text:
    Frank COLLINS v. STATE.
    4 Div. 808.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Rehearing Denied Nov. 25, 1980.

      Randy C. Brackin, of Martin & Brackin, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

Appellant-defendant was indicted for possession of marijuana and was found guilty of possession of marijuana for his personal use. The one is a felony, the other a misdemeanor. Code of Alabama 1975, § 20-2-70. The jury fixed his punishment at a fine of $200.00; the court imposed additional punishment of imprisonment in the county jail for twelve months and sentenced him accordingly.

On October 25, 1979, officers obtained a search warrant to search 215 West North Street, Dothan. When they arrived Cathy Russaw and a couple of small children were there. After a short time from the commencement of the search, the defendant came to the house. The building at 215 West North Street was owned by and was physically connected to Hawk’s Funeral Home, which apparently had an address on another street. There was some testimony that a girl by the name of Dorothy Poke was living at the house. Pursuant to the warrant, the officers conducted the search about 3:30 P.M. on the day the warrant was obtained. In the course of the search, marijuana was discovered and seized. There was evidence, in addition to that narrated above, pertinent to the question of the validity of the search warrant which need not be stated, as the only point made by appellant as to the validity of the warrant and the search made pursuant to it is to the effect that, under the circumstances in the case, the description of the building or place to be searched as 215 West North Street, Dothan, Alabama, was insufficient. Pursuing the point, he stresses the fact that the particular building was physically connected with Hawk’s Funeral Home and relies upon United States v. Hinton, 219 F.2d 324 (7 Cir. 1955) and Hutto v. State, 50 Ala.App. 636, 282 So.2d 75. In Hinton the property was described by street number, at which described place was a building with four separate residential units. In Hutto the premises were described by a number on a named street in Auburn, Alabama, and as a white block building on the southeast corner of the intersection of the named street and a named avenue in the same city. The court said at 282 So.2d 81-82:

“It is apparent that the premises in question were being occupied by both commercial and residential tenants. The officers seeking the search warrant and the Inferior Court Judge issuing the warrant were aware of this. It is equally clear that the building in question was not being used as a ‘one family residence’ and that the person named in the affidavit and warrant was the ‘original lessee’ who no longer occupied any of the premises, and in fact such had been subleased. It is therefore clear that the affidavit and warrant are both invalid as failing to provide a more definite description of the subunit of the building sought to be searched, or of the room number within the said premises sought to be searched. Moreover, neither the affidavit nor warrant identifies the premises as being under the control of either the appellant or of the sublessee who in fact had control of the whole premises. Because of these deficiencies, we are of the opinion that the trial court committed error in not granting the motion to suppress the affidavit and warrant. See Annotation, 11 ALR3d 1330, et seq.”

The building and premises searched and described in the affidavit and warrant in the instant case cannot be likened to the building and premises involved in either Hinton, supra, or Hutto, supra. On the contrary, in the instant case the only physical connection between the building that housed the funeral home and the building searched and described as 215 West North Street, Dothan, Alabama, was the outside structure or connecting wall between the two buildings. There was no inside hall, stair, or other passageway between the two buildings. The building searched was not a plural-unit building. The evidence shows that it was designed and used as a single-unit residence, even though there is evidence to the effect that it had been used for traffic in drugs. The trial court was correct in overruling defendant’s motion to suppress the evidence of the fruits of the search.

A more difficult question is presented by appellant’s only other insistence on a reversal in which he urges that the trial court erred in overruling defendant’s motion to exclude the State’s evidence that he submitted when the State rested, in refusing defendant’s affirmative charge written after all evidence had been introduced, and in overruling defendant’s motion for a new trial. There was hardly any dispute in the evidence; some of it has already been summarized. Appellant does not contend that marijuana was not found in the building at 215 West North Street; he contends that he did not possess it.

At the time the motion to exclude the State’s evidence was submitted, the only evidence, if any, tending to connect defendant with the possession of the marijuana, consisted of the testimony of Officer Lamar Hadden, an experienced employee of the Alabama Beverage Control Board. He testified that he and Agent Blount arrived at 215 West North Street about 3:30 P.M., October 25, 1979, and served the search warrant on Cathy Russaw. Defendant was not there at the time but the witness saw him “across the street, in front of the Capri Club.” After serving the search warrant, the witness went to the living room, “checked all the rooms first to see if anybody else was there,” came “back up into the back bedroom and looked in it and couldn’t find anything” and then “went to the front bedroom.” While making the search in the front bedroom, he found “a woman’s purse or just a tote bag” and in the purse he found some “Middleton Cherry Pipe Tobacco, a five dollar bag of marijuana” and “some keys.” Defendant had come into the house about “ten or fifteen minutes” after the officers arrived at the house, but he stayed in the living room while Officer Hadden conducted the search in the bedrooms. After fully warning and advising defendant and Cathy Russaw as tó their constitutional rights, they interrogated defendant as to the contents of the purse or “tote bag.” The witness further testified:

“A. The purse in one hand and all the contents were still in the little bag. And I pulled the tobacco out and asked whose it was and Frank [defendant] said it was his tobacco. And I pulled the brown paper sack out of there, the brown bag, envelope [which contained marijuana] and asked him whose that was. And he said I don’t know.
“Q. Did you ask Cathy Russaw?
“A. Yes.
“Q. Did you ask either one of them whose purse it was?
“A. No. I don’t think I did.”

Officer Hadden further testified that after confronting defendant with the purse and its contents, he left defendant and went to the back part of the house, searched in the kitchen and found four small bags and their contents like the bag and contents found in the purse or “tote bag,” in the top part of a “hot-water heater.” The heater was about three feet high; the lid of the heater was loose, and he found the bags and their contents underneath the lid when he lifted it. Upon asking Cathy Russaw and Frank Collins about what he found in the heater, they “denied knowing anything about it.”

According to further testimony of Officer Hadden, he had watched the particular house for about two weeks before it was searched. During that time he saw defendant “go to and from the house” several times. He also saw “a lot” of “other people come and go from this house.” Men’s clothing, as well as women’s clothing and children’s clothing, was in the house. A .22 caliber sawed-off rifle was in the house. There was no marijuana smoke or odor in the house that the witness could detect. Defendant was asked if he “stayed” at the house, and his response was that he did. Before the officers left the house, they placed defendant and Cathy Russaw under arrest. As they were all leaving the house, the defendant stated that “he had to get the keys if they were going to lock the house up.” Thereupon he went to the purse or “tote bag” and obtained the keys that were in the bag, put the keys in his pocket and locked the front door. It was a padlock on a hasp, for which no key was needed to close the lock.

At the time the State rested, there was some evidence that either Cathy Rus-saw or defendant knowingly possessed the bag of marijuana found in the purse. The two had been indicted jointly, but the instant case was severed from the case against Cathy Russaw. It seems that if the two defendants had been tried jointly, neither would have been entitled to a favorable ruling on a motion to exclude the evidence. A prima facie ease would have been presented against both, even though the evidence would have been weak and inconclusive as to each. Similar reasoning leads to a belief that the court was not in error in overruling defendant’s motion to exclude the evidence.

Defendant did not rest his case until after he, his mother and Cathy Russaw had testified. Whether true or not, their testimony was undisputed and shed light not previously seen on the question of the identity of the person or persons who possessed the marijuana.

The defendant testified that on the afternoon of October 25, 1979, he was at a club across the street from 215 West North Street when his attention was called to two men entering the house. He said he lived there “every now and then, you know.” Someone told him that one of the men that entered the house was a narcotics officer. In about five minutes, he went over to the house. He denied knowing that there was any marijuana in the house at the time. He admitted having smoked marijuana at times with Cathy Russaw. He said that one of the officers showed him Cathy’s pocketbook and asked him if the marijuana that he found there was defendant’s. He further said:

“Q. Did you say the marijuana was yours or was not yours?
“A. I said it wasn’t mine. He asked me did I know whose it was and I said naw.
“Q. Do you know if there was any marijuana in that house?
“A. No, I didn’t.”

He also said that when Officer Hadden asked him if the tobacco that was in the pocketbook was his, he answered that “it wasn’t.” He said he smoked cigarettes and sometimes cigarettes would contain pipe tobacco. He said that he slept in the room where the marijuana was found on the night before. He denied that he obtained any keys from the purse and locked the door to the house after he and Cathy were arrested. He said there was no key or lock to the house.

Cathy Russaw testified that she was living and renting the premises at 215 West North Street on October 25, 1979; that a girl named Dot Poke, eighteen years of age, also lived there. She said that defendant was not living there, but that occasionally he would spend the night with her; that he did not have a key to the house; that when the officers arrived no one was in the house but the witness and her two children. She testified:

“Q. Okay. Where was your purse? Do you know where your purse was at the time that the officers found it?
“A. Yes. Laying on the end table in our bedroom.
“Q. Okay. Was there some marijuana in that purse?
“A. Yes.
“Q. Was it yours?
“A. Yes.
“Q. Did you see the police officer later find four packages, four small envelopes in the kitchen in the house?
“A. I didn’t see them find it, I was sitting in the front room.
“Q. Did he tell you that he found it?
“A. Yes.
“Q. Do you know where those packages came from?
“A. No.
“Q. Okay. Did he show you any green vegetable material or marijuana?
“A. No.
“Q. Okay. Did, to your knowledge, did Frank know anything about the marijuana that was in the house?
“A. No, sir. Not that I know of.
“Q. Did you admit your guilt to possession of marijuana for your own personal use in this case?
“A. Yes, sir.
“Q. Did you agree to pay a two hundred dollar fine?
“A. Yes.
“Q. Have you ever seen Frank Collins sell any marijuana or any controlled substance?
“A. No.”

On cross-examination, she testified:

“Q. Did he ever have any tobacco over there?
“A. We had some tobacco.
“Q. What kind of tobacco?
“A. I don’t remember the name of it. “Q. Didn’t he have some?
“A. Pipe tobacco?
“Q. Yes. Did he? Didn’t he have some Middleton Cherry Blend Pipe Tobacco? “A. The tobacco belonged to me.
“Q. The tobacco belonged to you?
“A. Right.
“Q. All right. Let’s go to the night of October 24. Did he spend the night with you that night before the arrest?
“A. Yes, he did.
“Q. Okay. Did he stay over at your place that day, the day of the arrest? “A. No, he didn’t.
“Q. When did he leave?
“A. He left that morning.
“Q. About what time?
“A. It was about 7:30.
“Q. Was he across the street that morning?
“A. I don’t know.
“Q. He was across the street that afternoon though, wasn’t he?
“A. Yes.
“Q. Okay. And he had been across the street for some time that afternoon prior to the officers coming? Is that right?
“A. Yes.
“Q. Okay. Since shortly after noon time, is that about right?
“A. Yes.
“Q. Didn’t Frank say that it was his pipe tobacco?
“A. I don’t remember saying anything. I wasn’t paying any attention.
“Q. Do you remember the officer asking who owned the marijuana?
“A. Yes.
“Q. Do you recall that Frank said that it was not?
“A. Yes.
“Q. And do you recall that you said that you did not?
“A. Yes.
“Q. And when you all were arrested and Frank . .. you all got ready to leave Frank went back in and got the keys out of that tote bag, didn’t he? and locked the house up?
“A. I didn’t have any keys.
“Q. Do you deny that?
“A. I didn’t have a lock then. I had lost it. And I usually left my door open for my roommate, because she didn’t have a key, either.
“Q na Where had you gotten that marijua-from?
“A That I had in my purse?
“Q Uh-huh. That you said was yours?
“A I bought it out there in the street.
“Q. Who did you buy it from?
“A. I don’t remember his name.
“Q. How long before October 25th did you buy this marijuana?
“A. I had just bought that that night.
“Q. How many marijuana cigarettes do you smoke a day?
“A. I smoke about two a day.
“Q. Two a day?
“A. Uh-huh.
“Q. Does that keep you pretty high?
“A. Yes, sir.”

The mother of defendant had no personal knowledge of what occurred at 215 West North Street. Although she lived within a block of it, she had never been in the building and was not acquainted with Cathy Russaw. She testified that in September 1979 defendant and his wife separated. She said:

“Q. After the separation, did he start living with you?
“A. Yes. He moved back home.
“Q. Okay. And has he been living in your house ever since that time?
“A. Well, partly.
“Q. Okay. Now, has he left his clothes there and all his belongings?
“A. They are still there.
“Q. In October, did he have his belongings there?
“A. Yes.
“Q. Okay. Now, in September, did he start staying all night there at your house with you?
“A. Yeah, for a while he did.
“Q. Okay. For a while. After that, did he start staying out some nights?
“A. Yes.
“Q. But, he kept all of his belongings at your house?
“A. Yes.
“Q. And he got his mail there, didn’t he?
“A. Yes.
“A. He comes every day and changes clothes, takes a shower and changes clothes. Sometimes I be at work, but when I would come in from work, I would notice he had come in and took a shower and changed. I did his washing.
“Q. Every last bit of clothing he had was at your house in October we are talking about?
“A. I think so, because they are hanging in the closet now.
“Q. Now, October 25th, that was the day he was arrested. Do you remember that day?
“A. Yes, I remember that day. He was there with me all day that day. But, he had been left I guess about forty-five minutes when he called from downtown. He had been arrested.
“Q. What time did he call from downtown?
“A. Well, I’m not for sure, but it was after 4:00 o’clock, I know.
“A. He wasn’t working then. He was working, you know, the first of October and off and on. You know, because he got hurt on the job and he was off of work.
“Q. Do you work during the day?
“A. Yes. But, I was sick that week and I didn’t work that week.
“Q. Did you feed him every day?
“A. Yes, still do. Still do.
“Q. Do you happen to remember that specific week, October 25th, if he stayed or spent the night at your house once, twice or no times?
“A. I don’t think he did. I don’t remember. I don’t think so.
“Q. Did he ever tell you where he was staying.
“A. No.
“Q. Did he ever tell you who he was seeing?
“A. No. I never asked him.
“Q. Were there other weeks that he would stay the whole week?
“A. No. He never stayed a whole week at my house, you know, the whole week. In the first of September he did, but in October he didn’t stay, you know, the whole week.”

There was unquestioned documentary evidence that on August 27, 1979 Cathy Rus-saw paid the city of Dothan the sum of $50 as a deposit for “water, lights, power or current consumed” and that she continued as a customer of record until February 1980. The trial was in March of that year.

We must conclude from all the circumstances stated that the status of the defendant as to the premises upon which the marijuana was found was not that of one in exclusive possession or control thereof and that there can be no reasonable imputation to him of the kind of possession or control that is often imputed to a husband or father as the head of a household.

The appellee contends: “The evidence shows that Appellant exercised the dominion and control necessary to prove his constructive possession of the marijuana. . . . Appellant asserted control over both the premises and the marijuana.” We do not agree. In support of the contention, appel-lee relies upon Cook v. State, Ala.Cr.App., 341 So.2d 183, 184 (1977), in which it is stated.

“It is obvious that the appellant was not in actual possession of the contraband. The State argues that the appellant had constructive possession of the substances. Three elements essential for proof of possession of contraband are set out in DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406, cert. denied, 295 Ala. 399, 323 So.2d 411 (1975). These elements are:
“ ‘. (1) actual or potential physical control (2) intention to exercise dominion and (3) external manifestation of intent and control. . . . ’ ”

It is obvious in the instant case that defendant did not have the actual physical control of any of the five bags of marijuana involved in this case.

In arguing that defendant had potential physical control, the intention to exercise dominion and that there were external manifestations of intent and control, appel-lee states:

“Prior to the day of the arrest, State ABC agents observed on several occasions the Appellant going into or coming from the premises where the drugs were found.... Agent Hadden saw him standing in front of the Capri Club across the street. Ten or fifteen minutes after the search commenced, Appellant went into the house without being beckoned by Agent Hadden or Ms. Russaw.. .. The fact that he went into the house without having been summoned manifested his intent to exercise dominion and control.”

Argument is reasonable that evidence to the effect that for about two weeks prior to his arrest appellant had been observed on several occasions going into or coming from the premises would under some circumstances, circumstances entirely different from those shown by the undisputed testimony of witnesses for the defendant, furnish the basis for an inference that he had “potential physical control” of the premises and property therein, whether legal or contraband, but from the evidence as a whole in the instant case there is no reasonable basis for such an inference. The fact that he exercised control over Cathy Russaw at times in the special repeated relations shown by the evidence was not necessarily a concomitant with the control by him of her as to anything else that she possessed or as to any other activity in which she engaged. It is likewise not reasonably tenable, we think, that defendant “manifested his intent to exercise dominion and control” by his standing in front of the Capri Club across the street when the officers arrived and after about ten or fifteen minutes he went into the house without being beckoned by Agent Hadden or Ms. Russaw. Appellee further says that appellant’s action in getting the keys from the “tote bag” and locking the house “demonstrated his potential control over the marijuana and his actual control over the premises.” These items emphasize appellant’s continuing special interest in Ms. Russaw, but they do not extend the borders of that special interest.

Appellee further states:

“Appellant’s status on the premises was not left to conjecture.”

We agree. He was neither a tenant, a joint-tenant, a boarder, a roomer, a business visitor nor a trespasser. He was a bare licensee and was limited in control and dominion to the area of his license.

Our attention has not been called by either party to any case that can be said to be a certain precedent for a definite determination of whether the evidence as a whole was sufficient to justify the submission of the issue of guilt vel non to the jury. However, of great value on the question is the opinion of Judge Bowen in Temple v. State, Ala.Cr.App., 366 So.2d 740 (1979), wherein he sets forth the controlling principles of law and a review of a substantial number of cases that make clear the solid establishment of such principles. Both parties call on Temple, supra, for support of their respective contentions.

In Temple, supra, the controlled substance (cocaine) was found in a packet in the freezer compartment of the refrigerator in defendant’s home while defendant was at work. The defendant testified that he had no knowledge of the presence of the cocaine, that his kitchen had been recently remodeled and that several workmen had access to the refrigerator. The case is a precedent, we think, for holding that a jury question was not presented in the instant case as to the four packets of marijuana found in the top of the hot-water heater in the kitchen. There is no evidence whatever that the appellant herein had access to the area of the kitchen, particularly the hot-water heater therein. As to that marijuana, the State’s case fails utterly.

As to the packet of marijuana found in the purse of Ms. Russaw on the table in the bedroom that had been jointly occupied by her and the appellant the night before, there is an obviously closer connection with appellant than that of the marijuana found in the hot-water heater, but, as previously indicated, the direct evidence as to the question of his knowledgeable possession of the marijuana in the purse was all in favor of defendant. Furthermore, there was some circumstantial evidence in his favor. The particular packet of marijuana, as well as the four packets in the hot-water heater, was sealed. None of that marijuana had ever been used. The evidence to the effect that defendant had smoked marijuana with Ms. Russaw cannot be correctly directed to the marijuana to which the prosecution is referable. Undisputed evidence was to the effect that there was no odor of marijuana on the premises when the search was made; no ashes, no litter, no telltale signs of smoking of marijuana by defendant and Ms. Russaw were observed. But for evidence for the State, which defendant denied, to the effect that defendant admitted that the tobacco in the purse was his and that defendant took keys to the house from the purse and locked the door as he and Ms. Russaw were escorted therefrom, the conclusion follows, we think, that a jury question as to defendant’s guilt was not presented and that he would have been entitled to the affirmative charge in his favor. No such reasonably certain conclusion, however, can be reached upon a consideration of that particular evidence, which appellee contends constitutes incriminating circumstances that together with the other evidence in the case justified a refusal of the requested affirmative charge in favor of defendant. We are not now required, however, to decide that question, as shown by that which follows.

Defendant’s motion for a new trial should have been granted, in our opinion. It was filed on April 10, 1980, within thirty days from the judgment of conviction and sentence, was duly continued for hearing to May 5, 1980, and on that date it was overruled. However correct the contention of the State as to the sufficiency of the evidence to justify a submission of the issue of guilt to the jury, the weakness of the State’s case is manifest. By this it is not meant that defendant was innocent of the possession of marijuana at times when he was in the premises at 215 West North Street while staying with Cathy Russaw there, but he is not guilty in the instant case unless he knowledgeably possessed the particular packet of marijuana that was found in Cathy Russaw’s purse. As to such marijuana, the State has charged in the indictment that he and Cathy Russaw possessed it. She has admitted that she did so, and she has pleaded guilty to the misdemeanor of possession of marijuana for personal use.

Although there was a conflict between the evidence for the State and the evidence for the defendant as to whether defendant denied his ownership of the tobacco found in the purse and as to whether he took the keys out of the purse and locked the door, such conflict is not sufficient to justify an affirmance of the judgment. After giving the trial court the favorable presumption to which it is entitled in overruling defendant’s motion for a new trial, we are convinced the verdict of the jury is so contrary to the weight of the evidence that it is palpably wrong and unjust. This requires a reversal of the judgment and a remandment of the cause. Washington v. State, 274 Ala. 386, 148 So.2d 206 (1962); Smith v. State, Ala.Cr.App., 342 So.2d 422 (1977); Barker v. State, 55 Ala.Cr.App. 322, 315 So.2d 129, cert. denied 294 Ala. 752, 315 So.2d 130 (1975).

Notwithstanding our expressed concern as to the question whether the evidence was sufficient to warrant the submission to the jury of the issue of defendant’s guilt or innocence, we leave that question unanswered by us at this time. We deem it to be in the interest of justice for the State to determine whether it will continue the prosecution of this case and, if so, for the trial court to pass upon any question presented by defendant as to double jeopardy by reason of the past trial and any questions presented by defendant as to the sufficiency of the evidence, in any future trial, to justify a submission to the jury of the issue of defendant’s guilt or innocence. In the event of another trial and a conviction and an appeal therefrom, an adequate opportunity will then be afforded for the appellant to raise again the issue that is now left undecided.

The judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur.

      . The statute provides “for his personal use only.” Code of Alabama 1975, § 20-2-70. Although not essential to a correct determination of this appeal, an apparent incongruity is to be observed in the possession of a particular small amount of marijuana for a person’s “personal use only” and the possession of the same marijuana at the same time by another person for his or her “personal use only.”


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Richard F. BRIDGES v. STATE.
    4 Div. 836.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.

      Dow T. Huskey, of Huskey & Etheredge, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for grand larceny. Sentence was fourteen months’ imprisonment which was suspended. The defendant was placed on unsupervised probation.

I

Initially, it is alleged that the trial judge committed reversible error in refusing to allow defense counsel to cross examine prosecution witness Jud Colley about a civil action he had instituted against the defendant.

The grand larceny charged in the indictment involved a theft of a waste oil processor, alleged to be “the personal property of Mary Chevrolet Company, Inc.” Colley was the president of Mary Chevrolet and had filed a civil action for damages against the defendant based on the defendant’s taking of the waste oil processor.

Defense counsel sought to prove that Mary Chevrolet did not own the waste oil processor by attempting to cross examine Colley about the civil action. At trial defense counsel did not contend that he was attempting to show bias by the disclosure of the civil action. To show bias, testimony concerning the civil suit would have been admissible. Brooks v. State, 393 So.2d 486 (1980); Green v. State, 258 Ala. 471, 64 So.2d 84 (1953).

However, the fact that a civil suit was pending against the defendant was irrelevant and without probative value to prove who owned the waste oil processor. The general rule is:

“It is not, however, permissible to introduce in evidence civil judgments or decrees rendered against the defendant, even though they involve the same matters on the trial of a criminal prosecution, for the obvious reason that the judgment or decree in the civil action may have been rendered on a state of facts totally irrelevant in the criminal case, and on a different rate of the measure of proof. It is quite probable, also, that the defendant might be civilly, but not criminally, liable, nor is there a mutuality of parties. The proceedings are totally different, and such judgments and decrees are not admissible as a general proposition. Britton v. State, 77 Ala. 202.”
Wall v. State, 2 Ala.App. 157, 169, 56 So. 57 (1911).

In Hill v. State, 366 So.2d 296, 314 (Ala.Cr.App.1978), affirmed, 366 So.2d 318 (Ala.1979), this Court held that in a prosecution in which the defendant was convicted of first degree manslaughter of a person fatally injured in an automobile accident, the restriction of the defendant’s cross examination so as to exclude evidence of a pending wrongful death action, w'hich was brought against the defendant and which arose from the same facts as the criminal case, was not error.

Here the trial judge refused to allow defense counsel to go into the matter of any civil action against the defendant unless the relevancy of that case could be established. At trial defense counsel’s sole contention for the relevancy of the civil suit was to “show who actually owned this piece of machinery.” The trial judge did not limit defense counsel from showing ownership in any other manner:

“THE COURT: Let me see if I can’t clarify it. If you want to get into the ownership and possession of this thing, I think you can ask him a — questions relevant or relating to the contract if you want to, but as far as any pending suits, I don’t think you can ask that.”

We find no error in the action of the trial judge. The pending civil suit against the defendant simply had no probative value to the issues involved in this criminal action although both civil and criminal actions arose out of the same facts.

As stated, nowhere in the record does defense counsel contend that he was trying to show the bias of the witness by showing that he had filed a civil action for damages against the defendant. This contention is made for the first time on appeal. A defendant is bound by the objection which he asserted at trial. Franklin v. State, 357 So.2d 364 (Ala.Cr.App.), cert. denied, Ex parte Franklin, 357 So.2d 368 (Ala.1978). Only those grounds of objection presented to the trial court can serve as a basis for a reversal of its action. Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976).

II

The defendant also contends that the trial court erred in permitting the State to cross examine the defendant, over objection, on the amount of money the defendant had raised through a corporation (Oil Salvage Manufacturing, Inc.) from the sale of “exclusive territories.” The capital necessary to fund the construction of the waste oil processing machines was to be acquired from the sale of exclusive territories for the marketing of the machine.

“Q. How much money (was received from the sale of exclusive territories)?
“MR. STOKES (Defense Counsel): This has nothing to do with this, Judge.
“THE COURT: Overruled. I think we have opened it all up.
“MR. STOKES: All right, sir.”

Defense counsel’s cross examination of State’s witness Jud Colley revealed that the corporation the defendant had set up to sell franchises for the machine had generated one hundred thousand dollars. The State, on redirect examination, questioned Colley on whether the defendant had received any of this money.

Initially, it appears that defense counsel waived any objection he might have had by agreeing to the Judge’s ruling. However, even if the adverse ruling was not concurred in by defense counsel, we find no error in the action of the trial judge.

The defendant claimed rightful ownership of the waste oil processor through his interest in Oil Salvage Manufacturing, Inc. (OSMI) and Oil Savings, Inc. (OSI). This was the foundation for his entire defense. The fact that the defendant actually removed the waste oil processor from the premises of Mary Chevrolet has never been disputed.

The defendant was the president of OSMI since its inception. The purpose of OSMI was to raise the capital necessary to fund the development of the waste oil processor. This was to be accomplished through the sale of exclusive territories to the marketing rights to the machine. The defendant himself testified, “I was the one that raised the money and I was the one that had the most to gain and the most to lose, so I wasn’t going to stand by and see the project go down the drain.” Colley testified that C & F Oil was to receive approximately $300,000.00 to set up a factory and manufacture the machines. This money was to come from OSMI through OSI.

It can readily be seen that the internal structure and operation of OSMI, OSI, and C & F Oil were interwoven and connected. Consequently, it was essential, under his defense, that the defendant be allowed to show what interest he had, if any, in these companies and that the State be permitted to cross examine him on this issue.

The question objected to sought evidence relevant to the issues in this case.

“Any testimony tending reasonably to establish the probability or improbability of a fact in controversy is admissible. Holland v. State, 25 Ala.App. 147, 142 So. 112 (1932). The test of probative value or relevancy of a fact is whether it has any tendency to throw light upon the matter in issue even though such light may be weak and fall short of its intended demonstration. McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971).”
Tate v. State, 346 So.2d 515, 520 (Ala.Cr.App. 1977).

Consequently, we find no error in the action of the trial court.

III

The indictment charged the larceny of one waste oil processor, “the personal property of Mary Chevrolet Company, Inc.” The State’s evidence proved that the machine was owned by C & F Oil Co. and that Mary Chevrolet had rightful possession of the processor at the time it was stolen. This constituted no variance between the indictment and the evidence. In Hubbard v. State, 374 So.2d 427 (Ala.Cr.App.1979), this Court held that there was no variance between an indictment which alleged that the- property stolen was the property of a representative of the corporation during the time the property was stolen and proof that the corporation was the owner of the property. An allegation in an indictment for grand larceny is not defective because the stolen property was alleged to be owned by a warehouse which was in fact the bailee. Davenport v. State, 53 Ala.App. 326, 299 So.2d 767, cert. denied, 293 Ala. 751, 299 So.2d 771 (1974). “The allegation of ownership of property in the name of a bailee or trustee does not affect the sufficiency or validity of the indictment.” Davenport, 53 Ala.App. at 329, 299 So.2d 767.

In connection with this issue, the defendant also contends that the State never proved that Mary Chevrolet was in lawful possession of the waste oil processor. However, Jud Colley testified that C & F Oil owned the machine by virtue of its oral contract with OSI; that C & F Oil hired Mary Chevrolet to develop the machine; and that Mary Chevrolet “owned the machine by virtue of possession by virtue of the bills owed on the machine.” The fact that the defendant testified that OSI owned the machine and that he as president and former director of OSI had a legal right to possession and control of the machine created a question of fact for the jury.

IV

As his final ground for reversing his conviction, the defendant attacks the competence of his retained trial counsel alleging that that competence was so lacking as to deny him his constitutional right to effective assistance of counsel. This issue was initially raised by the defendant at his sentencing hearing. In his motion for new trial, the defendant alleges that he was “not adequately, capably, and efficiently” represented by counsel and lists five reasons:

“(a) That the Defendant had absolutely no knowledge and was not advised by his Counsel that his trial was to be held on February 27, 1980, and only learned of it when the Jury was being struck.
“(b) That the Defendant was advised by his Counsel that the Court proceeding to be held on February 27, 1980, was a Preliminary Hearing, and the Defendant therefore thought it was a discovery proceeding in which no adjudication of guilt would be made.
“(c) That the Defendant contacted his Counsel on the evening of February 26, 1980, upon arriving in Troy, Alabama, for the purpose of discussing the hearing the next day and was advised by his Counsel that there was no need to meet and review Defendant’s evidence until 9:00 A.M. on February 27, 1980.
“(d) That Defendant had material witnesses willing to testify in his behalf at trial who were not present and whose testimony was crucial to the Defendant’s defense. Said witnesses would be present to testify on behalf of the Defendant should this Honorable Court grant a new trial.
“(e) That Counsel for Defendant failed to discuss the elements of the offense with which Defendant was charged in his closing argument to the Jury."

In brief on appeal, the defendant states, “The crux of Richard Bridges’ contention that his legal representation was inadequate is that he was never advised that the jury trial of his case was to be held on February 27, 1980. At the hearing on the motion for new trial, the defendant testified that he appeared at trial under the impression that it was to be a preliminary hearing; only immediately before the jury selection had actually begun did he learn that he was in fact on trial for the merits of the indictment.

The allegations by the defendant against his trial counsel are practically unrefuted in the record. The State admitted it had no knowledge of this issue and did not attempt to dispute any allegation or contention made by the defendant in this regard.

The only response from trial counsel, whose competence the defendant attacks, came at the sentencing hearing when the issue was first raised.

“Judge, let me say this. I corresponded with Dick’s (the defendant’s) attorney in Georgia, Mr. Vellanas, and advised him as to the trial and had a couple of conversations with him on the telephone about it. I subpoenaed two witnesses for Dick, neither of which was available. One of them had called me and told me that he couldn’t be here on that day, why, I don’t know. I discussed it with Dick on the day of the trial that Mr. Warren called and said that he could not be available and the other witness, of course, we knew that subpoena power couldn’t reach either witness, but — I had been assured that they would be available as a witness from the other individuals.”

Despite defendant’s allegations, the record shows that defense counsel was very active in his representation of the defendant. He introduced a number of exhibits, including a stock certificate, a contract, checks, letters, and signature cards, which, by their presentation, tend to refute the allegation that defense counsel was not prepared.

The allegations against trial counsel are very serious yet the record does not show that the defendant’s trial was reduced to a “farce, sham or mockery of justice.” Despite criticism, the rule in this State is that, in order to have a conviction reversed because of incompetent counsel, a defendant must show that the representation by counsel was only perfunctory, that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice, or that the representation shocks the conscience of the court. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Lewis v. State, 367 So.2d 542, 546 (Ala.Cr.App.1978), cert. denied, 367 So.2d 547 (Ala.1979), and cases cited.

“(E)ven though it can be definitely shown that an attorney has made a mistake in the trial of a case that results in a judgment unfavorable to his client, this alone is not sufficient to demonstrate that his client has been deprived of this constitutional right to adequate and effective representation by counsel.. . . ”
Lee v. State, 349 So.2d 134, 136 (Ala.Cr.App.1977).

An adequate defense in the context of the constitutional right to counsel does not mean that counsel will not commit what may later prove to be tactical errors, and matters of trial strategy, in the absence of a clear showing of improper or inadequate representation, will be left to the judgment of trial counsel. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974); Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973). The conviction of a client does not prove lack of either zeal or skill on the part of defense counsel. Mills v. State, 275 Ala. 217, 153 So.2d 650 (1963).

The burden of sustaining a charge of inadequate representation rests on the defendant. Here the defendant did not show that the testimony of the two “material witnesses” who did not testify would not be cumulative of the evidence already in the record. The implication in the record is that the testimony of both witnesses would tend to establish the defendant’s ownership of and relationship to the stolen property. There is no showing that their testimony on these issues would add any significant facts other than those supplied by the defendant’s own testimony. “No ineffective representation results where trial counsel fails to call witnesses whose testimony would only be cumulative to evidence already in the record.” Robinson v. State, 361 So.2d 1172, 1175 (Ala.Cr.App.1978).

Considering the entire record before us, it is clear that the trial was not reduced to a farce or mockery of justice. The mere fact that the defendant, by hindsight, thinks that he could have received better representation at trial does not mean that trial counsel was inadequate or incompetent.

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

AFFIRMED.

All Judges concur.


text:
    David William PROCTOR v. STATE.
    6 Div. 256.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    L. Dan Turberville, Birmingham, for appellant.

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

The defendant was indicted and convicted for robbery. Sentence was ten years’ imprisonment with one year to be served and nine years to be spent on probation.

I

Initially the defendant contends that the evidence is insufficient to support a conviction for robbery and would only authorize a conviction for grand larceny. We disagree.

We need not detail all the testimony presented at trial. Hattie Cook testified that the defendant came to her car, got in and “said this was a robbery.”

“And told me to give him my money — I didn’t have but five. He told me my money or my life. And I went to the bank and I got some more money out.”

Although Mrs. Cook never saw any weapon, the defendant kept his hand in his pocket. Mrs. Cook testified that the defendant threatened her life and that she was scared, “real scared.” She “took his words for it, that he had a gun.” Mrs. Cook testified that the defendant “said he had a gun. All I was supposed to do was obey him.” She handed the defendant her money when the defendant “pointed that object (in his pocket)” at her and told her that he wanted the money.

Testimony of the victim alone may be sufficient to establish a prima facie case of robbery. Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). We find that the evidence in this case is sufficient to support the verdict. Pollard v. State, 358 So.2d 778 (Ala.Cr.App.), cert. denied, Ex parte Pollard, 358 So.2d 782 (Ala.1978).

To constitute robbery, it is not necessary for the robber to use actual physical force against his victim.

“In robbery, the force or intimidation employed is the gist of the offense. The manner of taking is in the alternative; if force or violence is used, fear is not an essential ingredient. Conversely, if fear is used, there need be no violence.” Baker v. State, 344 So.2d 547, 549 (Ala.Cr.App.1977).

Mrs. Cook testified that the defendant “snatched” the money which she had gotten at the bank out of her hand. Generally, mere snatching is not robbery unless there is some concurrent intimidation or violence.

“While it may be true, that mere taking unawares, or sudden snatching a thing from the hand of another is not robbery, if the snatching be accompanied with violence, or such demonstrations or threats as to create a reasonable apprehension of bodily injury, or creates resistance however slight, the offense is committed.” Evans v. State, 80 Ala. 4, 7 (1885).

However, when the defendant “snatched” the $300.00 out of Mrs. Cook’s hand at the airport, he had already robbed her of five dollars before they went to the bank. When the testimony at trial as to the amount stolen does not coincide with the amount alleged in the indictment, such a variance is immaterial and is not fatal. Sanders v. State, 289 Ala. 224, 266 So.2d 802 (1972); Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958).

II

The defendant contends that his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were violated when law enforcement officers continued to question him after he refused to sign a waiver of rights form. The record does not support this contention.

After being advised of his Miranda rights, the defendant simply refused to sign a waiver of rights form. The defendant did not at any time refuse to talk to the officers but just refused to sign the form. The officers kept talking to the defendant after his refusal to sign.

Sergeant Joe Roberson testified that the defendant did not refuse to talk but that he “wouldn’t make any confessions or anything like that toward the crime. But he talked to us freely about everything from his education on and the lack of ours.” During the course of the interrogation, the only thing the defendant said was that “he was an intelligent man, he could beat this. He wasn’t worried about it.” Sergeant Roberson stated that the defendant said that “he was too smart for us, had better education than we did, that he knew how to get out of it.”

The defendant contends that once he refused to sign the waiver of rights form all questioning should have ceased. In this case it does not appear that the defendant was attempting to exercise his Miranda rights by refusing to sign a written form but was simply refusing to sign.

A finding of voluntariness may be made even where a suspect refuses to sign a waiver of rights form. Houston v. State, 56 Ala.App. 295, 321 So.2d 261 (1975). There is no set pattern for the manner of waiving constitutional rights. Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809 (1969); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977).

Ill

The defendant also contends that the prosecutor made four prejudicial remarks in his closing argument to the jury which constitute reversible error.

A.

In argument the prosecutor stated that Officer Hunt “doesn’t work patrol, he doesn’t investigate cases, and does not as a rule make felony arrests.” Defense counsel objected to this statement on the ground that it was not supported by the evidence. However, Officer Oscar Albert Hunt testified that he was a Birmingham Police Officer assigned to the airport. His duties were primarily to fly the helicopter. As a rule he did not work in a patrol division: “Sometimes when we are grounded they will send us downtown to work, but most of the time we work at the airport or out front writing parking tickets.” Thus the prosecutor’s argument was a reasonable inference from the evidence. McQueen v. State, 355 So.2d 407 (Ala.Cr.App.1978). Additionally, the trial court instructed the jury to “rely on the evidence.”

B.

The prosecutor made an analogy between the defendant’s case and one involving narcotics. We find no proper objection to the prosecutor’s remarks contained in the record.

“MR. TURBERVILLE (Defense Counsel): Your Honor, this is—
“MR. SULLIVAN (Assistant District Attorney): I am making an analogy just like Mr. Turberville, Your Honor.
“MR. TURBERVILLE: Dealing in narcotics—
“THE COURT: All right.”

Because there was no specific objection (although it is clear that defense counsel was attempting to state something), because there was no adverse ruling, Shelby v. State, 340 So.2d 847, 848 (Ala.Cr.App.), cert. denied, 340 So.2d 849 (Ala.1976), and because of the prosecutor’s comment indicating that he was responding in kind, we find no error in the record. The trial judge was in the best position to determine the propriety of the prosecutor’s remark and the record contains no clear showing that he abused his discretion in this matter.

C.

The prosecutor’s reference to what defendant describes in brief as “a highly publicized, unsolved robbery murder “does not constitute reversible error because the trial judge sustained the objection of defense counsel who requested no further relief. Again the defendant simply has no adverse ruling upon which to ground his basis for error. Van Antwerp v. State, 358 So.2d 782, 790 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978).

D.

Finally, the defendant argues that the prosecutor commented on the defendant’s failure to testify. From the record:

“MR. SULLIVAN: In his opening statement, Mr. Turberville got up here and told us that the evidence was going to show that the defendant knew the victim, that she went with him willingly out there, and that when they went to that bank they had a common purpose and plan for the money. I haven’t seen any of that, Ladies and Gentlemen. The only purpose and the only plan I have seen, has been this man right over here, to steal that lady’s money.”
“MR. TURBERVILLE: I object to that, Your Honor.
“MR. SULLIVAN: Now, where has there been any evidence—
“THE COURT: Overruled.
“MR. TURBERVILLE: Your Honor, I object, he is getting into the fact that the defendant did not take the stand, which he did not have to do.
“MR. SULLIVAN: No. I am getting into the statement that the defense attorney made in the opening statement. ;
“THE COURT: Overruled.”

We do not consider the prosecutor’s remarks to have violated Alabama Code Section 12-21-220 (1975) prohibiting a prosecutor’s comment on a defendant’s failure to testify. The prosecutor’s remark is more properly considered as a comment on the failure of the defense to produce witnesses and as a reply to the argument of defense counsel. Hanners v. State, 147 Ala. 27, 41 So. 973 (1906).

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

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Anthony Joseph GRADY v. STATE.
    6 Div. 306.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.

      Roger C. Appell of Bryan & Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Anthony Joseph Grady was indicted for first degree murder in the shooting death of William Bennett Alpert, Jr., and at trial was found guilty by the jury of murder in the second degree, with punishment being fixed at twenty years in the state penitentiary. From the trial court’s judgment and sentence, Grady brings this appeal, contending that certain statements made by the prosecutor during closing argument were so prejudicial as to deny Grady a fair trial.

The evidence adduced by the State tended to show that, on the night of August 28, 1979, appellant and Alpert, the deceased, had been engaged in an argument, while both were standing on the corner of 11th Avenue and 16th Street in the City of Birmingham. Although there were apparently a number of persons present during the time of the events in question, only one witness, a Larry Mims, was produced to testify as to what he had seen. Mims stated that he knew both men, and that, although he was not really paying attention, he had noticed that appellant and Alpert were arguing about something and that at one point Alpert had walked down the street, only to return to resume the argument. Mims did not hear any of what was said with the exception of a reference by Alpert to “ ‘Because I know what you was in the jail house’ ” (R. 30). At that point, appellant and Alpert appeared ready to exchange blows, but did not commence fighting, instead only continuing to circle each other and argue. Witness Mims stated that he then heard a gunshot and saw Alpert fall to the sidewalk behind a car, after which appellant walked over and kicked Alpert, and left the scene. Mims testified further that he never saw either man produce a gun, although both had their hands in their pockets immediately prior to the shooting, and did not see the actual shooting, nor did he see appellant with a gun after the incident.

Other witnesses for the State included the investigating police officer, who testified that, upon his arrival, he had seen a number of people standing around Alpert’s body, and had subsequently conducted a search of Alpert’s person. The officer stated that he did not find a weapon, nor did he recover any money or drugs from the deceased’s person. An employee of the Medical Examiner’s Office testified that he had performed an autopsy on the deceased, and that the cause of death was a single gunshot wound. He further stated that he was not certain of whether a blood sample taken from the deceased had revealed the presence of alcohol or drugs.

Albert Wallace, a sergeant in the homicide division of the Birmingham Police Department, testified that, on September 14, 1979, he had conversed with appellant at the Birmingham City Jail, and had recorded certain statements made by appellant. Sergeant Wallace stated that he had not offered appellant any inducement or hope or promise of any type of reward, and had further read appellant his rights from a “Miranda card”; appellant had acknowledged his understanding of his rights, and had agreed to make the statement. At that point, Sergeant Wallace read the statement into evidence. In his statement, appellant acknowledged that he had known Alpert from a prior stint in the Jefferson County Jail, but that the first time he had seen him after that was on August 28, 1979. During their meeting on the street that night, Alpert and appellant had commenced talking in a somewhat jovial manner, but Alpert had suddenly become angry and had “ ‘run his hands in his pockets’ ” (R. 67), at which point appellant pulled a pistol out with which to hit deceased. The pistol “went off” and Alpert was struck and fell, but appellant admitted that he then kicked Alpert as he lay on the ground, and left the scene.

The statement reveals that, under further questioning, appellant elaborated on the events of the night of the shooting. According to appellant, Alpert had first approached him holding a beer, had shaken hands with appellant, and had then started talking “about the jail.” Appellant stated that Alpert was taking pills in addition to the beer he was consuming, and that he continued to bait appellant about an incident in the County Jail in which, apparently, Alpert had raped, or had participated in the rape of appellant. Sergeant Wallace stated that appellant was very embarrassed about relating the details of this incident, and that appellant had expressed a fear of Alpert. The officer further testified that he believed a fair synopsis of the events of the night of August 28, 1979, to be that Alpert had continually teased appellant about the rape, had then become angry and put his hands in his pocket, and at that point appellant had shot him.

The State rested at this point, and appellant’s motion to dismiss the indictment for the failure of the State to prove a prima facie case was overruled. The appellant then called several witnesses, the major one being Richard Lake. Lake admitted that he had been convicted on previous occasions of robbery and assaulting a police officer with a deadly weapon. He stated that he had been present at the scene of the shooting on August 28, 1979, and that he had observed the argument between appellant and Alpert, although he had not paid much attention to it. Lake testified that, at one point, he saw Alpert wander down the street and converse with another person, and that he thought something was exchanged between the two. Alpert then returned and resumed his argument with appellant, and they started struggling, at which point a gunshot was heard by Lake. Lake further testified that he did not see Alpert with any sort of weapon, and that he was not sure whether appellant had had a gun. Lake was also permitted to testify that he was informed that Alpert had been given some marijuana cigarettes by the individual with whom he had talked before resuming his argument with appellant.

Appellant rested his case without taking the stand.

I

The only grounds advanced by appellant as justifying a reversal of his conviction concern statements made by the prosecutor during his final argument, and which appellant argues were so prejudicial as to deny him a fair trial. Appellant thus first contends that the trial court should have granted his motion for a mistrial based upon the following comment by the prosecutor:

“Mr. NAIL: Now, he says we are going to lock him up and throw him away for life. If you read the papers you know how long people stay locked up—
“MR. APPELL: Judge, I move for a mistrial on the basis of that statement.
“THE COURT: Ladies and gentlemen, disregard that. Disregard that, ladies and gentlemen. Can all of you disregard that?
“MR. APPELL: I don’t think anyone possibly can. I ask for a mistrial.
“THE COURT: That is improper, disregard it. Proceed, Mr. Nail.” (R. 121-122)

The essence of appellant’s argument in this regard is that the statement of the prosecutor must be interpreted as a prejudicial reference to the possibility of appellant’s parole, probation or some such other consideration, and the trial court’s curative instructions were insufficient to eradicate the prejudicial effect of the comment. The State, on the other hand, asserts that the disputed statement was not an impermissible reference to parole, but merely a response to a previous argument by counsel for appellant, and that, in any event, any error was adequately cured by the court’s instructions.

Initially, it seems quite clear that the statement, “If you read the papers you know how long people stay locked up — ,” though somewhat fragmentary (see McClary v. State, 291 Ala. 481, 282 So.2d 384 [1973]) and not directly referring to the possibility of parole or the like, does intimate strongly that any prison term meted out to appellant might be mitigated by some future event such as a parole or escape. Cf., Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965) (only inference of argument that “ ‘A man like this, if he was to get off with life imprisonment, he would be out and around’ ” is that accused would “either escape ... or be paroled”). The courts of this State have often held that possibilities of future paroles, probation, escape and the like are not proper considerations for a jury in determining the issues of an accused’s guilt or innocence and his sentence, and thus arguments to this end are improper. In Murray v. State, Ala.Cr.App., 359 So.2d 1178 (1978), the rule and its rationale were stated thusly:

“A jury should perform its duty both as to the question of guilt and as to the extent of punishment, if within the province of the jury, irrespective of what someone else, including the trial court, appellate courts and all probation, parole and pardoning authorities might do in the future. That is not a matter for the jury to consider. A rule permitting any agency in the administration and execution of justice to knowingly attempt to ease its conscience or evade its responsibility in the assumption that another agency will rectify its failure to perform its separate responsibility would lead inevitably to subversion, irrespective of the good intentions that might at times prompt such action.”

See, Eaton v. State, supra; Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957); Cobb v. State, 248 Ala. 548, 28 So.2d 713 (1947); Matthews v. State, 54 Ala.App. 359, 308 So.2d 718 (1975). This proposition has been applied in several contexts, especially in those involving, in the past, the imposition of a prison term as opposed to the death penalty, or those instances where an accused seeks to establish his innocence by reason of insanity, and a prosecutor thus seeks to sway the jury’s decision in that regard by raising the spectre of an early release from a mental institution. Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973), cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975); Dunn v. State, 277 Ala. 39, 166 So.2d 878 (1964); Whisenhant v. State, Ala.Cr.App., 370 So.2d 1080, cert. denied, Ala., 370 So.2d 1106 (1979).

But while the argument of the prosecutor, if construed as we have noted above, would be palpably improper, there is merit to the State’s contention that, if the statement of the prosecutor was only a reply to an earlier line of argument by the counsel for appellant, then the prosecutor’s argument would be exempt from the application of the rule announced in Murray, supra. The State cites the first portion of the disputed statement, where the prosecutor said, “Now, he says we are going to lock him up and throw him away for life,” undoubtedly a reference to the requirement that one found guilty of first degree murder be sentenced to life imprisonment, § 13-1-74, Code of Alabama 1975. Further, the following also occurred:

“MR. APPELL: Judge, simply for the record I want to renew my motion for a new trial. I don’t know if all of this was in the record, but during Tommy Nail’s closing argument, he made an allegation or statement that the members of the jury have all read the newspapers and they knew this defendant who was sitting here would not spend the rest of his life in jail, if he was convicted, alluding to the fact that he would get parole or probation or something.
“THE COURT: Well, I granted it — I sustained it.
“MR. NAIL: Judge, I would like to respond to that. Mr. Appell brought that up in his argument and told the jury that we wanted to lock him up and throw the key away for the rest of his natural life. And the state has a right to rebut that. Even though his argument is probably improper, we have a right to rebut that and go into that on our argument on rebuttal to his reply in his closing argument.
“THE COURT: All right.” (R. 138)

The decision of this Court in Matthews v. State, 54 Ala.App. 359, 308 So.2d 718 (1975), treated the contention here raised by the State in the context of a case where the defense attorney had argued that the accused would at least get a minimum sentence, and the State had countered with the suggestion of the possibility of probation. The Court there stated:

“It is true that argument by a District Attorney to a jury that a defendant convicted and sentenced to the penitentiary may be eligible for pardon or parole is improper and has been held to be reversible error ... However, it is further held that if that argument is in reply to argument by the defense that the defendant, if convicted, will be sentenced to the penitentiary, the rule above referred to does not apply and the district attorney is within his rights in making his reply to a subject first introduced in argument from the defendant.”

Similarly, in Ellis v. State, 38 Ala.App. 379, 86 So.2d 842 (1955), cert. dismissed, 264 Ala. 695, 86 So.2d 846 (1956), the Court of Appeals had occasion to note:

“We have here a statement to the jury by counsel that, if convicted, the defendant would be sent to penitentiary. That, of course, precluded probation possibilities. In view of this situation, we think the solicitor had the right to call to the attention of the jury the fact that probationary rights are available and the statement of counsel was not correct in its entirety.”

See also, Smith v. State, 40 Ala.App. 208, 110 So.2d 340 (1959).

The appellant argues, however, that the argument of the prosecutor could not be argument “in kind” since the closing statements were not fully transcribed, citing in support of this proposition the Supreme Court’s decision in Whitt v. State, Ala., 370 So.2d 736 (1979). There, the Court did say that, “It seems self-evident that it cannot be ‘argument in kind’ when we do not have the defense counsel’s argument to which this comment is said to reply. The record does not contain the closing arguments in this case.” We find that in this case, however, enough of the disputed arguments was presented for review in that the prosecutor virtually restated at two separate points the gist, if not the exact wording, of the argument by counsel for appellant without any refutation by him. The thrust of such an argument was to impress on the jury that a conviction for first degree murder would entail the sentence of life imprisonment, and we feel that under the above-cited authorities that it was proper for the prosecutor to argue the possibilities of other possibly mitigating circumstances.

We note that the trial court promptly sustained the objection of appellant as to the statement anyway, and cautioned the jury about taking such things into consideration. The authorities we have cited above all stand for the further proposition that any prejudicial effect of an improper argument in this regard may be sufficiently eradicated by prompt instructions to the jury. We feel that here the trial court mounted a quite sufficient attempt at warning the jury concerning what it considered as the prejudicial nature of the prosecutor’s argument. No precise wording is needed and we decline to impose such technical considerations on a trial judge. We thus find that, though the argument of the prosecutor was probably not improper under these circumstances, any possible prejudicial effect was promptly eradicated by the action of the trial court. There was certainly no error in refusing to declare a mistrial. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Retowsky v. State, Ala.Cr.App., 333 So.2d 193 (1976); Lippold v. State, Ala.Cr.App., 365 So.2d 1015, cert. denied, Ala., 365 So.2d 1022 (1978); Earley v. State, Ala.Cr.App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978); Gipson v. State, Ala.Cr.App., 375 So.2d 504, cert. denied, Ala., 375 So.2d 514 (1979); Bailey v. State, Ala.Cr.App., 375 So.2d 1278, cert. denied, Ala., 375 So.2d 1284 (1979); Kuczenska v. State, Ala.Cr.App., 378 So.2d 1182, cert. denied, Ala., 378 So.2d 1186 (1979); Kendricks v. State, Ala.Cr.App., 378 So.2d 1203 (1979); Merchant v. State, Ala.Cr.App., 384 So.2d 627, cert. denied, Ala., 384 So.2d 632 (1980).

II

Likewise, during the closing arguments of the prosecutor, the following occurred, which appellant contends was an impermissible attempt on the part of the prosecutor to comment on the failure of appellant to take the stand in his own defense:

“MR. NAIL: If it was self-defense, why didn’t he stay there and tell the police? He had a say. He leaves, he throws the gun away. This happened on August the 28th, I believe, from the evidence, and September the 17th he tells Sergeant Wallace, when he knows he is going to be charged in this case, that was self-defense, he had his hand in his pocket, I knew what a bad fellow he was, because he raped me up in the jail. That is nothing more than a self-serving statement. He knew he was going to be charged in this case. He was trying to justify what he did. I am not saying it did or didn’t happen, I am saying that we don’t know. There are only two people that know and one of them is dead. He is not here to tell you what his side of the story and the version of what happened up there in the jail.
“MR. APPELL: Objection, Your Honor, to the statement — as an unconstitutional statement relating to the defendant. And I move for a mistrial.
“THE COURT: Overruled. Mr. Appell.” (R. 118-119)

It is clear that, in the realm of federal constitutional law, the Fifth and Fourteenth Amendments to the United States Constitution prohibit a prosecutor from commenting to the jury on the failure or refusal of an accused to testify in a criminal proceeding, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), although an argument that the State’s evidence is unrefuted and uncontra-dicted is permissible, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and the trial court may instruct the jury that it may not consider the failure of accused to take the stand. Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978). The Alabama law in this area has in the past been transformed into a virtual quagmire due to apparently inconsistent interpretations of Ala.Const. Art. I, § 6 (“that in all criminal prosecutions, the accused * * * shall not be compelled to give evidence against himself * * * ”) and § 12-21-220, Code of Alabama 1975 (formerly Tit. 15, § 305, Code of Alabama 1940), which states:

“ * * * If the district attorney makes any comment concerning the defendant’s failure to testify, a new trial must be granted on motion filed within 30 days from entry of the judgment.”

In Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975), the Supreme Court attempted a reconciliation of views on this point, stating:

“It has long been held regarding the introduction of illegal evidence, such as coerced confessions, that the test is not whether the illegal evidence did influence the jury, but whether it might have influenced it in arriving at the verdict . . . Under Const, of Ala. of 1901, § 6, there is no valid basis for using a different test for improper prosecutorial comment. Thus we hold today that where there is the possibility that a prosecutor’s comment could be understood by the jury as reference to failure of defendant to testify, § 6 is violated. We specifically disapprove any contrary cases which construe Code of Alabama, Tit. 15, § 305, as requiring reversal only when there is virtually a direct identification of the defendant as the one who did not testify . . . Thus if there exists the possibility that the prosecutor has commented in such a manner that the jury may understand it as a comment on the defendant’s failure to testify, it is for the trial court to cure this violation of prosecutorial duty by prompt and vigorous instructions to the jury informing them of defendant’s right not to be compelled to testify and that they may draw no presumption from his decision not to testify.” (Footnotes omitted.)

Admittedly, the trial court here did not sustain the objection of counsel for appellant to the statement of the prosecutor, and certainly did not instruct the jury regarding the failure of the appellant to testify. It would thus be evident that appellant’s conviction would have to be reversed under the mandates of Beecher if we were to conclude, as appellant urges, that the comment here was arguably one on the failure of appellant to take the stand.

A number of pre- and post-Beecher decisions in this state have reversed convictions where it was found that certain comments by prosecutors were direct or arguable references on the failure of the accused to testify. May v. State, 209 Ala. 72, 95 So. 279 (1923); Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973); Beecher v. State, supra; Whitt v. State, Ala., 370 So.2d 736 (1979); Harris v. State, 33 Ala.App. 623, 36 So.2d 254 (1948); Padgett v. State, 45 Ala.App. 56, 223 So.2d 597, cert. denied, 284 Ala. 732, 223 So.2d 597 (1969); Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43 (1975); Robinson v. State, Ala.Cr.App., 352 So.2d 11, cert. denied, Ala., 352 So.2d 15 (1977); Quails v. State, Ala.Cr.App., 371 So.2d 949, cert. denied, Ala., 371 So.2d 951 (1979); Burson v. State, Ala.Cr.App., 373 So.2d 1239 (1979); Fleenor v. State, Ala.Cr.App., 372 So.2d 902, cert. denied, Ala., 372 So.2d 904 (1979); Meade v. State, Ala.Cr.App., 381 So.2d 656, cert. denied, Ala., 381 So.2d 659 (1980). An examination of these authorities and their comparison with the facts here complained of leads us to the conclusion that the statement of the prosecutor here was not any sort of comment on the failure of appellant to testify.

The comment made by the prosecutor and reproduced above is somewhat similar in thrust to comments held impermissible in Whitt, Qualls, and Lamberth, supra. In Whitt, the Supreme Court held that, in accordance with Beecher, the statement, “ ‘the only person alive today that knows what happened out there that night is sitting right there,’ ” was an impermissible direct comment on the failure of the accused to take the stand. Similarly, in Qualls, the prosecutor had stated that, “ ‘There were two eyewitnesses to what happened, who are they?. Kenneth White was an eyewitness, he is dead, so he cannot testify. Linda Sue Qualls [the accused] was an eyewitness to what happened’ ” but the accused had not testified; such a comment was held reversible error. And in Lam-berth, also a homicide case involving an automobile accident, the prosecutor made a statement to the effect that only the deceased victims and the accused were witnesses and thus the only person who could testify to what had happened was the accused; the conviction was reversed. The appellant here argues that, since he did not take the stand to testify concerning the events in jail, any reference to the failure of the ability of the deceased to testify reflected on the appellant’s refusal to do so.

This contention ignores the thrust and context of the prosecutor’s argument. As we read the statement, it only refers to the statement given by appellant and admitted into evidence in which he put forward a defense of self-defense, and in which appellant claimed that the deceased had raped him in jail at an earlier time. The prosecutor, making an inference from the evidence, commented that the deceased was obviously unable to now refute the contention of appellant made in the statement. We find that a very similar situation was present in Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961), where accused had objected to the use of his statement in the prosecutor’s argument on the very grounds here advanced.

The Court, in dismissing this argument, stated:

“The statement was merely a comment by the solicitor upon the evidence admitted during trial and not an unfavorable allusion to the appellant’s silence. It was merely a statement of what the defendant had stated in his confession. The statute is, of course, designed to prevent the creation of any unfavorable inferences from the accused’s silence, but it does not abrogate the right of State’s counsel to comment on legitimate inferences of the evidence.”

We find that the prosecutor was merely attempting to refute the facts alleging self-defense and contained in appellant’s statement, which was in evidence, and not commenting on the failure of appellant to testify. See also, Earley v. State, Ala.Cr.App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978).

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Larry Leon MILLER v. STATE.
    6 Div. 352.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Joel R. Chandler of Sogol & Chandler, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Larry Leon Miller, was indicted by the grand jury of Tuscaloosa County for sodomy in the first degree, entered a plea of not guilty, was found guilty by the jury of sodomy in the first degree as charged in the indictment, and duly sentenced to be imprisoned in the penitentiary of the State of Alabama for a term of fifty (50) years, and appeals to this Court.

The appellant was at all proceedings in the trial court represented by court-appointed counsel, and is represented in this Court by counsel of his own choice. This case was submitted to this Court on briefs.

The appellant contends that the trial court erred to his prejudice when it allowed the injured party, a four-year-old girl child, and only eye witness to the offense, to testify against him.

The injured party, a four-year-old girl child was called as a witness by the state, whereupon appellant’s counsel asked to be allowed a hearing to make a motion that he had discussed with the court. The defendant, his attorney, the attorney for the state, the court, court reporter, and the witness, with her mother, retired to chambers where the following occurred outside the hearing of the jury:

“BY THE COURT:
“Q What’s your name?
“A Kim.
“Q Do you know your last name? Is your name just Kim? Have you got a longer name? Do you go by any big, full name?
“A (Witness nodded head affirmatively.)
“Q How old are you?
“A (Witness indicated by holding up four fingers.)
“Q Four years old?
“A (Witness nodded head affirmatively.)
“Q Do you go to kindergarten yet?
“A (Witness shook head negatively.)
“Q You just play?
“A Go roller skating.
“Q You go roller skating? Aren’t roller skates real heavy?
“A Uh-huh.
“Q Your legs don’t get tired roller skating?
“A (Witness shook head negatively.)
“Q Do you like to roller skate?
“A (Witness nodded head affirmatively.)
“Q Do you ever go to Sunday School?
“A Yeah.
“Q Where do you go to Sunday School?
“A Holt Nazarene.
“Q Do you know who God is?
“A (Witness shook head negatively.)
“Q What do you study in Sunday School?
“A I just color and everything.
“Q Do they talk to you about the Bible?
“A (Witness nodded head affirmatively.)
“Q Do you know what the Bible is?
“A Yeah.
“Q What do they tell you about the Bible?
“A Sometimes they tell me not to stick my hand out the window.
“Q Not to stick your hand out the window? What’s going to happen if you stick your hand out the window?
“A You’ll get — get hit.
“Q Get spanked?
“A No.
“Q Do you know what happens — do you know what fibbing is?
“A Uh-huh.
“Q Or telling stories?
“A Uh-huh.
“Q Do you know what telling a lie means?
“A Not telling the truth.
“Q What happens — huh?
“A Not telling the truth.
“Q It means not telling the truth? What happens to people that don’t tell the truth?
“A Gets a whipping.
“Q Do you know who the Devil is?
“A No.
“Q You don’t know who the Devil is?
“A (Witness shook head negatively.)
“Q You don’t know anything about the Boogie Man?
“A No, sir.
“Q You never heard of anything about the Boogie Man?
(Witness shook head negatively.)
Do you know why you’re up here today?
Why?
Huh?
Why?
Well, I’m asking you. Do you know?
(Witness shook head negatively.)
You don’t know why you’re up here?
Uh-huh.
You’re up here to tell me the truth? Huh?
(Witness nodded head affirmatively.) “When you talk to us today, are you going to tell everything the truth?
(Witness nodded head affirmatively.) <1
You’re not going to tell any stories? O'
(Witness shook head negatively.) <!
Do you know what to tell the truth means? O'
(Witness nodded head affirmatively.) <
What does it mean? O
It means you tell the truth. <
That’s about as good an answer as I could give. (To Mr. Pradat:) Do you have any questions? O
‘EXAMINATION BY MR. PRADAT:
‘Q Kim, are you going to tell anything that didn’t happen?
‘A (Witness shrugged her shoulders, then shook head negatively.)
‘Q Are you just going to tell the Court what happened?
‘A (Witness nodded her head affirmatively.)
‘Q Which should you tell today, the truth or a lie?
‘A The truth.
‘Q All right. Do you always try to tell the truth?
‘A (Witness nodded her head affirmatively.)
:Q Do you get in trouble if you tell a lie?
‘A (Witness nodded her head affirmatively.)
Q You know you re supposed to tell the truth and just the truth today, don’t you?
‘A (Witness nodded her head affirmatively.)
‘EXAMINATION BY MR. CORNWELL:
‘Q Kinberly, what is a lie?
‘A Like, if you tell a lie, you get a whupping. That means you’re not telling the truth so you get a whupping.
‘EXAMINATION BY MR. PRADAT:
‘Q Kim, if you tell something that didn’t really happen, if you make something up, are you telling the truth or are you telling lie?
‘A Telling the truth.
‘Q No, if you make something up, you say you’re telling the truth? You just make it up and it didn’t happen?
‘A I didn’t make it up.
‘Q But if you do just make something up. If I tell you that you’re ten years old, would that be the truth?
‘A Huh-uh.
‘Q What would that be?
‘A A lie.
‘Q Okay.
‘EXAMINATION BY MR. CORNWELL:
‘Q Kimberly, do you play with other children?
‘A (Witness nodded her head affirmatively.)
‘Q Do you ever have any make-believe playmates?
‘A I just play with children that I know.
‘Q Have you ever told the other children that you play with that something happened that didn’t happen?
‘A (Witness shook her head negatively.)
‘Q Do you watch soap operas?
‘A Yes.
‘Q Are soap operas real?
‘A Yes.
‘Q Do you tell your mother about what you see on soap operas?
“A Some of them.
“Q And are the people on soap operas telling the truth?
“A Some of ’em, and some of ’em are telling lies.
“Q And have you ever told your auntie that you went to the doctor when you didn’t go to the doctor?
“A I just told her that I went, ’cause I went just one time.
“Q Well, did you ever tell her that — did you ever tell her you went when you didn’t go?
“A No.
“Q Was there ever a time when your mother asked you to tell your auntie you went to the doctor?
“A She told her that we went to the doctor for me. That’s the only thing she said.
“Q Well, was there an occasion — or was there a time when you or your mother didn’t go to the doctor, but you told your auntie that you did?
“A Yeah.
“Q Did you get a spanking?
“A My Mama told auntie that I went to the doctor.
“Q And you didn’t actually go to the doctor?
“A (Witness nodded her head affirmatively-)
“Q Well, was there another time when she said that you went to the doctor and you didn’t go?
“A She didn’t say nothing else after that about the doctor.
“Q How many times have you been to the doctor?
“A Only when I was sick.
“Q What?
“A Only when I was sick.
“MR. PRADAT: When she was sick.
“COURT REPORTER: When she was sick.
“MR. CORNWELL: Oh.
“Q Kimberly, if you made something up, but your mother told you it was all right to tell it, would that [be] a lie?
“A (Witness nodded her head affirmatively-)
“Q Even if Mom says it’s okay? What is Mother says it’s okay to tell this?
“A It’s okay to tell what happened.
“Q Well, is it okay to tell something that didn’t happen if your Mother says it’s okay to tell it?
“A (Witness shook her head negatively.)
“Q Has your Mother, in fact, told you to say things happened when maybe they didn’t happen?
“A She didn’t say nothing when she told it. Whenever she tells what happened, she means that I can say it ’cause really what happens is it really happens.
“Q Now, are you talking about the time you were with your Father or are you talking about just any time?
“A Like if I fall or something. Like that. “MR. CORNWELL: That’s all.
“EXAMINATION BY THE COURT:
“Q Kimberly, if you promise me that you’re going to tell the truth and nothing but the truth, are you going to do it?
“A (Witness nodded her head affirmatively-)
“Q You’re not going to tell any stories?
“A (Witness shook head negatively.)
“Q You’re not going to make anything up?
“A (Witness shook head negatively.)
“Q You’re going to tell me exactly what happened and nothing else, is that right?
“A (Witness nodded her head affirmatively-)
“Q You’re not going to make anything up?
“A (Witness shook her head negatively.)
“Q You’re going to tell the truth?
“A (Witness nodded her head affirmatively-)
“Q And only the truth?
“A (Witness nodded her head affirmatively-)
And you re going to promise me that real solemnly, right? o*
(Witness nodded her head affirmatively-) <
And be very straight with me? g?
(Witness nodded her head affirmatively-) <
No make-up stories? o’
(Witness nodded her head affirmatively-) <
Just the truth? gt
(Witness nodded her head affirmatively-) <
“EXAMINATION BY MR. CORNWELL:
“Q Kimberly, is there something you can tell that’s not the truth and not quite a lie, but it’s okay to tell it?
“MR. PRADAT: I’d object to that. That even confuses me, Your Honor, and I’m 27 years old. Hold on a minute, Kim.
“THE WITNESS: It is not okay to tell a lie.
“THE COURT: You say it’s not okay to tell a lie?
“THE WITNESS: (Witness shook her head negatively.)
“MR. CORNWELL: We have no further questions, Your Honor. We would enter an objection to the witness testifying.
“THE COURT: Well, I’m going to overrule the objection based on Jackson v. State, also McElroy §§ 94.01(5), 94.-02(3), 94.02(2). There are a number of other cases, but in the Jackson case, of course, that was a four-year-old child. The Court is satisfied, after having seen the child and talked with the child, that the child is an intelligent child and understands the difference between truth and lies and I feel that the witness meets the standards of competency sufficient to allow her to testify in Court. The weight of her testimony, of course, would be for the jury.
“(Thereupon, the oath was administered to the witness before leaving Chambers.)”

The state’s direct examination and redirect examination of the witness before the jury consumed about three and one-half pages of the record. The appellant’s cross-examination and recross-examination before the jury consumed about thirty pages of the record. The appellant’s counsel was allowed to cross-examine the witness and was not limited in its scope. The trial court was satisfied, after having seen and talked with the four-year-old child, that she was an intelligent child, and understood the difference between truth and lies, and was of the opinion that the witness meets the standards of competency sufficient to testify in the case. We have read the testimony of the child contained in the record. This Court does not have the privilege of personal observation of the child as did the trial judge. We have examined the record and do not find sufficient evidence to indicate to us that the trial judge abused his discretion by allowing the four-year-old girl child to testify.

In the case of Jackson v. State, 239 Ala. 38, 193 So. 417 Justice Bouldin observed, “The exclusion of a witness having good sense, however tender the age, is disfavored because it would often close the door to prove crimes against children themselves.” Our Courts have declined to set an age limit for children of very young age, and have placed the burden on the trial judge to determine, within his discretion, whether the child is intelligent enough to qualify as a witness. Code of Alabama, 1975, Sec. 12-21-165 provides, as follows:

“Incompetent witnesses.
“(a) Persons who have not the use of reason, such as idiots, lunatics during lunacy and children who do not understand the nature of an oath, are incompetent witnesses.
“(b) The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness or infancy.”

We hold that under the facts in this case the trial court did not err to the prejudice of the appellant when the four-year-old girl child was allowed to testify. McElroy’s Al abama Evidence, Third Edition, 94.01(5); Code of Alabama, 1975, Sec. 12-21-165, supra; Roberson v. State, Ala.Cr.App., 384 So.2d 864; Certiorari Denied, Ala., 384 So.2d 868; Jackson v. State, 239 Ala. 38, 193 So. 417; Rogers v. State, 264 Ala. 500, 88 So.2d 685.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.