author: HARRIS, Presiding Judge. BOWEN, Judge,

text:
    Kevin Udoka NOBIS v. STATE.
    8 Div. 398.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.

      Jerrilee P. Sutherlin of Harrison, Bur-well, Smith & Sutherlin and Dan Moran, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was indicted for the unlawful killing of Theroda Anakwe by stabbing her with a knife. Appellant was properly arraigned in the presence of counsel and interposed a plea of not guilty and not guilty by reason of insanity. Appellant was convicted of second degree murder and the jury fixed his punishment at sixty years in the State penitentiary. After sentence was imposed and his motion for a new trial denied, appellant gave notice of appeal. Appellant has been furnished a free transcript, and both attorneys who were appointed to represent him at trial were also appointed to represent him on appeal.

A threshold question to this appeal is whether appellant, as a matter of law, was entitled to a preliminary hearing within thirty days of his arrest, upon making a demand for one thirteen days following said arrest, where he was indicted by a grand jury thirty-three days following his arrest.

A review of the proceedings pertinent to appellant’s demand for a preliminary hearing reveals the following. Appellant was arrested on October 13, 1979 and charged with first degree murder. On October 26, appellant was provided two court-appointed lawyers to represent him who, on that date, demanded a preliminary hearing. A preliminary hearing was set for November 21. On November 2, appellant filed a motion to change the date of the preliminary hearing, requesting that, pursuant to Alabama Code § 15-11-1 (1975), the preliminary hearing be held within thirty days of appellant’s arrest; it was anticipated in this motion that the Madison County Grand Jury would meet on November 13 and that if that body indicted appellant he could lose his right to a preliminary hearing; District Judge Dan W. McCoy denied this motion the day it was filed.

On November 5, appellant filed a petition for writ of mandamus in Circuit Court praying that he be given a preliminary hearing within thirty days of his arrest. Judge McCoy and appellant’s lawyers worked together to frame a stipulation of facts and a statement of their respective positions regarding the interpretation of Alabama Code § 15-11 — 1 (1975), which were filed on November 8, to be considered with appellant’s petition for writ of mandamus. The positions taken by appellant and Judge McCoy concerning Section 15-11-1 appear in the record as follows:

“1. The position of the petitioner (appellant) is that he has an absolute right to a preliminary hearing upon demand prior to indictment and within 30 days of his arrest.
“2. The position of the Honorable Judge Dan McCoy is that the petitioner’s right to preliminary hearing exists prior to indictment and within 30 days after his demand for preliminary hearing.
“The point of law sought to be clarified is whether the 30 day time frame referred to in the statute runs from the date of arrest or the date of demand.”

On November 8, Circuit Judge S. A. Watson, Jr., found that appellant had a right to a preliminary hearing within thirty days of his arrest and granted appellant’s petition for writ of mandamus. Judge Watson ordered by Decree that a preliminary hearing be set prior to or on November 15. On November 9, a preliminary hearing was scheduled for 10:00 a. m., Tuesday, November 13.

The morning of November 13, the District Attorney filed a motion to set aside Judge Watson’s Decree ordering the preliminary hearing and requested a rehearing on the petition for writ of mandamus. The District Attorney in this motion also requested Judge Watson to enter an order staying all proceedings in the District Court (the preliminary hearing). That same morning Judge Watson ordered his November 8 Decree stayed, and ordered a hearing on the petition for writ of mandamus be held at 2 o’clock that afternoon. All proceedings in the District Court were also ordered stayed. Later still, on the morning of November 13, appellant filed, in Circuit Court, a motion to set aside the stay of the District Court proceedings. This particular motion was not ruled upon.

At 2:00 p. m. on November 13, Judge Watson conducted a hearing on appellant’s petition for writ of mandamus. At that time he entertained testimony and argument concerning the proper construction of Alabama Code § 15-11-1 (1975). Judge Watson then concluded, in his November 14 order, that there was an “ambiguity” in Section 15-11 — 1, and that, based on the persuasive authority of section 5.1 of the proposed rules of criminal procedure, together with the evidence and argument, “the ambiguity in Section 15-11-1 should be resolved in favor of the State’s position.” Appellant’s petition for writ of mandamus for the District Court to provide a preliminary hearing was denied.

The Madison County Grand Jury returned an indictment against appellant charging first degree murder on November 15. At no time was appellant ever provided a preliminary hearing.

Alabama Code § 15-11 — 1 (1975), (Acts of Alabama 1975, No. 1205, § 4 — 106(f)), the construction of which provides a resolution to this issue, reads as follows:

“Every person charged with and arrested for a felony before his indictment shall have an absolute right to a preliminary hearing on said charge upon such person’s demand within 30 days following said arrest; provided, that such person’s failure or refusal to appear for such preliminary hearing on his absence from the state at the time of the setting for the preliminary hearing shall not delay or invalidate an indictment pursuant to said charge.”

The question which we must resolve is what period of time does the “30 days” specified in Section 15-11-1 pertain.

Dr. John Conover, an assistant professor of English at the University of Alabama in Huntsville, provided a scholarly explanation as to what the “30 days” referred at the November 13 hearing on appellant’s petition for writ of mandamus; in essence he explained that the “30 days” could be construed to mean that a person’s demand for a preliminary hearing must be made within thirty days of his arrest, or, on the other hand, it could be construed to mean that a person has an absolute right to a preliminary hearing within thirty days of his arrest, as long as a demand is made within that time. Appellant contends that the latter construction is proper while the State argues in favor of the first construction. Our duty is to determine which of these two interpretations must prevail. We do not find the construction adopted by Judge McCoy to be a reasonable interpretation.

In other words, from a plain reading of the statute, an accused either has thirty days following his arrest to demand a preliminary hearing, or else he has an absolute right to a preliminary hearing within thirty days of his arrest, upon demand. A demand would be a prerequisite to receiving a preliminary hearing under either construction.

Stated another way, the problem in a nutshell is whether an accused has an absolute right to a preliminary hearing within thirty days of his arrest, upon making timely demand for one within that same thirty day period, or whether he simply has thirty days from the time of his arrest to demand a preliminary hearing. If the latter interpretation is adopted, a second problem develops as to when the preliminary hearing must be set after timely demand has been made. It is certain that the statute cannot be read to mean that an accused has a right to demand a preliminary hearing within thirty days of his arrest and also have the hearing set within thirty days of his demand; that is so because two separate thirty day time frames are not provided for in Section 15-11 — l. The remaining alternative, under the latter interpretation above, would be to find that if demand is made for a preliminary hearing within thirty days of arrest, the preliminary hearing must be held within a reasonable time following the demand.

We are mindful that in Duncan v. State, 369 So.2d 885, 887 (Ala.Cr.App.1979), a majority of this court held that where an indictment has been returned against the accused, no reversible error results in subsequently denying the accused a preliminary hearing: the rationale being that there is no constitutional requirement in Alabama for two inquiries into probable cause. In Duncan, supra and Hale v. State, 355 So.2d 1158 (Ala.Cr.App.1978) (which also dealt with Section 15-11-1, but was not determined under the Duncan rule), the accused was indicted well within thirty days of his arrest. Here, however, appellant was indicted thirty-three days after his arrest and twenty days following his demand for a preliminary hearing. Depending on how the “30 day” period in Section 15-11 — 1 is construed, and by using Rule 5.1(a) of the Proposed Alabama Rules of Criminal Procedure as persuasive authority, Duncan, carried to its logical extreme, works to negate any requirement that appellant should have received a preliminary hearing in the instant case.

In Mobile County Republican Executive Comm. v. Mandeville, 363 So.2d 754, 757 (Ala.1978), our Supreme Court held that, when the plain meaning of a statute can be gleaned from its words, it should be so construed, but where, because of ambiguous language or otherwise, the meaning is not clear on the face of the statute, it is the duty of the courts to determine its meaning. While criminal statutes are to be strictly construed in favor of the accused, Clements v. State, 370 So.2d 723 (Ala.1979), determining legislative intent is of crucial importance in deciphering the meaning of any statute not otherwise clear on its face. Mandeville, supra.

With these principles in focus, we believe the “30 days” in Section 15-11-1 means that an accused has thirty days following his arrest to demand a preliminary hearing. If the accused makes such a demand within thirty days of his arrest, the preliminary hearing must be held within a reasonable time following his demand; however, based on Duncan and the persuasive authority of Rule 5.1(a)(4) of the Proposed Alabama Rules of Criminal Procedure, if an indictment is returned against the accused within that reasonable time, charging the same offense, the accused is no longer entitled to a preliminary hearing. This construction of Section 15-11-1 recognizes fully the legislative intent that an accused be given an inquiry into probable cause within a reasonable time of his arrest. In the case at bar appellant was indicted twenty days after his demand for a preliminary hearing. It is our opinion that twenty days is a reasonable time for an indictment to be returned which can act to cut off the need for a preliminary hearing per Duncan. This construction comports exactly with the directions in Proposed Rule 5.1(a)(4) and is in harmony with the principles negating any constitutional requirement in Alabama that there be two inquiries into probable cause. Duncan, 369 So.2d, at 887.

We believe that the legislative intent would be defeated, if, as appellant argues, the “30 days” in Section 15-11-1 was construed to mean that an accused, upon demand, has an absolute right to a preliminary hearing within thirty days of his arrest. If appellant’s position were accepted, the very real possibilities of an administrative nightmare become apparent: every accused would have the option of waiting until the twenty-ninth or even thirtieth day following his arrest to demand a preliminary hearing. Compliance with such demands clearly would force unreasonable time limitations upon the courts to provide the hearing. Assuredly, in this day of burdened dockets the legislature did not intend to impose any such last second timetables on the judiciary. Moreover, laying administrative practicalities aside, it is difficult to fathom what useful purpose would be served, or how an accused’s substantial rights could be preserved, by requiring an overnight or immediate preliminary hearing. It is only logical that the legislature, in enacting Section 15 — 11—1, intended that the trial court have some amount of time, a reasonable time, to set a preliminary hearing after the accused demands one. Indeed, Proposed Rule 5.1(a) definitively provides for this very concept.

While appellant’s interpretation of Section 15-11-1 is a possible and proper one from a standpoint of pure linguistics, faced with the stark realities of administrative limitations, we have no alternative but to interpret § 15-11-1 in favor of the State’s position. Certainly, the legislature did not intend to require the impossible of our courts by enacting that statute. We fully recognize that criminal statutes must be strictly construed in favor of those sought to be subject to their operation; however, the interests of justice demand that criminal statutes not be construed irresponsibly. Unfortunate language or phrases within a statute, such that more than one interpretation is possible syntactically, does not sanction a construction of that statute at odds with common sense and practicality of application. Our interpretation of the “30 days” described in Section 15-11-1 insures that an accused’s substantial rights are at all times protected.

In summary, we do not see how appellant could have been prejudiced by receiving an inquiry into probable cause within twenty days of his demand for a preliminary hearing. In light of the statute’s intended purpose of providing an accused an inquiry into probable cause, per Duncan, no harm could have occurred since appellant was indicted within a reasonable time of his demand for a preliminary hearing. We hold, therefore, that appellant’s petition for writ of mandamus for the District Court to provide a preliminary hearing was properly denied. In light of the foregoing discussion we find the State’s construction of Section 15-11-1 to be correct.

Appellant next contends that the trial court erred to reversal in overruling his motion to strike certain jurors for cause due to their affirmative response to the following questions during their voir dire examination:

“1. Do you believe that a psychologist cannot through interviewing and testing determine the sanity or insanity of an individual at a point in time some four months prior to the interviewing and testing?

“2. Do you believe that insanity pleas are gimmicks used by defense lawyers?” The record demonstrates that eleven prospective jurors responded affirmatively to question one and that those same jurors plus one additional juror responded affirmatively to question two. Appellant alleges that the trial court abused its discretion in refusing to strike those jurors for two reasons: one, the jurors’ answers show that they had fixed opinions as to his guilt; and, two, their answers indicated a bias against his insanity defense.

In support of his argument, appellant relies on Christian v. State, 351 So.2d 623 (Ala.1977); Graham v. State, 383 So.2d 892 (Ala.Cr.App.), cert. denied, 383 So.2d 895 (Ala.1980), and Woods v. State, 364 So.2d 1178 (Ala.Cr.App.), cert. denied, 364 So.2d 1186 (Ala.1978), for the following proposition: the question of insanity at the time of commission of a crime is a matter to be determined by the jury from a consideration of all the evidence; and while a jury may reject all expert testimony in making its determination, though it is without conflict, the jury may not arbitrarily ignore opinion testimony of experts in insanity cases, but must weigh those opinions with all the other evidence. Appellant contends that affirmative responses to the two questions set out above demonstrate a predisposition to arbitrarily ignore expert testimony on the issue of his insanity at the time of the commission of the crime. While there is some rationale to appellant’s arguments, we cannot find, as a matter of law, that the trial court abused its discretion in permitting the complained of jurors to remain on the jury venire.

Ala.Code § 12-16-150 (1975) provides a statutory list of grounds for which a juror may be challenged for cause by either party. Contained within that list is § 12-16-150(7), relied upon by appellant, which states that a challenge for cause lies where a juror “has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.” In addition to the grounds for challenge for cause under § 12-16-150, grounds for challenge for cause under the common law still exist, when not inconsistent with the section. Mullis v. State, 258 Ala. 309, 62 So.2d 451 (1952); Felton v. State, 46 Ala.App. 579, 246 So.2d 467 (1971).

It is evident that the jurors appellant challenged for cause did not have a “fixed opinion” as to his guilt or innocence. A “fixed opinion” which will bias a verdict is one that is a conviction or prejudgment, a strong or deep impression which closes the mind of a juror and combats the testimony and resists its force. Fuller v. State, 269 Ala. 312, 113 So.2d 153, 161 (1959), cert. denied, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960). In Peterson v. State, 227 Ala. 361, 150 So. 156, 159 (1933), cert. denied, 291 U.S. 661, 54 S.Ct. 439, 78 L.Ed. 1053 (1934), our Supreme Court said:

“What is said in Long v. State, 86 Ala. 36, 5 So. 443, 447, finds application here: “ ‘While some of the expressions in the opinions may not be sufficiently limited or qualified for use as general definition, the following may be deduced from the cases, when compared with each other, as expressing the meaning of a fixed opinion which would bias the verdict. The mere formation of an opinion, founded on rumor or hearsay, which is subject to change on hearing the evidence, and leaves the mind of the juror free to impartially consider the whole evidence, without giving undue credence to that which tends to prove the facts as heard, and to apply to the evidence the law as pronounced by the court, is not sufficient to disqualify. But an opinion, whether founded on rumor or conversations with witnesses, or on observation, which is a conviction, a prejudgment, disqualifying the juror to impartially consider the whole evidence, — that which tends to prove the facts as heard, as well as that which contradicts or explains, — and to apply free from bias the law as given in charge by the court, is a fixed opinion which will bias the verdict. The mind of the juror should be in such a state of freedom, that he is capable of giving to the accused the weight of the presumption of innocence, and the benefit of a reasonable doubt. The statute affirms, in concise, intelligible, and comprehensive language, the common-law rule, as declared by Chief Justice Marshall in Burr’s trial. “That light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to him.”
“ ‘The sufficiency of the cause of challenge is determined by the trial court, and the inquiries are addressed to the conscience of the juror under oath. He is examined touching his qualifications, in the presence of the judge, who sees his manner of answering the questions, and the probing of his conscience, which is often times more clearly indicative of his disinterestedness or bias, than the mere words used. The reviewing court, therefore, should exercise caution, and the finding of the trial court should not be set aside, unless it affirmatively appears, that, on the answers of the juror, taken as a whole, he entertained a fixed opinion which would bias his verdict. ’ ” (Emphasis added.)

Moreover, as was stated by this court in Tidmore v. City of Birmingham, 356 So.2d 231, 234 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.1978): “[t]o disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render.” (Emphasis added.)

Initially, it must be noted that the trial court asked the prospective jurors specifically, “Do any of you have a fixed opinion as to the guilt or innocence of this defendant?” No affirmative response was made by any prospective juror. Their silence at this point demonstrates unequivocally that none of the jurors had a predisposition or fixed opinion, one way or other as to appellant’s guilt or innocence. Neither can it be said that in the affirmative responses to the two questions, in the light of Christian, supra, and its progeny, we find any indication that those prospective jurors would arbitrarily ignore expert testimony dealing with the issue of appellant’s insanity in rendering a verdict, much less that they had a fixed opinion to arbitrarily ignore such testimony. At most, those prospective jurors’ answers demonstrate skepticism as to a psychologist’s ability, given a unique set of facts, to determine a person’s sanity, and as to why some insanity pleas might be made. Clearly, these expressions of skepticism cannot be held to constitute, in any fashion, a fixed opinion of appellant’s guilt, or innocence, to an extent which would bias the verdict the prospective jurors would be required to render.

Since the prospective jurors did not exhibit a fixed opinion as to the guilt or innocence of appellant which would bias their verdict, appellant’s ground for challenge must rest on common law. Thomas v. State, 373 So.2d 1167, 1169 (Ala.1979). When a common law ground is at issue there must be a showing of absolute bias leaving nothing to the discretion of the trial court, or there must be a mixed question of law and fact to be determined by the trial court exercising its sound discretion. Thomas, supra; Mullis v. State, 258 Ala. 309, 62 So.2d 451 (1952). We find that this case presents a matter within the discretion of the trial court. A trial court’s ruling on challenges for cause based on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Price v. State, 383 So.2d 884 (Ala.Cr.App.), cert. denied, 383 So.2d 888 (Ala.1980); Motes v. State, 356 So.2d 712 (Ala.Cr.App.), cert. denied, 356 So.2d 720 (Ala.1978). Appellant’s allegations fall far short of proving absolute bias and there can be no contention that the juror’s responses constituted probable prejudice as defined in Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961), and cases cited therein. Based on the foregoing principles, we cannot say, as a matter of law, that the trial court abused its discretion in overruling appellant’s challenges for cause.

Appellant’s third contention of error is the insufficiency of the State’s evidence. Appellant particularly stresses that he was insane at the time of the commission of the crime. A review of the facts proves these arguments to be without merit.

As has been stated a number of times, this court is required to review the evidence presented in the light most favorable to the State Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not substitute its judgment for that of the jury. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). It is not the function of this court to reweigh the evidence, but to accord all legitimate evidentiary inferences to the State. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979).

Ms. Maureen Anakwe was called as the State’s first witness to establish the corpus delicti. The deceased was her younger sister. Ms. Anakwe stated that she and the deceased were citizens of Nigeria in Africa and that they were attending Alabama A & M University in Huntsville at the time the deceased was killed. Appellant is also a Nigerian. Ms. Anakwe knew the appellant to be the deceased’s boyfriend. She was not aware appellant and the deceased were having any problems and never observed them have any fights.

Ms. Casandra Arthur testified that she knew appellant and the deceased at A & M and had a telephone conversation with the deceased at about 12:45 a. m. on October 13, 1979. Ms. Arthur had planned to see the deceased later that afternoon.

Ms. Linda Ola, the deceased’s roommate at A & M, testified that she was also a citizen of Nigeria and that she knew appellant as the deceased’s boyfriend. Appellant frequently spent the night with the deceased and could let himself into their apartment. Appellant and the deceased also shared the same car. They had lived together for approximately ten months.

Ms. Ola testified that she left work at 1:00 p. m. on October 13 and went to her apartment. As she walked through the living room going to her bedroom Ms. Ola heard the deceased call her name. She went to the deceased’s bedroom door, but found it locked. Ms. Ola did not hear any struggling, but, when she went to her bedroom to call the police, she discovered she could not make any calls out. Ms. Ola stated that, as she was thinking about what to do next, appellant came into her bedroom and told her he had killed the deceased and that she “should run look at her body on the floor.” Ms. Ola stated that appellant “looked mean” and “was sweating.” Ms. Ola further stated that appellant told her she would be a “third party” if she didn’t take a look at the deceased’s body.

Ms. Ola testified that, when she saw the deceased lying on the floor, appellant did not say anything. “He was just passing about the apartment.” When she asked him what happened, appellant told her, “How could the girl I love wouldn’t love me?” Appellant then told Ms. Ola not to call the police until he had killed himself; “he was asking me for poison or anything he could take to kill himself. ... ”

Ms. Ola stated that appellant next ran downstairs and got a gallon of anti-freeze from the trunk of his car. This gave Ms. Ola an opportunity to run to the next building and call the police. Ms. Ola saw appellant take the anti-freeze back upstairs, but she didn’t see him actually drink any.

In addition, Ms. Ola testified on cross-examination that she knew appellant and the deceased had had “misunderstandings,” but that she had never seen “physical combat” between the two. On one occasion Ms. Ola saw a “big hole on the wall” in the deceased’s bedroom which the deceased told her resulted from a “quarrel.” Ms. Ola never saw the deceased use a knife on appellant: “Most of the time they would normally be in the bedroom when they had a physical combat, or when I wasn’t home, so I really don’t know much about that.”

Ms. Ola further stated that appellant was not crying or screaming when he told her he had killed the deceased, but that his voice was very emotional. Ms. Ola observed a cut on appellant’s shoulder and on the palm of one of his hands. She did not see appellant with a knife, but saw one on the floor beside the deceased. The knife was Ms. Ola’s kitchen knife and was bloody.

Mrs. Brenda Bradford Morris of Emergency Medical Services, Inc., testified that appellant walked over to her and her partner when they arrived on the scene and led them upstairs to the deceased. The deceased had blood on her face and showed no signs of life. Mrs. Morris bandaged a superficial cut on appellant’s wrist and asked him what happened. Appellant “stated that he had had a bad fight.” Mrs. Morris stated that appellant was sitting in a chair very calmly. “[H]e had a look on his face to me like a child that had been frightened.” Mrs. Morris testified that appellant may have been in shock, but was not acting wild. Appellant calmly told her he had drunk lighter fluid and anti-freeze and later got into the ambulance by himself. On the way to the hospital appellant told Mrs. Morris she “didn’t need to be afraid of him, he said that he was not usually this way.”

James Parker, a crime scene technician with the Huntsville Police Department, testified that he arrived at the scene at 2:05 p. m. and made photographs and diagrams at the scene. A number of exhibits pertinent to the crime scene were admitted into evidence during his testimony.

James Kilbourn, a toxicologist with the Alabama Department of Forensic Sciences, performed an autopsy on the body of the deceased and determined the cause of death to be hemorrhage due to stab wounds to the neck and chest. Mr. Kilbourn testified that the deceased had been stabbed and cut numerous times. The wounds were concentrated, but not confined, to the deceased’s head, neck and chest. Mr. Kilbourn further stated that many of the wounds, including one wound which could have been fatal, could possibly have been made with State’s Exhibit 8, the kitchen knife found lying beside the deceased. It was Mr. Kilbourn’s opinion that several of the wounds could not have been made with State’s Exhibit 8.

At the conclusion of Mr. Kilbourn’s testimony the State rested its case and appellant’s motion to exclude was overruled.

Appellant called as his first witness a psychologist, Dr. John C. McMillan of the Huntsville Madison County Mental Health Center. Dr. McMillan testified that he examined appellant on January 24 and February 19,1980, and administered psychological testing. Based on his interviewing and testing, Dr. McMillan was of the opinion appellant was “suitable to stand trial,” but “not competent at the time of the commission of the crime.” Dr. McMillan testified that at the time the tests were administered appellant was “not legally insane, he was not crazy, he was not paranoid, he was not a manic depressive. . . . Essentially he has no mental psychological or psychiatric history.”

Appellant related in detail to Dr. McMillan the events preceding the deceased’s death, his general relationship with the deceased, and three previous knife attacks which the deceased had initiated against him. Appellant told Dr. McMillan that on prior occasions when the deceased had become violent “he had managed to either talk her down or get the knife away from her. On one of those occasions he indicated that he actually received two knife wounds.”

Appellant then described with particularity to Dr. McMillan the misunderstanding he and the deceased had the day he killed her. Appellant and the deceased had been arguing over whether she would take him to work or not. For the sake of clarity we here include portions of Dr. McMillan’s testimony:

“She still refused to take him to work, and he said to her, T will not trek to work,’ meaning he would not walk to work. He indicated that it was at that point that she drew her hand out from under some covers on the bed, that she was sitting on the bed, and that she attacked him furiously with a knife.
“After she pulled it out, he says that she came toward him. By this time he had moved away from the door during the conversation and she was now between him and the door leading from the bedroom, that she was slashing with the knife furiously. And he made a slashing motion like this, that he was warding off the blows, the stab blows, that he was hit on the hand, and that he was hit in the shoulder.
“He said there was a tremendous amount of blood, his blood, and that when he saw his own blood he thought he was bleeding to death, that a vessel, an important vessel had perhaps been cut, and that he was dying.
“He indicates that he does not remember actually taking the knife away from her, although he says he did in some way, and he indicated to me that he could not remember, could not visualize — could not remember visually any of the stab blows that he delivered to her.
“[H]e believed that he killed her.
“I asked him how many [stab blows] that he would have estimated that he had delivered, and he said that he would have estimated four or five. He indicated to me that he had already been informed that it was in the neighborhood of 30 to 35, and he was very surprised.”

In conclusion, Dr. McMillan gave his opinion that appellant had experienced an acute psychotic reaction and an acute schizophrenic reaction prior to stabbing the deceased, and that he was not responsible or able to appreciate the criminality of what he had done at the time he committed the offense. Dr. McMillan further stated that appellant did not “regain” his sanity until he left the hospital, some 48 to 72 hours after the killing.

Kirk Landau, a third year medical student at the University of Alabama, testified that he saw appellant in the Huntsville Hospital emergency room on October 13, 1979, and sutured wounds on appellant’s left shoulder and right hand. Mr. Landau testified that appellant had already received a gastric lavage of his stomach to absorb any toxins he had injested. Mr. Landau stated that appellant was “very agitated that evening,” that at one point he commented that the laboratory technician was his girl friend, and that at another point,“he asked his mother for forgiveness for what he had done,” though his mother was not at the hospital.

Three professors at Alabama A & M, two school administrators, three fellow students and a vice president of a Huntsville bank testified generally as to appellant’s good reputation in the community and as to his good reputation for truth and veracity. The professors and school authorities considered appellant an exceptionally bright student. In most of his classes he made all A’s.

Appellant next testified in his own behalf. He stated that he first met the deceased in the fall of 1977 when she arrived at the A & M campus from Nigeria. They had a close relationship, shared their personal belongings and were together almost every day. Appellant testified that he and the deceased occasionally had fights, and then described in some detail the altercation that erupted on October 13, 1979, which resulted in his girl friend’s death. Appellant’s in-court narration of what happened' was substantially similar to the account he gave to Dr. McMillan. He specifically remembered using State’s Exhibit 8 to kill the deceased and of continuing to use “the knife on her until she fell.” “I don’t think I used another knife.” Appellant also admitted drinking lighter fluid and anti-freeze in an attempt to commit suicide after killing the deceased, and recollected having his stomach pumped out at the emergency room. Following appellant’s testimony the defense rested its case.

Appellant’s employer, Joel Beasley, testified in rebuttal that appellant came in about 11:45 a. m., fifteen minutes before he was scheduled to work. Appellant told Mr. Beasley that he was sick and wanted to go to the hospital and then left. “He appeared tired, worn or something like that.” Mr. Beasley classified appellant as a dependable “good worker” and stated that in his opinion appellant was sane.

Officer Dewey Miller of the Huntsville Police Department stated that he observed appellant at the scene and that appellant refused to say anything except that he “drank some anti-freeze and brake fluid and wanted to go to the hospital.” Officer Miller testified that appellant was not jumping around wildly, frothing at the mouth, waving his arms, or doing anything to indicate to him that he was irrational.

Dr. Robert Dean Taylor, a resident physician at Huntsville Hospital, saw appellant on October 13,1979, and found him to be in stable condition. “During the encounter I had with Mr. Nobis, he was rational and cooperative with me during my examination and my treatment of him in the emergency room.” Dr. Taylor found appellant alert, oriented as to time and place and cooperative. Appellant told Dr. Taylor he had killed his girl friend and appeared depressed. “I personally did not see him have any hallucinations or hear him verbalizing any ...” Dr. Taylor further stated that appellant spoke rationally at all times, had no problems making himself understood and was “in control of himself.” In Dr. Taylor’s opinion, appellant was sane and knew right from wrong at the time he saw him at the hospital.

Jerry Hammonds of the Huntsville Police Department testified that he saw appellant in the Huntsville Hospital emergency room. After being given his Miranda warnings, appellant told Officer Hammonds that he did not want to talk and asked for an attorney.

Based on the foregoing recitation of facts, there can be no doubt that each element of second degree murder was firmly established. Ala.Code § 13-1 — 70 (1975); Miller v. State, 145 Ala. 677, 40 So. 47 (1906); Ezell v. State, 103 Ala. 8, 15 So. 818 (1894); Smith v. State, 380 So.2d 345 (Ala.Cr.App.1980); Commander v. State, 374 So.2d 910 (Ala.Cr.App.1978), cert. denied, 374 So.2d 921 (Ala.1979).

Moreover, in applying the principles of law which are outlined in Christian v. State, 351 So.2d 623 (Ala.1977) and its progeny to the facts in this case, we cannot hold, as a matter of law, that the jury arbitrarily chose to ignore expert testimony on the question of appellant’s insanity. Appellant did not present overwhelming testimony such as would overcome the presumption of his sanity. Instead, conflicting evidence was presented on the question of his sanity both by expert and lay witnesses. We think the preponderance of the evidence demonstrates that appellant was sane at the time he killed the deceased. Clearly, in this case the question of whether appellant was sane or insane at the time of the commission of the offense was for the jury to decide. Their verdict is entitled to great weight. Christian, supra.

During closing argument the District Attorney made the following remark which appellant alleges should cause a reversal of this case:

“MR. SIMPSON: They would have them change the laws so they can spend time in a mental institution and then be excused for their crime.”

Appellant made a general objection to this “line of argument” which was overruled by the trial court. Appellant made no other objection to any part of the State’s argument. Indeed, no other part of the State’s closing argument appears in the record. We are called upon to either affirm or reverse this cause based on this one statement.

Appellant contends in the first instance that the District Attorney’s remark was so grossly improper as to have caused ineradicable error, even had he failed to make objection. Christian, supra; Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973). Appellant next argues that should the District Attorney’s remark not be found to come within the ineradicable error rule, his timely objection was due to be sustained. Appellant cites Dunn v. State, 277 Ala. 39, 166 So.2d 878 (1964); Boyle v. State, 229 Ala. 212, 154 So. 575 (1934); and Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (Ala.1979) as examples where reversible error has occurred because of the trial court’s failure to sustain objections to improper argument by the State. Appellant also cites Meredith v. State, 370 So.2d 1075 (Ala.Cr.App.), cert. denied, 370 So.2d 1079 (Ala.1979), as an example where reversible error would have occurred but for the trial court’s sustaining the defendant’s objection.

We find the facts in the cases cited by appellant to be distinguishable from the facts before us. Initially, it must be pointed out that the District Attorney’s remark here does not constitute ineradicable error. The remark comes nowhere close to those statements condemned in Christian, supra and Allred, supra. Secondly, in each case relied upon by appellant the objectionable remarks make personal reference to the accused. There is no doubt in those cases as to whom the District Attorney was referring. In this case the remark objected to makes no personal reference whatsoever. Neither appellant’s name nor the word “defendant” appears in the statement. The subject of the remark, “They”, is indefinite as to its reference and could refer to any number of people. Thirdly, in many of the cases cited by appellant the objectionable remarks were emphasized by repeated improper argument along the same vein. Here, even though the objection to the remark was overruled, there is no indication that the District Attorney continued in an improper line of argument.

In fact, so little of what the District Attorney said has been recorded for our review that the context of the remark cannot be ascertained. In this sense appellant’s objection was fragmentary. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973); Williford v. State, 365 So.2d 1257 (Ala.Cr.App.1978) cert. denied, 365 So.2d 1258 (Ala.1979). In McClary, supra, our Supreme Court quoted with approval the following language found in Gray v. State, 19 Ala.App. 550, 98 So. 818, 819 (1924):

“The remarks of the solicitor to which exceptions were reserved are too fragmentary to present the questions insisted upon ... in order for this court to intelligently pass upon the question, enough of the remarks of the solicitor must be incorporated in the record to inform the court as to what was really said, and not mere disjointed sentences of the solicitor’s speech.” (Emphasis added.)

Without more of the District Attorney’s argument before us for review, we cannot hold that the trial court erred to reversal in failing to sustain appellant’s objection. We believe application of Rule 45, Alabama Rules of Appellate Procedure, to be appropriate in this particular case.

After carefully examining the record we find no merit to appellant’s cumulative error argument. As was stated in Arant v. State, 232 Ala. 275, 167 So. 540, 544 (1936), “a trial is a legal battle, a combat in a sense, and not a parlor social affair.”

We have considered each issue raised by appellant. In addition, we have searched the record, as required by law, for errors injuriously affecting the substantial rights of the appellant s.nd have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except BOWEN, J., who concurs in part and dissents in part with opinion.

BOWEN, Judge,

concurring in part and dissenting in part.

With regard to the matter of a preliminary hearing, I agree that the “30 days” of Section 15-11-1 means that an accused has thirty days following his arrest to demand a preliminary hearing. However, I strongly disagree with the following holding of the majority opinion.

“If the accused makes such a demand within thirty days of his arrest, the preliminary must be held within a reasonable time following his demand; however, based on Duncan and the persuasive authority of Rule 5.1(a)(4) of the Proposed Alabama Rules of Criminal Procedure, if an indictment is returned against the accused within that reasonable time, charging the same offense, the accused is no longer entitled to a preliminary hearing.”

I adhere to my dissent in Duncan v. State, 369 So.2d 885, 888 (Ala.Cr.App.1979).

Since the majority of this Court finds persuasive Rule 5.1(a)(4) of the Proposed Rules of Criminal Procedure, it would do well to recall and consider the last paragraph in the “Comment” following the rule.

“While Section 4-106(f) of Act 1205, Regular Session 1975 (Section 15 — 11—1, Code of Ala.1975), requires a preliminary hearing in all eases unless waived, this requirement has been modified by the addition of Rule 5.1(a)(4), which precludes preliminary hearings being held after return of an indictment. The resulting denial to defendants of an absolute right to the discovery mechanism of a preliminary hearing is adequately offset by other rules which provide defendants with formal methods of discovery designed to eliminate trial ‘by ambush’ and by expanded pre-trial motion practice.”

Through such interpretation the majority renders conditional an absolute. It gives new meaning to the word “absolute” which is defined as “complete and unconditional; having no encumbrances; final.” The American Heritage Dictionary of The English Language (1969); 1 C.J.S. Absolute p. 373 (1936). Under this construction, the legislature must now enumerate every instance when “absolute” actually means absolute or else it runs the risk of having the word transposed into the conditional. Under such a principle of statutory construction all words lose their plain and clear meaning.

By interpreting the “absolute” guarantee of Section 15-11-1 as conditional, the majority has denied the accused an important right the legislature obviously thought he should have. Under the guise of the “stark realities of administrative limitations”, this Court has denied the defendant a clear statutory right. With due respect to the majority, their interpretation of Section 15-11-1 violates and misapplies fundamental rules of statutory construction and overlooks or ignores the fact that discovery is an important tool for defense counsel. Their construction destroys confidence in the judicial system for if “absolute” is conditional, then always can mean never and never mean sometimes. The legislature gave the accused an absolute right to a preliminary hearing. Like it or not, we must afford him that right.

While I concur in the remaining portion of the majority opinion, I must respectfully but strongly dissent as indicated.

      . Judge McCoy and appellant’s lawyers incorrectly stipulated that appellant was arrested on October 15. The evidence is overwhelming that appellant was, in fact, arrested October 13 as set out above. Because appellant was eventually denied a preliminary hearing altogether, whether he was arrested on October 13 or 15 is not critical to a resolution of the issues in this particular case.

      . Monday, November 12, 1979, the thirtieth day following October 13, was a State holiday commemorating Veteran’s Day.

      . This problem in Section 15-11-1 is partially recognized and remedied by Rule 5.1(a) in the June 1, 1977 draft of the Proposed Alabama Rules of Criminal Procedure, which reads, in part, as follows:
      “A defendant charged by complaint with the commission of a felony may demand a preliminary hearing within 30 days after arrest. If demanded the preliminary hearing shall commence in district court within 20 days following the demand for preliminary hearing unless:

        (4) an indictment charging the same offense has been returned by the grand jury.”
      The proposed rules, however, are in no way binding, but can only be looked at as persuasive authority by this court.

      . See also State ex rel. Graddick v. Russell, 373 So.2d 656 (Ala.Cr.App.1979); Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied 392 So.2d 1266 (Ala. 1981).


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Ex parte Kevin Udoka NOBIS. (Re: Kevin Udoka Nobis v. State of Alabama).
    80-563.
    Supreme Court of Alabama.
    July 24, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES, and BEATTY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Stanley W. FERGUSON v. STATE.
    1 Div. 179.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.
    Ian F. Gaston of Gaston, Bryant, Gaston & Burns, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was convicted of rape and sentenced to imprisonment in the penitentiary for a term of twenty years. At arraignment, in the presence of counsel, he interposed a plea of not guilty. After sentence was imposed he gave written notice of appeal and waived the benefit of a suspended sentence. The judgment entry reflects that appellant was given one year, four months and seventeen days credit for time spent in jail prior to trial.

The evidence presented by the State made out a clear-cut case of rape and there is no contention to the contrary. Appellant did not testify nor was any testimony offered in his behalf.

The prosecutrix testified that, on the afternoon of January 29, 1979, she attended an open house party given by her husband at the University of South Alabama Medical Center where he was employed. At approximately 5:30 p. m., she and her husband left the party and went home in separate cars. Upon arriving home she got her checkbook and went shopping at the Del-champs store located on the corner of McGregor and Airport Boulevard. She bought three bags of groceries and carried them to her car. As she was putting the groceries on the passenger’s side of the front seat of her car she noticed a dark green station wagon drive up and stop near her car. It was occupied by two white males. One of the men remained in the car and the other got out and moved as if he were going into the store. Suddenly and without warning this man came up behind the prosecutrix and placed what appeared to her to be a straight razor on her neck. He ordered her to get in her car and drive. She protested and asked him what he was going to do and he replied, “You will find out.”

The prosecutrix started driving but told the man she could not see well at night. She was then ordered to crawl over him and the man started driving. The green station wagon followed close behind. Appellant ordered the prosecutrix to get out of her car and into the station wagon. All of her clothes were removed and appellant ordered her to have oral sex with him and then forced her to have sexual intercourse with him. After gratifying his lust he left the scene purportedly to buy cigarettes, driving the prosecutrix’s car. After he drove away she was forced to have sexual intercourse with appellant’s companion. When appellant returned he forced the prosecutrix to have sexual relations with him again. Appellant then drove the victim back to Del-champs parking lot where he got in the station wagon and the two assailants drove away.

The prosecutrix returned home and fell in the door of her home. She was finally able to tell her husband that she had been raped. Later she, her husband and Detective Cliff Lockett drove back to the scene of the crime. The prosecutrix reported to the officers that two cameras and a C. B. radio were stolen from her automobile that night. The two cameras were later returned to her by Detective Lockett.

The rape was committed on Monday night and the following Friday the prosecu-trix attended a lineup of six persons and without the slightest hesitation she identified appellant and his companion as being the two men who raped her. She also made a positive in-court identification of appellant as the man who raped her twice on that Monday night.

Officer Eugene Ganoe of the Mobile Police Department testified concerning the lineup in which appellant appeared. Over objection Officer Ganoe stated that he told the prosecutrix on the evening of the lineup, “I told her about as I do most all people .. We have someone that may or may not be the person who attacked her. _I told her I was gonna have six people come up to the glass and turn ninety degrees, rotate, then go back and get into line. _ I told her don’t go out with the idea that you must pick someone, that she had to pick someone. That he may or may not be out there.” Officer Ganoe further testified that after the prosecutrix viewed the lineup she immediately said, “That’s them right there sir.” She identified appellant and his companion __ Thomas R. Selyn. Officer Ganoe stated that he did not tell the prose-cutrix that her assailants were going to be in the lineup.

Officer Ganoe also testified that he gave appellant a waiver of rights form and read it aloud to him and gave him a copy to read along with him; that appellant signed the form and told the officer that he understood what he was reading. The waiver form reads as follows:

“I, Stanley Fergusen, have been informed by the undersigned Law Enforcement Officers, prior to being questioned by them, that I am suspected of the offense of rape in Mobile County, Alabama on the l-29th-79, and have been informed of my rights as follows:
“1. That I may remain silent and do not have to make a statement at all.
“2. That any statement which I might make, may and will be used against me in Court.
“3. That I have a right to consult with an attorney before making any statement and to have such attorney present with me while I am making a statement.
“4. That if I do not have enough money to employ an attorney I have the right to have one appointed by the Court to represent me, to consult with him before making any statement, and to have him present with me while I am making a statement.
“That if I request an attorney no questions will be asked me until an attorney is present to represent me.
“That at any time during the questioning I may request that the questioning be stopped and it shall be stopped.
“After having my rights explained to me, I freely and voluntarily waive my right to an attorney. I am willing to make a statement to the officers. I can read and write the English language, and fully understand my right to an attorney. I have read this waiver of counsel and fully understand it.
“No threats or promises have been made to me to induce me to sign this waiver of rights and counsel, and to make a statement to the officers on this 2nd day of February.”

This witness further testified that he did not threaten appellant, or promise him anything, or offer any rewards or other inducements to get him to sign the waiver of rights form. Officer Ganoe did not question appellant concerning the charge against him but left that responsibility to Officer O. C. Lockett who was coming on duty to work his shift. However, he did tell Officer Lockett that appellant had been given the Miranda rights and had signed the waiver of rights form.

Officer Lockett interrogated appellant the night of the lineup. The voluntariness predicate was laid and appellant admitted to him that he and the co-defendant grabbed the prosecutrix in the parking lot, drove her to a wooded area and forced her to have sex with them. He also testified that he had known appellant for fifteen years and knew his mother with whom appellant was then living. During his interrogation of appellant he learned from him that the two stolen cameras were in the top of his closet at his home. Officer Lockett went to appellant’s home and told his mother where the cameras were located and she surrendered them to him. Lockett returned the cameras to the prosecutrix and her husband.

Appellant made a motion to suppress both the in-eourt identification of appellant by the prosecutrix and the out-of-court identification made at the lineup. A voir dire examination was conducted out of the presence and hearing of the jury at which hearing both Officer Ganoe and the prose-cutrix testified. The motion to suppress was overruled and denied. At the close of the voir dire hearing Officer Ganoe was recalled to the witness stand. The following exchange occurred between counsel for the defense, the court and the prosecutor:

“Mr. Pennington: No other questions.
“The Court: Sergeant, we’re still going to need you to testify in the presence of the jury.
“Mr. Pennington: Well, he was going to testify in the presence of the jury on the lineup now anyway; wasn’t he?
“Mr. Hanley: Lineup and the . . .
“Mr. Pennington: We’ll just go ahead and put him on, and let him go home.
“The Court: All right. You have no objection to that procedure, Mr. Pennington?
“Mr. Pennington: No, sir.
“The Court: All right. Bring the jury in. “Mr. Hanley: Will you tell the jury that we’re interrupting the . . .
“The Court: I’ll let you do that, Mr. Hanley.
“Mr. Hanley: Ladies and gentlemen of the jury, we’re going to interrupt Sherry Mason’s testimony for a moment. Sergeant Eugene Ganoe is a Detective Sergeant at the Mobile City Police Department, and is now working the midnight shift, eleven to seven. He hasn’t had any sleep, and if we wait in order he may not get any sleep; so we’re going to put him on and interrupt the testimony with no objection by Mr. Pennington, so we can get Detective Ganoe home to bed.”

Sergeant Ganoe went on to testify before the jury to the out-of-court identification by the prosecutrix at the lineup as follows:

“Q. What did Sherry say when she looked and saw those six men?
“Mr. Pennington: We object to it, Your Honor, as hearsay.
“Mr. Hanley: That’s an exception to hearsay.
“The Court: Overruled.
“Mr. Pennington: We except, Your Hon- or.
“A. She walked up to the door, and instead of waiting till they all walked up and looked at him, and then told me if one of ’em was the suspect, she said,
‘That’s them right there, sir.’ She pointed out number one.
“Q. She pointed out both Selyn and Ferguson?
“A. Yes, sir.”

Appellant contends the trial court erred in allowing Sergeant Ganoe to testify before the prosecutrix completed her testimony and before she identified appellant as one of the men who raped her. The record reflects that the testimony of the victim was interrupted just before she made an in-court identification so that appellant’s counsel could take the victim and Sergeant Ganoe on voir dire examination out of the presence and hearing of the jury relative to the motion to suppress the identification. The motion to suppress the identification was denied. Then the issue of the admissibility of appellant’s confession was taken up outside the presence of the jury. The court ruled that the confession was freely, voluntarily and knowingly made and was constitutionally admissible into evidence. It was at this point that appellant’s counsel suggested that Sergeant Ganoe be called to the witness stand on the lineup identification prior to the victim being recalled to complete her testimony.

Clearly, there was no calculated effort on the part of the state to bolster in advance the victim’s in-court identification or her testimony concerning her out-of-court identification of appellant at the lineup, as contended by appellant’s counsel.

This issue was decided adversely to appellant’s contention by this court in Abercrombie v. State, Ala.Cr.App., 382 So.2d 614, certiorari denied, Ala., 382 So.2d 616, wherein we held:

“Any review of the law on Alabama evidence must begin with a reference to the works of Judge J. Russell McElroy. In C. Gamble, McElroy’s Alabama Evidence, Section 273.01, the rule is stated:
“ ‘A statement which is useful in identifying a person, time, place or other thing is admissible, for that purpose as a hearsay exception. The statement, of course, may not be considered as evidence of the truth of the matter asserted but only for the limited purpose of identification.’
“While there is a split of authority on this issue among the different states, the rule above cited is the law of Alabama, Anno. 71 A.L.R.2d 449, at 482-485, 491 (1960). The fact that a third person observed another identify the defendant is ‘an independent fact to which the witness .. . could testify just as to any other fact.’ Key v. State, 240 Ala. 19, 20, 197 So. 364, (1940), relying on Green v. State, 96 Ala. 29, 11 So. 478, (1891); see also State v. Wilson, 38 Wash.2d 593, 231 P.2d 288, cert. denied, 342 U.S. 855, 72 S.Ct. 81, 96 L.Ed. 644 (1951).”

Sergeant Ganoe’s testimony concerning the victim’s identification of appellant at the lineup constituted a well recognized exception to the hearsay rule and was properly admitted.

In light of what we have written and adjudicated authorities dealing with the law of Alabama we see no need to further extend this opinion.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Stanley W. FERGUSON. (Re Stanley W. Ferguson v. State of Alabama).
    80-620.
    Supreme Court of Alabama.
    July 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Carolyn GOODMAN v. STATE of Alabama.
    3 Div. 272.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Richard D. Shinbaum, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Carolyn Goodman was indicted under § 13A-8-17, Code of Alabama 1975, for “receiving, retaining, or disposing of stolen property,” a gold necklace with a gold cross, “while knowing that it was stolen or having reasonable grounds to believe that it had been stolen.” The charge in the indictment was for a first degree offense, the stolen property allegedly worth $1,500.00. The jury returned a verdict of guilty of “second degree receiving stolen property” under § 13A-8-18, Code of Alabama 1975, since proof at trial showed the value of the stolen property to be less than one thousand but greater than one hundred dollars.

The trial court set sentence at seven years’ imprisonment in the penitentiary after a thorough pre-sentence investigation.

Appellant’s subsequent motion for a new trial, based on the sufficiency of the evidence and the trial court’s actions in overruling several objections of the appellant during trial, was denied.

During the first week of September, 1979, Charles Barnes burglarized the apartment of Barbara Wingo in Shelby County, Alabama, taking, among other items, a gold necklace with a gold cross. Soon thereafter, this necklace was given by Mr. Barnes to the appellant. The evidence is in sharp conflict as to the circumstances under which Mr. Barnes transferred this property to appellant.

Mr. Barnes testified that he gave appellant the necklace in payment for her future services in trying to negotiate a sale for him of the other merchandise taken during the burglary. Another witness, Chris Hobbs, testified that he witnessed Barnes and appellant discussing a box full of stolen merchandise and saw Barnes give the gold necklace to appellant.

Appellant testified that Barnes gave her the necklace as a birthday present because she was helpful to him while he was in the hospital. She stated that Barnes told her he won it in a poker game. One of appellant’s friends, Connie Fuller, confirmed the birthday present explanation, and denied (as did appellant) that there was any discussion about stolen merchandise.

The state produced three witnesses from the Montgomery County Sheriff’s Department; Sergeant Dan Jones, Captain W. J. Walker, and Deputy Sheriff David Bryan. In sum, they testified that during the investigation of an unrelated burglary, they had occasion to question appellant about the gold necklace she was wearing. She told them that Charlie Barnes had given her the necklace and denied knowledge that it was stolen. After further investigation, they discovered that it was stolen property, so they returned with a warrant and recovered the necklace from her.

Appellant called as witnesses Kenneth Hitson and D. E. Billingsley, detectives with the Montgomery Police Department. Their cumulative testimony was that due to information they had received from the El-more County Sheriff’s office, they had set up surveillance of appellant’s store and her adjoining house trailer. The surveillance lasted approximately four days and occurred between the time of the Wingo burglary and the time the county officers recovered the gold necklace. Officers Hitson and Billingsley concluded that during their surveillance they uncovered nothing to indicate that appellant was dealing in stolen merchandise or that she had received any stolen property knowing it to be stolen.

In rebuttal, the state produced evidence to the effect that appellant used some silver items, also stolen during the Wingo burglary, to purchase drugs from Robert (Bob) Thomas. This evidence was supported by the testimony of two witnesses, Bob Thomas and Teresa Loffa.

Appellant denied this.

The state also introduced evidence, without objection by appellant, that appellant, Carolyn Goodman, sold Chris Hobbs a television set and told him to be careful in taking it to a repair shop because it had been stolen.

Appellant also denied any participation in this transaction.

I

Appellant contends that the state failed to prove a prima facie case for “receiving stolen property” in that the prosecution did not establish that she had “knowledge” that the necklace was stolen property at the time she received it. We disagree.

The current Alabama statute § 13A — 8— 16, Code of Alabama 1975, defines the crime of receiving stolen property as follows:

“(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen. . .
“(b) If a person:
(2) Possesses goods or property which have been recently stolen . . . this shall be prima facie evidence that he has the requisite knowledge or belief.” (Emphasis added)

This statute clearly sets out the Alabama rule that possession of recently stolen goods raises a presumption that the defendant had the requisite “knowledge." Stanley v. State, 46 Ala.App. 542, 245 So.2d 827, cert. denied, 286 Ala. 738, 245 So.2d 828 (1970). Character v. State, 51 Ala.App. 589, 287 So.2d 916, cert. denied, 291 Ala. 775, 287 So.2d 919 (1973). Vines v. State, 57 Ala. App. 117, 326 So.2d 307 (1976); Hunt v. State, Ala.Cr.App., 331 So.2d 834 (1976); Bolding v. State, Ala.Cr.App., 342 So.2d 1372 (1977); Stamps v. State, Ala.Cr.App., 380 So.2d 406 (1980).

The often quoted rationale for this rule appears in Character v. State, supra, where this court stated:

“The requisite scienter for the crime of receiving stolen property may be inferred from the recent possession of stolen goods. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827.
“In Buckles [Buckles v. State, 291 Ala. 352, 280 So.2d 814 (1972).], supra, our Supreme Court cited with approval the following quotation from the case of Aron v. United States, 8 Cir., 382 F.2d 965, 970:
‘The doctrine that possession of recently stolen property gives a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession, is a factually sound and necessary evidentiary rule. Without this evidentiary rule in criminal cases, it would be almost impossible to consider for conviction any of the possessors or fences of stolen property unless they admitted that they knew the property to be stolen, which is an admission not likely to be forthcoming.’ ”

In the instant case appellant admitted that she had possession of the recently stolen gold necklace. The state’s prima fa-cie burden was, therefore, satisfied.

The appellant rebutted this presumption of “knowledge” on her part by her corroborated testimony that the stolen necklace was given to her as a birthday present under circumstances which did not lead her to believe it had been stolen.

Since the state produced evidence to the contrary, the question of knowledge became one for the jury. The jury was free to infer the requisite scienter from the facts and circumstances surrounding the whole transaction. Hunt v. State, supra; Carroll v. State, Ala.Cr.App., 338 So.2d 432 (1976); Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978); Franklin v. State, Ala.Cr.App., 378 So.2d 267, cert. denied, Ala., 378 So.2d 270 (1979).

The jury could determine that the requisite “knowledge” was satisfied under the “having reasonable grounds to believe it has been stolen” clause of the statute. Farzley v. State, 231 Ala. 60, 163 So. 394 (1935).

The Alabama Supreme Court in Farzley explained:

“While, as that court states, there is a difference between ‘knowing that it has been stolen,’ and ‘having reasonable grounds for believing that it has been stolen,’ it is now of the opinion that knowledge is necessary to a conviction, but that knowledge may be established by showing ‘reasonable grounds for believing.’ This is a statutory offense changing the common law. Its elements may be, and are defined by the statute, and, when so, are conclusive, so long as constitutional rights are not violated. The statute in our opinion is plainly expressed, and means that if ‘reasonable grounds for believing’ exist, that element is established, although defendant may have had no ‘knowledge,’ and that ‘reasonable grounds for believing’ are not inserted in the statute as a means of proving knowledge, but that it is a substitute for knowledge, in the alternative. Under the statute now, if the jury believes beyond a reasonable doubt the existence of facts which were known to defendant and which are sufficient in the opinion of the jury to show the existence of ‘reasonable grounds for believing’ that the goods were stolen, and they were in fact stolen, no further inquiry in that respect need be pursued.”

The jury was adequately instructed in the instant case and, apparently, was convinced by the whole of the evidence that appellant had at least “reasonable grounds for believing” that the necklace she received was stolen.

II

During the trial of this case the trial court allowed into evidence information regarding the disposition of other merchandise which was stolen at the same time as the gold necklace and testimony about a television set that appellant, allegedly, sold with a warning that it was “probably stolen” merchandise. Appellant raises these actions as error.

As to the latter testimony, there were no objections made during the trial of the case. Matters not objected to at trial cannot be considered for the first time on appeal since review by this court is limited to those matters on which rulings are invoked in the trial court. Harris v. State, Ala.Cr.App., 347 So.2d 1363, cert. denied, Ala., 347 So.2d 1368 (1977), and numerous cases cited therein; Pope v. State, Ala.Cr.App., 365 So.2d 369 (1957); Oates v. State, Ala.Cr.App., 375 So.2d 1285 (1979).

However, the appellant did raise timely objections to the introduction of evidence concerning several items of silver stolen during the same burglary in which the gold necklace was taken. The trial court overruled appellant’s objections and allowed evidence that appellant had used these stolen silver items to buy drugs. Appellant denied knowledge of these items or any transactions involving them.

Appellant is correct in his assertion of the general rule that evidence of other or collateral crimes (here the receipt of the stolen silver items) is not admissible as substantive evidence to establish the guilt of an accused of a particular crime. United States v. Turquitt, 557 F.2d 464 (5th Cir. 1977); Crow v. State, 28 Ala.App. 319, 183 So. 897 (1938); Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678, cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976); Scott v. State, Ala.Cr.App., 353 So.2d 36, cert. denied, Ala., 353 So.2d 40 (1977); Pope v. State, supra.

In United States v. Turquitt, supra, the U. S. Fifth Circuit stated the rationale for this rule as follows:

“This rule is necessary to prevent conviction based on a jury belief that the accused is a person of bad character. The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.”

However, there are numerous and well-established exceptions to the general rule. For a good discussion of these exceptions and examples of the variety of methods for classifying them see Crow v. State, supra; Johnson v. State, supra; Scott v. State, supra; Pope v. State, supra. For our purposes the most concise statement of the exceptions and a relevant application was stated by Judge Bowen in Pope v. State, 365 So.2d, at 371, as follows:

“Evidence of the accused’s commission of another crime is admissible to show guilty knowledge, criminal intent, and plan, design, scheme or system.
“Evidence of the accused’s commission of another crime is admissible if his knowledge of a certain fact (which usually means his reason to believe the existence of such fact in consequence of things seen by him or information received by him) is an element of the now-charged crime and his commission of such other crime was reasonably calculated to bring him such knowledge.” (Citations omitted.)

In the instant case “knowledge” by the appellant that the gold necklace was stolen (or some substitute for such “knowledge”) was a key element to the prosecution’s case. Therefore, it was proper to admit evidence that appellant received other items stolen at the same time as the necklace and that she knew these items were stolen.

Such evidence would also fit the “res gestae” exception to the inadmissibility of collateral crimes. This exception includes acts which were part of the whole or same occurrence or same transaction such that they could be considered relevant by the trial court as part of the “res gestae.” Johnson v. State, supra.

Consequently, this evidence was properly admitted by the trial court under either of these exceptions.

Ill

Appellant further contends that the trial court erred in dismissing her Motion to Produce. Specifically, appellant complains that the state did not produce accurate criminal records necessary for the impeachment of two witnesses, and did not provide for inspection of certain items of physical evidence prior to the trial.

These contentions are without merit.

During the trial, each of the witnesses in question, Charlie Barnes and Bob Thomas, freely admitted past criminal conduct sufficient for appellant’s impeachment purposes. The jury, apparently, chose to believe their testimonies in spite of their past records.

As to the items of silver placed in evidence during trial, there is nothing in the record to indicate that appellant was refused access to these items prior to trial, or that the absence of a pre-trial inspection in any way prejudiced appellant.

Moreover, the Motion to Produce filed by appellant in this case was of the “scatter-gun” variety properly rejected in Hurst v. State, 54 Ala.App. 254, 307 So.2d 62, cert. denied, 293 Ala. 548, 307 So.2d 73 (1974). Since the denial of such motions is within the discretion of the trial court and no harmful error resulted, we find no abuse of discretion by the trial court. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); Hurst v. State, supra; Perry v. State, Ala.Cr.App., 371 So.2d 969, cert. denied, Ala., 371 So.2d 971 (1979).

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

AFFIRMED.

All the Judges concur.


text:
    Ex parte Carolyn GOODMAN. (Re: Carolyn Goodman v. State of Alabama).
    80-602.
    Supreme Court of Alabama.
    July 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    David Lewis BROWN v. STATE.
    3 Div. 336.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Charles H. Sims, III, Selma, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Jones, Jr., Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Murder; sentence: fifty years’ imprisonment.

Appellant shot and killed his wife, Clara Ingram Brown, on January 18, 1980. The State presented evidence which would indicate that this was the tragic result of long-term marital discord between the husband and wife.

The shooting incident took place at the mobile home of the victim’s mother, Rosa Lee Ingram, where the appellant and his wife were currently residing. About midday the appellant had been served with a divorce complaint. A short time later the appellant visited the store where Clara was employed and threatened “I’ll get even with you for this.” Then the appellant went deer hunting for the remainder of the afternoon.

Around dark Clara arrived at the mobile home from work and shortly thereafter the appellant also returned from hunting. They immediately began quarreling. The appellant testified that he tried to get his wife to explain why she had told people that he had beaten her up the night before, but she refused to discuss the matter with him. Appellant discovered that she planned to attend church that evening with her mother. He walked into the bathroom where Clara was getting ready and insisted that she instead stay home with him. According to the appellant their fighting intensified, opprobrious words were exchanged, and the appellant became enraged from the victim’s curses. At some point the appellant walked outside, picked up the shotgun he had left leaning against the porch, and stormed back inside firing the gun as he came through the door.

Mrs. Ingram started screaming. Clara, who had been sitting in the front room with Mrs. Ingram and two small children, jumped up and ran toward the back of the mobile home. Mrs. Ingram ran after her daughter attempting to block the appellant’s passage. Appellant ordered Mrs. Ingram to get out of his way. When she did not comply, he shot and wounded her. Appellant stepped over her and proceeded to the rear of the mobile home where he found Clara in a bathtub. He grabbed his wife and dragged her down the hallway over her prostrate and bleeding mother and then shot and killed her.

Mrs. Ingram testified that Clara was begging the appellant not to kill her as he was dragging her down the hallway. Appellant insists that he and his wife were arguing and struggling over the gun. He testified that they were backing down the hall and she was trying to pull the barrel of the gun away from him. Appellant avowed that he bumped against a door and the gun accidentally went off.

After the shooting, appellant fled and hid at his parents’ home nearby. He asked his father the next morning to drive him to Hayneville where he turned himself in to Lowndes County authorities. Later in the day he made a confessory statement wherein he admitted killing his wife.

I

Appellant argues that the trial court committed reversible error in sustaining the district attorney’s objection to this portion of appellant’s opening statement to the jury:

“BY MR. SIMS: I also expect the Judge to charge you that criminally negligent homicide is also a defense—
“BY MR. BRYAN: Judge, we object. I believe it’s up to you to determine which are the lesser included offenses and which aren’t.
“BY THE COURT: Sustained.”

There was no error.

The purpose of an opening statement is merely to advise a jury of the issues involved in the case before them. Braswell v. State, Ala.Cr.App., 371 So.2d 992 (1979). It is a well-established rule that the scope and latitude of the opening statement are matters that rest within the sound discretion of the trial judge and his ruling should not be disturbed on appeal unless an abuse is shown. Winnings v. State, Ala.Cr.App., 370 So.2d 323, cert. denied, Ala., 370 So.2d 329 (1979). Obviously, no evidence had yet been presented to the jury; and since the appellant was charged with murder, it was premature to predict that the trial judge would later instruct the jury on a lesser included offense. Moreover, the contested fragment of appellant’s opening statement which appears in the record incorrectly calls “criminally negligent homicide” a “defense.” We therefore approve the prudent determination of the trial judge in this regard.

II

Appellant next contends that the trial judge committed reversible error during the oral charge to the jury when he inadvertently stated:

“If the killing is prompted by a sudden heat of passion, excited by lawful provocation, being immediately perpetrated on its occurrence, and is not the offspring of malice, the crime may be manslaughter, but not murder.” (Emphasis added.)

At the close of the oral charge, the trial judge queried:

“What do you say for the State?
“BY MR. BRYAN: State is satisfied.
“BY THE COURT: What do you say for the Defendant?
“BY MR. SIMS: Judge, the only thing, you mentioned malice as being a part of murder — I don’t believe that — that no longer applies, and I would object to that part.
“BY THE COURT: I don’t believe I mentioned malice, and if I did, it was a mistake. But, I don’t recall mentioning malice.”

On appeal, the appellant again complains that the insertion of “malice” in jury instructions defining murder and manslaughter was prejudicial error requiring reversal. We disagree.

The trial court has a mandatory duty to orally instruct the jury as to the different and distinguishing elements of the offense charged. Davidson v. State, Ala.Cr. App., 360 So.2d 728, cert. denied, Ala., 360 So.2d 731 (1978). In the instant case the distinction between murder and manslaughter is of importance because the confessing appellant pleaded not guilty to murder and claims the killing was “accidental.”

Absence of “malice” is no longer requisite in reducing murder to manslaughter under § 13A-6-3, Code of Ala.1975. Therefore, a hypothesis asserting that the killing must not be the “offspring of malice” in order for the crime to be reduced from murder to manslaughter has a misleading tendency. Nevertheless, we must place the trial court’s comment in its proper context.

If the contested part of the court’s' oral charge is considered standing alone, unaided by that which preceded and that which followed it, error might have occurred. However, when the phrase is considered in connection with the preceding and succeeding charge, it is apparent that any error was harmless. Hart v. State, 28 Ala.App. 545, 190 So. 95, cert. denied, 238 Ala. 199, 190 So. 98 (1939). We stated in Beckley v. State, Ala.Cr.App., 353 So.2d 542, 545 (1977):

“Portions of the oral charge excepted to must be construed in connection with the whole charge of the court. ... It is the responsibility of this court to evaluate the trial court’s oral charge to the jury as a whole and not by isolated sentences or segments.. . . ” (Citations omitted.)

We call attention to the fact that other portions of the court’s oral charge correctly defined and explained the distinguishing elements not only of murder but also the lesser included offenses of manslaughter and criminally negligent homicide. The court not only so instructed the jury once, but also repeated these instructions for the benefit and understanding of the jury. For these reasons we find that the criticized portion of the court’s oral charge was, at the most, harmless error. Rule 45, Alabama Rules of Appellate Procedure.

Ill

The trial court did not err in admitting a photograph of the bullet-riddled body of Clara Brown taken by the state toxicologist prior to embalming and autopsy. Over appellant’s objection the victim’s mother identified the person depicted in the photograph as Clara Brown. Once again appellant objected when the state toxicologist testified from the photograph that the person depicted was the one upon which he performed an autopsy.

The grounds for objection raised by appellant’s counsel were that (1) it was his “understanding” that the only physical evidence the State would introduce was a shotgun and four spent shells, and (2) the photograph would tend to prejudice the jury and had no probative value.

Although appellant never filed a motion to produce, the assistant district attorney had allowed appellant’s attorney to view the State’s files before trial. At the time defense counsel inspected the State’s files, the district attorney was not yet in possession of the autopsy report and photograph.

Whether or not the State should have shown the photograph to defense counsel prior to trial is not before us. As no motion to produce was filed, there is no ruling by the trial court on such a motion for this court to review. Heard v. State, Ala.Cr. App., 351 So.2d 686 (1977). Appellant could have filed a timely motion to produce requesting the district attorney to produce the photograph if it was in his possession. Strange v. State, 43 Ala.App. 599, 197 So.2d 437, cert. dismissed, 280 Ala. 718, 197 So.2d 447 (1966). Likewise, appellant could have sought a subpoena duces tecum to compel production of any photographs in the possession of the state toxicologist. Aycock v. State, 50 Ala.App. 130, 277 So.2d 404, cert. denied, 291 Ala. 49, 277 So.2d 412 (1973); Strange, supra.

There is yet another reason why no reversible error results. This is because there is no constitutional right to discovery in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); DeLoach v. State, Ala.Cr.App., 356 So.2d 222 (1977), cert. denied, Ala., 356 So.2d 230 (1978). Moreover, there is no indication that appellant was harmed from not viewing the photograph prior to trial. This is not a case of the State possessing and deliberately suppressing material and relevant evidence favorable to the appellant per Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Because the toxicologist did not personally know the deceased, the photograph was properly introduced to identify the body depicted as that of the alleged victim and as the body examined by the toxicologist. Gilmore v. State, Ala.Cr.App., 346 So.2d 1193 (1977); Burgess v. State, Ala.Cr.App., 339 So.2d 121 (1976).

Lastly, the photograph of the deceased certainly had probative value and was not rendered inadmissible because of its gruesome nature. Lewis v. State, Ala. Cr.App., 339 So.2d 1035, cert. denied, Ala., 339 So.2d 1038 (1976).

IV

Appellant insists that the trial court’s refusal to give the following charge constituted reversible error:

“[Charge No. 14]
“The court charges the jury that a humiliating or outrageous act such as adultery is sufficient to reduce the charge from murder to manslaughter.”

The above charge is an abstract statement of a purported legal principle not predicated upon the evidence in the case and was therefore properly refused. Hudson v. State, Ala.Cr.App., 335 So.2d 208, cert. denied, Ala., 335 So.2d 211 (1976). There was no evidence that appellant shot his wife upon suddenly finding her engaged in adultery. In fact, appellant testified the shooting was accidental. The charge was therefore not supported by evidence in the case. Thomas v. State, Ala.Cr.App., 358 So.2d 1076 (1978); Bullard v. State, Ala.Cr.App., 369 So.2d 877 (1979). In addition, the refused requested charge is an incomplete and incorrect statement of the law. The charge as written would have misled the jury to believe that any evidence of prior adultery without limitation as to time or circumstances would automatically reduce murder to manslaughter. Such a misstatement of the law renders the charge improper. Maund v. State, Ala.Cr.App., 361 So.2d 1144 (1978).

Appellant also asserts that the trial court reversibly erred by refusing to give requested Charge Nos. 2, 3, 4, 5, 7, 10 and 13. We disagree. The trial judge properly refused to give those charges. They were either covered by the trial court’s oral charge or were affirmative in nature. Code § 12-16-13; Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

Refused Charge 10 purports to inform the jury of the punishment for murder and Charge 13 set out the punishment for manslaughter. Neither of those requested charges contained matter proper for the determination of the jury. The trial court and not the jury determines punishment for the offenses charged. Code §§ 13A-5-1, -2.

As directed by Code § 12-22-240, we have searched the record on appeal and find no error prejudicial to the appellant.

AFFIRMED.

All the Judges concur.


text:
    Ex parte David BROWN. (re: David Lewis Brown v. State of Alabama).
    80-611.
    Supreme Court of Alabama.
    July 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Willie B. DAVIS v. STATE.
    5 Div. 530.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      J. Michael Williams, Sr., Opelika, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Willie B. Davis, was indicted by the Grand Jury of Lee County for robbery in the first degree. He entered a plea of not guilty, and was found guilty of robbery in the first degree as charged in the indictment. He was duly sentenced under Alabama Habitual Felony Statute to the penitentiary of the State of Alabama for a term of his natural life without parole.

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

The appellant contends in his brief that the trial court erred to his prejudice on three grounds: First, in allowing the identification of the appellant by witnesses who were influenced by prior impermissibly suggestive photographic identification procedures; second, by refusing appellant’s written, requested jury charges; third, by improperly interpretating the Habitual Felony Offenders Act, Section 13A-5-9, Code Of Alabama, 1975, and considering felony convictions prior to January 1, 1980, as a basis for sentencing the appellant.

Three state witnesses made in-court identification of the appellant without objection by appellant to the question until after the question was answered by the witness. The witnesses’ answers were responsive to the questions. When an answer to a question propounded by opposing counsel to a witness is responsive to the question, an objection should be made before the witness answers the question, and comes too late when no objection is made before the witness’ answer is made. We hold that the trial court did not err in allowing the witnesses to answer the questions propounded to them in the absence of an objection before the question was answered. Embrey v. State, 283 Ala. 110, 214 So.2d 567; Price v. State, 41 Ala.App. 239, 128 So.2d 109; Radford v. State, Ala.Cr.App. 348 So.2d 880.

We have carefully examined the record, and do not find any written jury charges marked refused by the trial judge in compliance with Code Of Alabama, 1975, Sec. 12-16-13. To become a part of the record so as to be considered by this Court a requested, written jury charge requires an endorsement by the trial judge as having been given or refused, and his name signed thereto. Therefore, nothing is presented to this Court with reference to the trial court refusing appellant’s requested, written jury charges. Code Of Alabama, 1975, Sec. 12-16-13; Berry v. State, 231 Ala. 437, 165 So. 97; Strickland v. State, 269 Ala. 573, 114 So.2d 407; Stoudemire v. State, Ala.Cr.App. 365 So.2d 376.

When the state rested its case against the appellant, the appellant offered no evidence in his behalf. The jury returned a verdict finding the appellant guilty of robbery in the first degree, which verdict is fully supported by state’s evidence. The state’s counsel requested the court to postpone the sentencing of appellant to a later date so the state could present evidence under the Habitual Felony Offenders Act, as last amended. At the hearing set up in compliance with the Habitual Felony Offenders Act before the trial judge, and held June 13, 1980, state’s evidence tended to prove that the appellant had been convicted of the following felonies: November 24, 1970 burglary, February 16, 1971 burglary, February 16, 1971 burglary, February 16, 1971 burglary, January 10,1974 grand larceny, January 10,1974 grand larceny, and January 17, 1975 robbery.

The Habitual Felony Offenders Act, as last amended, became effective on July 30, 1979, Code Of Alabama, 1975, Sec. 13A-5-9(c)(3). The crime for which the appellant was convicted occurred on the night of February 5, 1980. The indictment was returned in open court on April 22,1980. The trial of appellant was commenced on May 19, 1980, and the jury verdict was returned on May 20,1980 finding the appellant guilty of robbery first degree, and appellant was duly adjudged guilty in accordance with the jury verdict. At the hearing set up as provided by the Habitual Felony Offenders Act effective July 30,1979, on June 13,1980 the appellant objected to the trial court’s considering the seven foregoing felony convictions in determining the length of the sentence to be given the appellant because they all occurred before the Habitual Felony Offenders Act went into effect. This objection was overruled by the trial judge, and he considered the foregoing seven convictions of appellant that occurred before July 30, 1979, and sentenced the appellant for a term of his natural life, without parole. We quote from Code Of Alabama, 1975, Sec. 13A-5-9(c)(3).

“Sec. 13A-5-9. Habitual felony offenders — Additional Penalties.” _
“(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows:”
“(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole.”

Robbery in the first degree is a Class A Felony. Code Of Alabama, 1975, Sec. 13A— 8-41(c).

Before February 5, 1980, and at the time the robbery occurred in this case, the appellant had been previously convicted for seven felonies. The additional penalties provided by the Habitual Felony Offenders Act Of Alabama require the trial judge to consider prior felony convictions of a defendant in determining whether or not he is a habitual offender. The appellant’s contention that the trial judge’s consideration of appellant’s seven felony convictions that occurred before the effective date of the Habitual Felony Offenders Act, July 30,1979, was an improper interpretation of the act cannot be sustained.

We hold that the trial judge did not err to the prejudice of the appellant when he considered the prior felony convictions. Under the statute he was required to determine whether or not the appellant had been previously convicted of prior felonies, and how many. Smith v. State, Ala.Cr.App. 392 So.2d 1273; Williams v. State, Ala.Cr.App. 393 So.2d 492; Watson v. State, Ala.Cr.App. 392 So.2d 1274; Certiorari Denied, Ala. 392 So.2d 1280.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte Willie B. DAVIS. (Re: Willie B. Davis v. State of Alabama).
    80-617.
    Supreme Court of Alabama.
    July 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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