally, appellant testified at trial that he recalled having been read his rights and being asked about obtaining an attorney by Officer Stewart. Also, he stated that Officer Stewart’s oral account of the statement was substantially correct.

This court cannot resort to speculation as to matters not presented in the trial record. We are confined to the review of facts ascertainable from the record. Duma s v. State, Ala.Cr.App., 369 So.2d 317 (1979). There is no conflicting or contradictory evidence presented in the record which places the voluntariness of appellant’s statement in question. The issue of volun-tariness was correctly heard and determined by the trial judge, and his decision will not be disturbed on appeal unless it is palpably contrary to the weight of the evidence. McNair v. State, 50 Ala.App. 465, 280 So.2d 171, cert. denied, 291 Ala. 789, 280 So.2d 177 (1973). We find no merit to appellant’s contention of hypothetical impropriety or interference with assistance of counsel. The statement was correctly admitted.

II

Appellant alleges that a material variance existed between the weapon designated in the indictment and the proof at trial as to the type of weapon used in committing the offense. The indictment charged that the deceased was shot with a “thirty-eight caliber pistol.” Proof at trial by firearms expert Richard Dale Carter was that the bullets taken from Mrs. Trest’s wounds were either .38 or .357 caliber bullets fired from a revolver. Carter stated that both such bullets are actually .35 caliber bullets, that they differ only in the amount of powder each contains and the length of the case or hull. He testified that technically there is no difference between the two bullets, that they are interchangeable in use.

Where the weapon designated in the indictment and the weapon proved at trial are of the same nature and character, there is no variance. The law does not require precise conformity in every particular where the weapon is alleged, but rather substantial proof of the means by which the offense was committed. Matthews v. State, 51 Ala.App. 417, 286 So.2d 91 (1973); Threatt v. State, 32 Ala.App. 416, 26 So.2d 530 (1946). Further, we perceive the jury was presented with evidence by the State from which it could have concluded the deceased was murdered by a .38 caliber pistol.

We have reviewed the entire record and find no error harmful to the substantial rights of appellant.

AFFIRMED.

All the Judges concur.


text:
    Donald KELLEY v. STATE.
    3 Div. 365.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-201.

      W. Clarence Atkeison & Kenneth Shin-baum, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen. and John Gibbs, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Embezzlement; sentence: five years’ imprisonment.

Appellant, while serving as City Clerk and Treasurer of the City of Pratt-ville, between October 1977 and September 1978, took female employees of the city clerk’s office to lunch at the Prattville Holiday Inn on several occasions. None of the female employees who were taken to lunch actually saw how appellant paid for the meals. The appellant insisted that he paid cash; however, the circumstantial evidence was great that the bills were paid for with City of Prattville checks which had been signed by appellant and the mayor of Pratt-ville in their official capacities. Under the principles enunciated in Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), concerning circumstantial evidence, appellant’s guilt or innocence became a jury question. See Dolvin v. State, 391 So.2d 133 (Ala.1980). It is not the function of this court to reweigh the evidence. Each element necessary to sustain a conviction for embezzlement was sufficiently proved. Pullam v. State, 78 Ala. 31 (1884).

I

We disagree with appellant’s contention that reversible error occurred where his indictment did not state the precise time the offense was committed. Appellant argues, in essence, that since his indictment did not state the precise time the offense was committed he did not know whether to defend against embezzlement under Alabama Code §§ 13-3-20, 13-3-21 (1975) or against one of the theft of property crimes set out in Title 13A of the Alabama Criminal Code which became effective on January 1, 1980. Sections 13-3-20 and 13-3-21 were repealed for offenses occurring after the effective date of the Criminal Code.

For the sake of clarity, we set out here the first two counts of appellant’s indictment which were considered by the jury. Count III of appellant’s indictment was stricken by the trial court before the case was submitted to the jury. Omitting its formal parts, appellant’s indictment reads:

“The Grand Jury of said County charge that, before the finding of this indictment Donald Kelley, whose name is to the grand jury otherwise unknown than as stated, while the City Clerk-Treasurer of the City of Prattville, Alabama, who was entrusted with the collection, receipt, safekeeping, transfer or disbursement of money or funds belonging to or under the control of a city or town, to wit: Pratt-ville, Alabama, did convert to his own use or the use of another person or corporation, in a manner contrary to law, a portion of such money or funds, to wit: seven hundred thirty-nine dollars and thirty-five cents ($739.35), which said money or funds were paid to the Holiday Inn Pratt-ville by the City of Prattville for meals charged by the said Kelley, against the peace and dignity of the State of Alabama.
“COUNT II
“The Grand Jury of said County further charge that, before the finding of this indictment, Donald Kelley, whose name is to the grand jury otherwise unknown than as stated, while an officer or employee, to wit: City Clerk-Treasurer, of a municipal corporation, to wit: Pratt-ville, Alabama, did embezzle or fraudulently convert to his own use or the use of another money and checks or money or checks to the amount of about, to wit: seven hundred thirty-nine dollars and thirty-five cents ($739.35), and of that value, which said money and checks or money or checks were paid to the Holiday Inn Prattville by the City of Prattville for meals charged by the said Kelley, and which said money and checks or money or checks came into his possession by virtue of his office or employment, against the peace and dignity of the State of Alabama.”

The general rule, and the rule that is controlling in the instant case, is that it is not necessary to state in an indictment the precise time an offense was committed. Alabama Code § 15-8-30 (1975). An exception to this rule arises if time is a material ingredient of the offense; however, that exception is not applicable here.

Appellant relies on Trent v. State, 15 Ala.App. 485, 73 So. 834 (1916), and other similar cases for the proposition that an indictment must aver the time an offense was committed if the indictment covers a period of time when two mutually exclusive statutes are in force and the court cannot say from the record which should be applied. In each case cited by the appellant, time was held to be a material ingredient of the offense. Without some averment of time stated in the indictment in those cases, it was not clear whether the accuseds were being prosecuted under a new statute or an old statute. The situation in the case at bar is distinguishable.

Initially it must be noted that Count I and Count II of appellant’s indictment, which was returned against him on September 16,1980, follow substantially the language in Alabama Code §§ 13-3-21,13— 3-20 (1975), respectively. From its plain reading, appellant’s indictment specifically charges him with embezzlement and not with theft of property under § 13A-8 — 4. In fact, Count II charges with particularity that appellant “did embezzle.” Thus, from the record, it can clearly be seen that the State was proceeding under §§ 13-3 — 20 and 13-3 — 21, and not under a new statute. Appellant in this case could not have been misled or in doubt as to the charge of which he was accused. Holt v. State, 238 Ala. 219, 193 So. 101 (1939). Since there can be no question that appellant was charged with embezzlement from the face of his indictment, appellant was put on notice that he was being charged for an offense occurring prior to 1980. Therefore, it was not necessary for appellant’s indictment to state the precise time the offense was committed.

Assuming arguendo that time was a material ingredient of the offense in this case, we opine that this requirement was sufficiently met. Appellant’s indictment charges with clarity in both counts that the offense of embezzlement occurred while he was City Clerk-Treasurer of the City of Prattville. This averment was necessary to establish that appellant was an agent, an essential element to embezzlement. Pullam v. State, 78 Ala. 31 (1884). It is also an elementary principle of law that an indictment must be proved as it is laid. Airhart v. State, 388 So.2d 211 (Ala.Cr.App.1979), cert. quashed, 388 So.2d 213 (Ala.1980). In other words, in order to prove a prima facie case against appellant, it was incumbent upon the State to prove that appellant committed the offense charged while he was City Clerk-Treasurer of the City of Pratt-ville. Appellant admitted through his sworn testimony that his employment with the City of Prattville was terminated on November 16, 1979, well before the effective date of Title 13A. It becomes readily apparent that appellant’s indictment apprised him of what time period he was accused of committing the specified criminal offense — that time period when he was Prattville City Clerk-Treasurer which was prior to 1980. Moreover, because appellant was apprised of the time period in question, he was necessarily apprised that the offense charged was embezzlement and not a Title 13A crime.

II

There is no merit to appellant’s argument that the State improperly joined offenses in his indictment which were not subject to the same punishment. As stated earlier, only Counts I and II of appellant’s indictment were submitted to the jury. These counts follow substantially the language in Alabama Code §§ 13-3-20, 13-3-21 (1975). The punishment for violation of either of these sections is the same: as if the person had stolen the money or property.

Appellant’s argument that the State im-permissibly charged twelve distinct and separate offenses, some of which were felonies and others which were misdemeanors, falters on authority of Willis v. State, 134 Ala. 429, 33 So. 226 (1901). Also see Troup v. State, 32 Ala.App. 309, 26 So.2d 611 (1946). In Willis the defendant embezzled small sums of money totaling about $306 over a period of approximately two years from time to time as it came into his possession. In addressing the identical issue we have before us, our supreme court wrote:

“The tendency of the evidence strongly supports the theory that the defendant systematically instituted a continuous series of withholding of his principal’s money for the purpose of acquiring for his own use, ultimately, a large sum. Where this is the case, the doctrine of election does not apply, since the series of acts would constitute but one offense and each separate act would not be separate and distinct offenses....
“If proof was made that $25 or more was embezzled, the crime is punishable as grand larceny is punished. . . . ”

134 Ala. at 450, 454, 33 So.2d 226.

We find those principles announced in Willis and followed in Troup applicable in this case.

Ill

Appellant alleges that the trial court committed reversible error in allowing the State to introduce evidence, over objection, of his personal relationship with Mrs. Linda Williams, one of the female employees he took to lunch at the Holiday Inn. Testimony revealed that while appellant was indulging himself and others to lunch at city expense, he and Mrs. Williams indulged in indiscretions of a romantic nature in his office during working hours. Mrs. Williams was seen sitting in appellant’s lap; the two were observed hugging, kissing, and embracing; and appellant was witnessed touching Mrs. Williams’s breasts. Appellant argues that this evidence was irrelevant to the issue of embezzlement and was an attempt by the State to inflame the jury by showing him to be a person of bad character. The State counters that appellant’s personal relationship with Mrs. Williams was relevant to show his motive for committing embezzlement. On review of the authority dealing with the question of motive, we cannot disagree, as a matter of law, with the State’s position.

In cases based largely upon circumstantial evidence, a rather wide range of evidence is allowed in developing circumstances tending to show motive on the part of the accused. Turner v. State, 224 Ala. 5, 140 So. 447 (1931); Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.), cert. denied, 373 So.2d 1211 (Ala.1979). Where the evidence is in conflict as to whether the accused did the act, or is partially or wholly circumstantial upon that issue, the question of motive becomes a leading inquiry. Harden v. State, 211 Ala. 656, 101 So. 442 (1924). While not alone sufficient to justify a conviction, motive may strengthen circumstantial evidence. Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), affirmed, 391 So.2d 677 (Ala.1980). Evidence of a particular relationship between the accused and another person, when combined with other factors, may be relevant in proving motive and therefore be admissible. Turner, supra.

As our supreme court stated in McDonald v. State, 241 Ala. 172, 174, 1 So.2d 658 (1941): “Testimony going to show motive, though motive is not an element of the burden of proof resting on the state, is always admissible.” (Emphasis added.) And as was held in Baalam v. State, 17 Ala. 451, 453 (1850), “When it is shown that a crime has been committed and the circumstances point to the accused as the guilty agent, then proof of a motive to commit the offense, though weak and inconclusive evidence, is nevertheless admissible.” See also McClendon v. State, 243 Ala. 218, 8 So.2d 883 (1942); Spicer v. State, 188 Ala. 9, 65 So. 972 (1914). Even slight evidence to show a motive for doing the act in a criminal case is not to be excluded, but should be left to the consideration of the jury. Arnold v. State, 18 Ala.App. 453, 93 So. 83 (1922).

Further in Earnest v. State, 21 Ala.App. 534, 536, 109 So. 613 (1926), the court held the following:

“[I]t is permissible in every criminal case to show that there was an influence, an inducement, operating on the accused, which may have led or tempted him to commit the offense. It may spring from the lust of gain, or the gratification of an unlawful passion, from animosity, ill will, hatred, or revenge. The extent or magnitude of such motive, whether great or small, is also a proper inquiry. .. .”

While a jury cannot be too “cautious” in attaching importance or weight to evidence of motive, if the evidence tends to prove the existence of motive, even if such evidence is weak and inconclusive, it cannot be rejected. Baalam, 17 Ala. at 454.

With these principles of law in focus, it can be seen from the present facts that at least part of the appellant’s motive for embezzling funds from the City of Prattville was so that he might enjoy the personal relationship he experienced with Mrs. Williams, whom he so frequently wined and dined at city expense. From the record before us, it appears that appellant encouraged and exhibited unprofessional conduct with other female employees in his office other than Mrs. Williams, but that his involvement with Mrs. Williams had progressed further along than with any of the others. Appellant took each one of these women to lunch for no apparent business purpose. The motive for those frequent “treats” to steak and whiskey is apparent. Appellant had to have funds to pay for these outings, and the city treasury supplied those funds. Thus, it cannot be said that appellant’s motive for embezzling city funds was totally absent his desire to maintain his personal involvement with Mrs. Williams and to maintain his standing with those other female employees. This inference is reasonable and not speculative. Spi-cer, supra. It, therefore, was admissible for the State to show the full extent of appellant’s relationship with Mrs. Williams. To what degree their personal relationship motivated appellant to embezzle was a jury question.

IV

During redirect examination of Mrs. Connie Creel, another of the female employees appellant carried to lunch and who was City Clerk for Prattville at the time of appellant’s trial, the following exchange occurred:

“Q. Mrs. Creel, how often did you ever notice money on the defendant? I mean, cash money?
“A. I—
“MR. SHINBAUM: I am going to object. It is irrelevant.
“MR. GRADDICK: It’s not irrelevant in an embezzlement case.
“THE COURT: I overrule—
“MR. SHINBAUM: He is accused of embezzling meals at the Holiday Inn. Now, if you want to show that he carried around meals all of the time, that might be relevant, but money is something else.
“THE COURT: I overrule the objection.
“Q. How many times, Mrs. Creel?
“A. How many times?
“Q. Uh-huh.
"A. A lot.”

We hold that any error by the trial court in the reception of this testimony was harmless at most. Rule 45, Alabama Rules of Appellate Procedure. While Mrs. Creel testified that she did not see how appellant had paid for the meals at the Holiday Inn, the evidence was fully developed that the meals were paid for with City of Prattville checks written at a later time. There was never any contention that appellant had embezzled cash from the City of Prattville. The fact that Mrs. Creel had seen “cash money” on appellant’s person would therefore be a fact tending to exculpate and not incriminate appellant.

V

The verdict of the jury was in accordance with the trial court’s oral charge. We note that no exceptions were taken at the conclusion of the court’s instructions. The trial court's oral charge must be considered and construed as a whole and in connection with the evidence, and if, when so construed, it asserts a correct proposition applicable to the evidence, then a disconnected part or sentence is not reversible error. Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978).

VI

We have carefully reviewed each of appellant’s refused written charges and find that those charges were either substantially covered by the trial court’s oral charge or other given written charges, were affirmative, or were abstract as applied to the facts. Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956); Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974). Their refusal was thus proper.

We have considered each issue raised by appellant. In addition we have searched the record as required by law and find no error.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Harry Delano FINN, alias Harry Snell v. STATE.
    4 Div. 886.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Oct. 27, 1981.
    Certiorari Denied, Jan. 29,1982 Alabama Supreme Court 81-147.

      William C. Carn, III of Lee & Mclnish, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for burglary in the third degree. Section 13A-7-7, Alabama Code 1975 (Amended 1977). Sentence was ten years’ imprisonment.

The evidence shows that the defendant broke into the trailer portion of a tractor-trailer vehicle. The tractor-trailer was utilized in the business of Acme Moving and Storage. The trailer was approximately three-quarters full of household furniture.

The issue presented is whether the trailer portion of a tractor-trailer constitutes a “building” as defined by the burglary statutes.

Section 13A-7-l(2) defines “building” as: “Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein.”

(Emphasis added)

The commentary to this section explains:

“In addition to its ordinary meaning, ‘building’ includes ‘any vehicle, aircraft or watercraft’ which are not permanent structures or buildings in the ordinary sense, provided at the time they were being used for lodging, business, or the storage of goods. Thus, a private airplane, housetrailer, camper, mobile field office or tool house, houseboat or bus might qualify under the definition.”

Under Sections 13A-1-2(13) and 13A-8-1(9), a tractor-trailer is a “vehicle” within the definition of the Alabama Criminal Code. See Haden v. Lee’s Mobile Homes, Inc., 41 Ala.App. 376, 380-1, 136 So.2d 912, cert. denied, 273 Ala. 708, 136 So.2d 920 (1961).

More specifically, the question we must answer in this case is whether a tractor-trailer employed in the business of moving household goods and furniture and in which household furniture is actually contained is a vehicle used for “carrying on business therein.”

To support his argument that the tractor-trailer is not a building, the defendant cites State v. Scott, 38 Or.App. 465, 590 P.2d 743 (1979), wherein the Court of Appeals of Oregon held that a railway boxcar was not a building as defined in the burglary statute. (Building “includes any . . . vehicle ... or other structure adapted ... for carrying on business therein.” Scott, 590 P.2d at 744). The Oregon Court noted:

“There is nothing in the nature of a railroad boxcar which indicates that it is adapted for carrying on business therein. It is conceivable that a boxcar may be adapted for that purpose or for accommodating people overnight, but there is no evidence that this boxcar was so adapted or that it was anything other than a structure for the storage of goods during their transportation. Therefore, we conclude that this railway boxcar was not a building as that term is used in the burglary statutes and the acquittal should have been granted.”

Scott, 590 P.2d at 744.

The State, in arguing that the tractor-trailer is a building, relies on State v. Shannon, 171 Mont. 25, 554 P.2d 743 (1976). In that case the defendant burglarized the trailer portion of a tractor-trailer. The Supreme Court of Montana found that a tractor-trailer (where the tractor portion had a sleeper-cab in which the operator could sleep) was an “occupied structure” and a vehicle within the statutory definition. In Montana, an “occupied structure” is defined by statute as “any . . . vehicle, or other place suited for human occupancy or night lodging of persons or for carrying on business whether or not a person is actually present.” Shannon, 554 P.2d at 743. In reaching this conclusion, the Court noted that the primary gravamen of burglary at common law and under the Montana Criminal Code is the threat to person resulting from the wrongful intrusion. The Court noted that the burglary statute was drafted with a second intention in mind because the drafters of the criminal code also included language expressly intended to protect the structure or vehicle used for “carrying on business.” The definition of “occupied structure” in the Montana Criminal Code is so patently distinguishable from Alabama’s definition of “building” that the case of Shannon cited by the State is without any significance in deciding the issue we face.

It is significant, we think, that the definition of “building” in the Alabama Criminal Code is limited to any vehicle used for the “lodging of persons or carrying on business therein” and does not include any vehicle used for the “storage of goods.” The significance is in the fact that building is defined as “(a)ny structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods.” A strict and literal interpretation of this definition excludes a vehicle used for the storage of goods from being considered a building. In agreement with Scott, we do not consider the mere storage of goods in a trailer to constitute the “carrying on of business therein.”

Section 13A-8-ll(b) specifically provides for the unlawful breaking and entering a vehicle. The commentary to this section states: “Since burglary under the Criminal Code is technically concerned only with the unlawful entering or remaining in buildings and dwellings, none of these degrees cover the illegal entry of vehicles in general.”

Criminal statutes must be strictly construed in favor of those persons sought to be subjected to their operation. Sexton v. State, 392 So.2d 1239, 1241 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1241 (Ala.1981). “‘Penal statutes are to reach no further in meaning than their words.’ Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). ‘No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused.’ Fuller v. State, supra.” Clements v. State, 370 So.2d 723, 725 (Ala.1979).

Under the facts of this case, the trailer was not a building as that term is used in the burglary statutes. The defendant’s motion to exclude the State’s evidence upon this ground was due to be granted. The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.

      . Section 13A-1-2.
      “(13) VEHICLE. Any ‘propelled vehicle’, as defined in subdivision (9) of section 13A-8-1, and such term includes any propelled device by which any person or property is transported on land, water or in the air, and includes motor vehicles, motorcycles, motorboats, and aircraft, and any vessel, whether propelled by machinery or not.”

      . Section 13A-8-1.
      “(9) PROPELLED VEHICLE. Any propelled device in, upon or by which any person or property is transported on land, water or in the air, and such term includes motor vehicles, motorcycles, motorboats, aircraft and any vessel propelled by machinery, whether or not that machinery is the principal source of propulsion.”


text:
    Jimmy PHILLIPS v. STATE.
    5 Div. 599.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied Jan. 29, 1982. Alabama Supreme Court 81 — 229.

      Thomas E. Jones, Auburn, 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 robbery in the first degree. Sentence was twenty-one years’ imprisonment.

I

The defendant argues that the pretrial identification procedure was unduly suggestive and unreliable and, therefore, inadmissible at trial. After the defendant had been arrested for the robbery of Cog-gins Jewelry, William T. Coggins, the owner and operator of the store, identified the defendant’s photograph from a police “mug book” as one of the men who had robbed him. The mug book contained thirty to forty pictures. The test for determining the reliability of identification testimony following a pretrial identification procedure is whether the procedure was “unnecessarily suggestive and conducive to irreparable mistaken identification.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).

The defendant contends that the identification was unduly suggestive because Coggins was told that an arrest had been made and that the ■ suspect’s picture was in the mug book before he made his identification. While such information is suggestive it is not “unnecessarily suggestive”. Just as with the lineup procedure, it is perfectly natural for a person called to make an identification from photographs to understand that a suspect’s picture is among those photographs. That a person is actually told that the suspect’s photograph is among the other pictures, although generally inadvisable, does not contaminate the identification proceeding. Joshua v. State, 372 So.2d 885 (Ala.Cr.App.), cert. denied, Ex parte Joshua, 372 So.2d 891 (Ala.1979). The victim of a crime has a right to assume when asked to make an identification in a pretrial identification procedure “that he is not being toyed with, that there is more than an infinitesimal chance of a member of the lineup being the criminal . .. . ” Fletcher v. State, 337 So.2d 58, 60 (Ala.Cr.App.1976). “(T)he mere fact that suspects are included within the lineup, and that witnesses know or assume this to be the case is an inescapable aspect of lineup identification procedure.” United States v. Person, 478 F.2d 659, 661 (D.C.Cir.1973). See also McGee v. Estelle, 632 F.2d 476 (5th Cir. 1980). Therefore, the fact that Coggins knew the suspect’s picture was in the “mug book” does not taint the identification.

The defendant also alleges that the photographic display was unnecessarily suggestive because Coggins viewed the mug book on November 10, 1980. At that time Coggins was informed that a suspect had been arrested that very day and that the suspect’s photograph was in the mug book. This was the first time that the police told Coggins that they had a suspect. The defendant alleges that his photograph was dated November 10, 1980, and that Coggins used this date to make the identification.

These facts, if proven, might have constituted an impermissibly suggestive photographic lineup. However, at trial Coggins testified that at the time he viewed the photograph it was not dated and that he did not rely on any date in making his identification. Since there was no other evidence that the photograph was dated at the time Coggins made his identification, we find the defendant’s argument without factual support.

The first prong in determining whether a pretrial identification can be properly admitted is whether the photographic lineup is impermissibly suggestive. If it is not, the inquiry ends. Branch v. Estelle, 631 F.2d 1229 (5th Cir. 1980); United States v. Sonderup, 639 F.2d 294 (5th Cir. 1981). However, even if there had been an unduly suggestive pretrial identification procedure, the in-court identification testimony need not be excluded if the prosecution can establish by clear and convincing testimony that, rather than stemming from the unfair pretrial confrontation, the identification has an independent source. Cartee v. State, 390 So.2d 1121 (Ala.Cr.App.1980); Carpenter v. State, 380 So.2d 368 (Ala.Cr.App.1980); Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979).

“Whether an in-court identification has been so tainted by an extrajudicial identification as to vitiate the in-court identification is not to be determined solely by the circumstances of the extrajudicial identification, but all of the circumstances relative to the identification of defendant by the witness are to be taken into consideration, and if it is determinable therefrom that an in-court identification was independent of the extrajudicial identification, evidence of the in-court identification is admissible.” Matthews v. State, 361 So.2d 1195 (Ala.Cr.App.1978).

In this case Coggins testified that he got a good look at the defendant during the robbery. Several times during trial Mr. Coggins testified that he was sure beyond a reasonable doubt that the defendant was the one who robbed him and that his in-court identification of the defendant was based upon his observations at the time and scene of the crime. Coggins stated that he was “absolutely certain” and “positive” that the defendant was one of the men who robbed him. We find his identification to be reliable after applying the balancing test established in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), for determining the admissibility of identification evidence.

The defendant also strongly argues that because witness Coggins altered his testimony regarding whether he identified a front-view or side-view photograph this makes the evidence of the pretrial identification unreliable, and therefore inadmissible. True, Coggins initially testified that he identified a side-view photograph of the defendant. Later, Coggins testified that it could have been a front-view picture of the defendant which he selected. This conflict or alteration was challenged by defense counsel in his cross examination of Coggins. “The danger that initial identification by photograph may result in misidentification may be substantially lessened by course of cross examination at trial which exposes to the jury the method’s potential for error.” Simmons v. United States, 390 U.S. 377 at 384, 88 S.Ct. 967, at 971, 19 L.Ed.2d 1247. The discrepancies or contradictions in Cog-gins’ testimony are factors bearing on the credibility of the witness and concern the weight and probative value to be given his testimony by the jury. These factors do not concern the admissibility of Coggins’ testimony. Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944); Ward v. State, 356 So.2d 238 (Ala.Cr.App.), cert. denied, Ex parte Ward, 356 So.2d 242 (Ala.1978).

II

The defendant argues that without the “mug book” identification there is insufficient evidence to support his robbery conviction. This argument is without merit. The pretrial and in-court identifications were properly admitted into evidence. Additionally, State’s witness, Ms. Ruby McClure, testified that on the day of the robbery she saw the defendant and another man fleeing from the general direction of the jewelry store with a black bag. Cog-gins kept some of his jewelry in black bags. Willie McCarthy testified that on the day of the robbery he was near Coggins Jewelry and heard glass break. After hearing the glass break, Mr. McCarthy said that he saw the defendant and another man run from Coggins Jewelry Store. Later, he said the defendant’s companion gave him a ring. There was also testimony by George Mit-chum that the defendant’s companion said, in the presence of the defendant, “How about robbing something” and suggested the jewelry store. Evidence was presented that the defendant left the state very soon after the time of the robbery and sold jewelry and rings in Georgia, Virginia and New York. Therefore, even without the eyewitness identification, there is sufficient circumstantial evidence to justify the defendant’s conviction. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

Ill

The defendant argues that error was committed in the admission of the handwritten notes of a police officer of an oral statement given by the defendant. The defendant contends that the notes should not have been admitted into evidence because they were not dated and because they did not contain everything the defendant related in his statement.

Both of these arguments affect the credibility and weight to be given the statement of the defendant but do not limit its admissibility.' A statement is not rendered inadmissible simply because it is not verbatim as related by the accused. King v. State, 355 So.2d 1148, 1150 (Ala.Cr.App.1978).

Tuskegee Police Officer Otto Moore completed an “Alabama Uniform Incident/Offense Report Supplement” detailing an oral statement given him by the defendant. On appeal the voluntariness of this statement is not questioned. Our review convinces us that the statement was properly admitted into evidence under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after the State had satisfied the constitutional criteria for volun-tariness.

Officer Moore testified that not everything the defendant said was contained in his report and that the report was not a verbatim copy of what the defendant told him. Before the report was offered into evidence, Officer Moore used it in testifying. Defense counsel also used the report in his cross examination of Officer Moore.

While the record is not without some confusion in this regard, as to whether defense counsel objected to the admission of Officer Moore’s report (State’s Exhibit 2) or to a document only identified in the record as State’s Exhibit 3 and never admitted into evidence, it is clear that when the State finally offered Officer Moore’s report into evidence there was no objection. Without an objection and an adverse ruling, the defendant cannot complain and this Court has nothing to review. Harris v. State, 347 So.2d 1363 (Ala.Cr.App.), cert. denied, 347 So.2d 1368 (1977). Moreover, we fail to see how the admission of the report could have prejudiced the defendant as the contents of that document had been fully revealed to the jury prior to its admission. Rule 45, A.R.A.P. See also Kelley v. State, 366 So.2d 1145 (Ala.Cr.App.1979).

A careful search of the record reveals no error prejudicially affecting the substantial rights of defendant. The judgment of conviction is affirmed.

AFFIRMED.

All Judges concur.


text:
    James Edward TURNER v. STATE of Alabama.
    8 Div. 403.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-233.
    J. N. Powell, Jr., Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

James Edward Turner was indicted for and found guilty by the jury of the first degree murder of Charles White, by “shooting him with a shotgun and/or a pistol.” The jury’s verdict and the judgment of the trial court set sentence at life imprisonment.

The appellant prosecutes this appeal from the trial court’s denial of his motion for a new trial largely on the grounds that the evidence was insufficient to sustain the verdict.

On January 27, 1979, appellant’s wife and, later, the appellant also, had arguments with the deceased, Charles White, in a local “club” in the presence of several witnesses, including the appellant’s daughter. During appellant’s argument with the deceased, both men drew pistols and held them at their sides. As a result the appellant and his wife were asked by the owner to leave the “club”.

When they had reached appellant’s truck outside and appellant had had time to retrieve his .12 gauge shotgun from within, appellant’s daughter, who had left the “club” earlier, and appellant’s son arrived in separate vehicles. Appellant’s daughter was armed with a shotgun and his son was armed with a pistol.

Soon after appellant’s children arrived, Mr. White appeared at the exit of the “club”. After words were exchanged, the appellant fired two shotgun blasts and his son fired several rounds from his pistol at Mr. White.

Both weapons inflicted severe wounds to various areas of Mr. White’s body. He died as a result of these wounds.

I

Appellant’s sole contention here is that the prosecution did not sustain its burden of proof that Mr. White’s death was caused by the shotgun wounds inflicted by the appellant. In the absence of such proof or evidence that appellant conspired with his son, whose shots also allegedly caused the fatal wounds, appellant asserts that his conviction cannot stand.

We have reviewed the evidence in this ease and have found same to be sufficient to support the jury’s guilty verdict on either of two theories, i.e., that the wounds inflicted by the appellant were indeed a contributing cause of Charles White’s death or that appellant, by his words or actions, encouraged his son to fire the fatal shots, culminating in death.

While it is true that the only expert witness as to “cause of death” testified that the primary cause of death was the pistol wound inflicted by appellant’s son, this same witness stated that the shotgun wounds inflicted by appellant were a “contributing cause” because the victim had bled to death.

Our cases explain that to support a murder conviction the unlawful act of the accused need not be the sole cause of death. Flanagan v. State, 369 So.2d 46 (Ala.Cr.App.1979), and cases therein cited. All that is required is that the jury be convinced from the evidence that the wounds inflicted by the accused were dangerous and contributed to or accelerated the death of the deceased, even if they are not convinced “that death would have inevitably followed from” those wounds alone. Mitchell v. State, 43 Ala.App. 427, 191 So.2d 385 (1966); Flanagan, supra.

The jury here might well have believed that the bleeding caused by the shotgun wounds inflicted by appellant accelerated the victim’s death.

Moreover, even if they were not convinced that the injuries inflicted by appellant contributed to Mr. White’s death, the jury had sufficient facts before them to conclude that the appellant aided and abetted his son in this same shooting. This determination of appellant’s actual participation in the incident was one properly put to and resolved by the jury. Ferguson v. State, 134 Ala. 63, 32 So. 760 (1902); Dubose v. State, 50 Ala.App. 652, 282 So.2d 91 (1973).

The jury may also have been persuaded by the circumstantial evidence that appellant, through his daughter, conspired with his son before the shooting. Ferguson v. State, supra; Robinson v. State, 222 Ala. 541, 133 So. 578 (1931). Alternatively, they might have determined that appellant’s conduct at the time of the shooting encouraged his son to shoot at and kill the deceased. Thomas v. State, 130 Ala. 62, 30 So. 391 (1901); Maloy v. State, 8 Ala.App. 73, 62 So. 961 (1913); Dubose v. State, supra; Sankey v. State, 380 So.2d 354 (Ala.Cr.App.1980).

In either event, such participation by the appellant would make him criminally responsible for the victim’s death. Thomas, supra; Robinson, supra.

For the above stated reasons, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    John Samuel BLEDSOE v. STATE.
    8 Div. 519.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81 — 239.
    Steven E. Haddock of Aldridge & Haddock, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of the possession or utterance of a forged check, “with intent to defraud” and “having knowledge that said instrument was forged in violation of Section 13A-9-6 of the Code of Alabama.”

A major contention of appellant is that the trial court erred in overruling defendant’s objections to the testimony of witnesses that during the same month of the commission of the alleged crime in the instant case, the defendant was in possession of and uttered three forged checks which purported to be checks of the same drawer and drawn on the same bank as the check in the instant case. To so hold would be in conflict with what has been held in many cases, including Preyer v. State, Ala.Cr.App., 369 So.2d 901 (1979); Christison v. State, 41 Ala.App. 192, 142 So.2d 666 (1960), aff’d 273 Ala. 564, 142 So.2d 676 (1962); Kirby v. State, 17 Ala.App. 151, 82, So. 641, cert. denied, 203 Ala. 473, 83 So. 416 (1919); and Williams v. State, 126 Ala. 50, 28 So. 632 (1900).

“The crime of forgery in Alabama has, as its crucial element, a requisite intent on the part of the defendant to defraud. As tending to prove this intent, the State is allowed to introduce evidence that the accused forged other paper of a similar kind, at or about the time of the commission of the charged offense, which purported to have been executed by the same person.” Gamble, McElroy’s Alabama Evidence, § 70.01(11) (1977)

As the unlawful possession or utterance of a forged instrument requires the same kind of an intent, the intent to defraud, as the crime of forgery, it follows that the evidence as to the other incidents was properly admitted, as an exception to the general rule of exclusion of the commission by the defendant of other crimes.

Upon the conviction of defendant, the State gave due notice that it would proceed against defendant under the Habitual Felony Offenders Act, Code of Alabama, 1975, § 13A-5-9. A sentencing hearing was set and conducted, which resulted in evidence of three previous convictions of forgery about a year before the alleged crime here involved and a sentence to imprisonment for fifteen years.

The only other contention on appeal is that at the time of the previously committed felonies appellant “was under the age of 21 years and entitled to make application for the benefits of the Youthful Offender Act, Code of Alabama 1975, § 15-19-1, et seq.” and that the “State’s evidence ... failed to disclose any ruling upon the appellant’s petitions for Youthful Offender adjudication.”

In addition to oral evidence on the subject, there was introduced in evidence a certified copy of the judgment of the court in each of the three previous cases, which contains a comprehensive recital of the acknowledgment by defendant and his attorney in writing, and by colloquy in open court, that defendant voluntarily, knowledgeably and understandably desired to withdraw his previous plea of not guilty and enter a plea of guilty, which the court accepted.

The record before us shows that there was an effort by the attorneys at the sentencing hearing to arrive at a stipulation as to what occurred as to any application for treatment as a youthful offender in any of the three previous cases, but that they could not agree on a stipulation. During the colloquy among the court and the attorneys, counsel for defendant said that he “would ask the Court to take judicial notice and we would concur with the State’s notice that a Y.O. petition was filed on about March 1st of 1979 and the Court did not rule on that application.” Soon thereafter the court said:

“Now just for the record I see that — just a minute, I am trying to find a date on this thing somewhere. There was a plea of guilty before there was any ruling on it, but that’s — I don’t think that would bar proceedings under this statute anyway.”

In an effort to support his contention that in the three previous cases there was an application by defendant for youthful offender treatment that was never acted upon by the court, appellant resorts to Rule 10(f), ARAP and requests that “this Court enter an order directing the Clerk of the Circuit Court to certify a supplemental record containing copies of said omitted petitions for youthful offender benefits.” In response to this portion of appellant’s brief, appellee says in part in his brief:

“However, as of this time the State has not received the supplemental transcript which would reflect this fact. In light of this fact the State would request permission to address this issue in a supplemental brief within a reasonable time upon receipt of the supplemental transcript.”

We see no basis for the application of Rule 10(f) to the present situation. The “omitted petitions for youthful offender benefits” were never in the record of the instant case. Rule 10(f) contemplates material that is in the record of the case in the court below but is omitted from the record or transcript on appeal. Although the petitions for youthful offender benefits appear to be a part of the official records of the same court as the court from which the appeal in this case arose, they are not records in the same case as the casé now before us. We make this observation as to appellant’s request based on Rule 10(f) to assure him that we have not overlooked it. It does not constitute a reason for our disagreement with his contention that his three previous felony convictions were insufficient to furnish a basis for the application of the Habitual Felony Offenders Act. We now discuss that contention on its merits.

We agree with appellant’s assertion that the trial court owes an affirmative duty to apprise an accused youthful offender of the benefits of the Youthful Offender Act. Morgan v. State, 291 Ala. 764, 287 So.2d 914 (1973); Whitfield v. State, 56 Ala.App. 653, 324 So.2d 793 (1975); Clemmons v. State, 294 Ala. 746, 321 So.2d 238, aff’g Ala.Cr.App., 321 So.2d 237 (1974); Pride v. State, 55 Ala.App. 575, 317 So.2d 541 (1974), aff’d 294 Ala. 359, 317 So.2d 542.

We do not agree with appellant’s apparent contention that in the cases in which appellant had been previously convicted it was obligatory upon the trial court to rule on any application therein for benefits of the Youthful Offender Act before acceptance of a guilty plea. Such contention overlooks the essential proviso of the Youthful Offender Act that he cannot “be investigated and examined by the court to determine whether he should be tried as a youthful offender” unless “he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him.” Code § 15-19-l(a). Neither in the trial court nor on appeal do we find any contention of defendant-appellant, or his attorney, to the effect that he was not fully advised by the trial court as to the benefits affordable to him under the Youthful Offender Act prior to the acceptance by the trial court of his pleas of guilty in the three previous felony cases. The apparent fact that his attorney had filed in each case an application for youthful offender status indicates that he had been informed of such benefits. Under these circumstances, we can only reasonably conclude that in interposing his plea of guilty, after he had previously pleaded not guilty, he voluntarily, knowingly and intelligently abandoned, or impliedly withdrew, his application for treatment as a youthful offender.

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

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

AFFIRMED.

All the Judges concur.


text:
    Phinest HALL v. STATE.
    1 Div. 298.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-214.

      Christopher Knight, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

On his plea of guilty the defendant was convicted and sentenced to ten years’ imprisonment for the crime of sexual abuse 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. See also Blow v. State, 49 Ala.App. 623, 274 So.2d 652 (1973).

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

REVERSED AND REMANDED.

All Judges concur.