author: SIMMONS, Retired Circuit Judge.

text:
    Willie RICHARDSON v. STATE.
    1 Div. 50.
    Court of Criminal Appeals of Alabama.
    Aug. 21, 1979.
    Rehearing Denied Oct. 2, 1979.
    Thomas E. Harrison, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Samuel J. Clenney, III, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

The indictment charges that defendant “did unlawfully attempt to take and carry away a pair of men’s Photogray sunglasses of the approximate value of twenty-five dollars, the personal property of C. J. Gay-fer & Co., Inc., a corporation, against the peace and dignity of the State of Alabama.”

The trial was held before the court without the aid of a jury. Appellant was convicted and sentenced to sixty days in jail.

At the conclusion of the State’s evidence, defendant moved to exclude the evidence. Defendant also moved for a new trial “and such other and further relief as the court may deem necessary and proper under the circumstances.” Both motions were timely overruled.

The State called James Smith as a witness. Mr. Smith, a security guard at Gay-fers in Mobile, Alabama, testified that on May 6, 1978, he observed the defendant at approximately 12:30 p. m. in the men’s department of Gayfers, at which time and place he saw defendant, while in the company of another man, looking at some sunglasses on display in the men’s department; that he moved a pair and put them “not inside a bag, but folded a bag-doubled a bag over, and held the sunglasses inside that. And he went from there to the Women’s Department-the Younger Woman’s-the Fashions Department, Department 55.” There he purchased a dress for a young lady “he later identified to me as his daughter.” While there and talking to his daughter, he concealed the sunglasses “down the front of his pants and from there he proceeded up the escalator and during some time, some period between the time he left the Fashions Department and he got on the escalator, is in my belief that he recognized-” Objection sustained. The witness then testified:

“From there he got on the escalator and he went up through the Infant’s Department and while in that department he removed the sunglasses from his pants and put them under some bibs in the Infant’s Department and from there he went to the bathroom. When he came out of the bathroom we apprehended him.”

The witness said that in his judgment defendant had a charge account and did not pay any money for the dress. He made the purchase and completed the transaction.

It further appears from the evidence that Gayfers did not have a central check-out counter, but each department operated its own cash register; that each department took care of its own sales. It also appears from the evidence that it was about twenty-five yards from the men’s department to where he bought the dress, and where there was a cash register. Also the witness testified that it was ten to fifteen seconds from the time the defendant got off the escalator until he put the glasses under the bibs in the infant’s department.

Defendant took the stand and admitted being at the men’s department, and from there he went to the children’s department where he purchased a dress for his daughter. After making the purchase, he and his male companion took an escalator to the second floor and went to the restroom. He denied taking the sunglasses, denied that he ever had possession of them, and also denied that he left the men’s department with the item.

It has been held by this court that “larceny” is the felonious taking and carrying away of personal property of another with the intent on the part of the taker to convert it to his own use, or to deprive the owner thereof. McKinney v. State, 12 Ala.App. 155, 68 So. 518(4).

It appears to us that if the defendant was guilty of any offense, according to the State’s evidence, it was larceny and not an attempt to commit larceny as charged in the indictment. He either completed the act or never undertook an overt act as he testified.

We call attention to the recent case of Martin v. State, Ala.Cr.App., 371 So.2d 460, wherein it appears that appellant was convicted of larceny of certain grocery items which she concealed in a “purse” or diaper bag. We quote from the case as follows:

“The defendant contends that the State did not prove the element of asportation in the crime of larceny. In Jones v. State, 55 Ala.App. 274, 314 So.2d 876, cert. denied, 55 Ala.App. 277, 314 So.2d 879 (1975), it was held that in a prosecution for larceny based upon a charge of shoplifting, evidence that the defendant had been observed by a store security guard taking a sweater, rolling it up and placing it under her blouse and that, after her apprehension, she also disgorged a pair o'” trousers and claimed that she had founu them on the floor was sufficient to permit a finding of asportation even though the defendant never took the merchandise from the store premises.
“In Harris v. State, 57 Ala.App. 253, 327 So.2d 748 (1976), the defendant placed some phonograph records in a paper bag and left through an unattended cash register aisle without paying. Affirming the conviction this court wrote:
“ ‘In this case-because of the use of a check-out counter system-the completed act of asportation did not occur until the two thieves went past or evaded the place of payment, i. e., the designated cash register.1 Immediately after they passed that point they were halted with the goods in hand.’ Harris, 57 Ala.App. at 253, 327 So.2d at 748.
“The footnote in this quoted material cites Jones, supra.
“Jones makes it perfectly clear that, if a shopper moves merchandise from one place to another within a store with the intention to steal it, there has been aspor-tation and the shopper may be found guilty of larceny. However, taking goods openly from one place in a store to another does not constitute asportation.
“The Harris case is not authority for the proposition that, for there to be larceny from a store using a check-out counter system, the completed act of asportation cannot occur until the individual takes the goods past the place of payment. The statement in Harris which appears to support such a holding is mere obiter dictum and not necessary or essential to the court’s determination of the merits of that case. To the extent that Harris may or could be construed as supporting such a proposition it is hereby expressly overruled. The correct rule of asportation is stated in Jones, supra.
“In McKinnon v. State, 342 So.2d 24, 26 (Ala.Cr.App.), cert. denied, 342 So.2d 27 (Ala.1976), this court wrote:
“ ‘By concealing the albums underneath his coat and running from the building, the defendant acquired control over the property. In our judgment, the taking and asportation was completed when he concealed the items in his coat. See: Jones v. State, 55 Ala.App. 274, 314 So.2d 876.’
“This issue is due to be decided against the defendant on authority of Jones, supra.”

In the instant case, there was evidence of concealment of the sunglasses from the time the defendant picked them up at the display counter until he hid them under some bibs in the infant’s department.

We are impressed that defendant’s motion to exclude the evidence or the motion to vacate the verdict of the jury should have been granted.

Cochran v. State, 42 Ala.App. 144, 155 So.2d 530, cert. denied, 275 Ala. 693, 155 So.2d 533, held that the evidence of the State tended to show that defendant was guilty of robbery and could not be convicted of assault with intent to rob-a lesser offense embraced in the indictment for robbery. We quote from Cochran:

“The motion to set aside the judgment should have been granted because, as pointed out in the fifth ground of that motion, under the evidence the defendant was either guilty as charged or he was guilty of nothing.
* * sft sfc sfc *
“We are aware that a jury may believe part of the evidence of a witness and reject part. Southern Ry. Co. v. Gantt, 210 Ala. 383, 98 So. 192. However, all of the evidence of the prosecuting witness is to the effect that the defendant took seventy-five cents from her purse by force, etc. At no time does she testify that the defendant attempted to rob her but failed.
“As pointed out above, the essential elements of the crime of attempting to commit a robbery include the frustration of an overt attempt to rob. Therefore, the judgment of conviction is reversed, and a judgment is here rendered discharging the appellant from further custody in this proceeding.”

It appears from the evidence of the State that there was a completed act of theft and not a frustrated attempt to steal. The fact that defendant attempted to cover up the theft by hiding the item under a bib in the infant’s department did not relieve him of his guilt of larceny. As in Cochran, supra, there was no frustration of the actual theft so as to support an attempt to commit larceny as charged in the indictment.

Defendant denied taking possession of the sunglasses. Therefore, under the evidence he was guilty of larceny or nothing. The indictment for attempting to commit larceny was improvidently returned. The evidence supported a charge of larceny and not an attempt.

The court erred in denying the motion to exclude; also in denying the motion to vacate the verdict.

The judgment is reversed and the cause is rendered.

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

REVERSED AND RENDERED.

All the Judges concur.


source: Caselaw Access Project

author: TORBERT, Chief Justice. BEATTY, Justice

license: Public Domain

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Willie RICHARDSON v. STATE of Alabama).
    No. 79-59.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for petitioner.
    Thomas E. Harrison, Mobile, for respondent.
   TORBERT, Chief Justice.

The defendant respondent in this case was indicted for “unlawfully attempting to take and carry away a pair of men’s photo-gray sunglasses of the approximate value of $25, the personal property of C. J. Gayfer Co., Inc., a corporation, against the peace and dignity of the State of Alabama.” The defendant Willie Richardson was convicted and sentenced to 60 days in jail. The Court of Criminal Appeals reversed and rendered that case, holding that “if the defendant was guilty of any offense according to the State’s evidence, it was larceny and not an attempt to commit larceny as charged in the indictment. He either committed the act or never undertook an overt act as he testified.” The essential facts, which appear more fully in the opinion of the Court of Criminal Appeals, were presented by a security guard, James Smith, who is employed by Gayfer. He testified that he observed the defendant on May 6, 1978, looking at some sunglasses. The security guard further testified that the defendant picked up a pair of sunglasses, concealed them with a folded bag and asported them to a different department of the Gayfer store. The defendant, according to security guard Smith, hid the sunglasses in the infant’s department and then went to the men’s restroom and upon leaving the restroom he was apprehended by the security guards.

We granted certiorari in this case to resolve apparent conflicts among the decisions of the Court of Criminal Appeals in regard to the following issue: Where a defendant is indicted for the crime of attempt to commit larceny and the proof shows that either defendant is guilty of larceny or he is guilty of nothing at all, should a conviction for attempt to commit larceny be affirmed.

The opinions of the Court of Criminal Appeals and its predecessor, the Court of Appeals,, are in conflict on this issue. In the case of Broadhead v. State, 24 Ala.App. 576, 139 So. 115 (1932), the Court of Appeals of Alabama held:

[A] failure to consummate the crime is as much an element of an attempt to commit it as the intent and the performance of an overt act towards its commission; and, where a crime has been actually committed, the second element or ingredient of an attempt is necessarily lacking, and a prosecution or conviction for an attempt to commit a crime cannot be sustained for this reason.

Broadhead v. State, 24 Ala.App. at 578, 139 So. at 117. In Cochran v. State, 42 Ala.App. 144. 155 So.2d 530 (1963), the Court of Appeals of Alabama held, “[T]he essential elements of the crime of attempting to commit a robbery include the frustration of an overt attempt to rob.” 42 Ala.App. at 147, 155 So.2d at 532. In Cochran, the Court of Appeals held that evidence that defendant had actually perpetrated a robbery would not permit his conviction for assault with attempt to rob.

The opinion of the Court of Criminal Appeals in Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975), appears to be in conflict with the above opinions of the Court of Appeals. In Golston, the Court of Criminal Appeals wrote:

A robbery cannot be committed without some effort, some attempt to rob on the part of the robber; in any robbery there is an attempt to rob. The question here is whether the defendant could have been guilty under the evidence of merely an attempt to rob as distinguished from robbery? In White, the indictment charged an assault with intent to rob. It did not charge robbery. The court did not hold that he could have been legally convicted of an assault with intent to rob under an indictment charging robbery. That a grand jury may elect to charge the lesser of two crimes, one includible within the other, does not prevent a conviction even though the evidence shows that the greater crime has been committed. There is language in many of the authorities that an attempt to commit a crime is an ineffective or unsuccessful effort to commit the crime, but it is clear that under consideration at the time was whether the particular conduct amounted to a mere attempt as distinguished from an element of a completed offense.

Golston v. State, 57 Ala.App. at 627, 330 So.2d at 450. See also, White v. State, 24 Ala.App. 575, 139 So. 113 (1932); Mitchell v. State, 31 Ala.App. 470, 18 So.2d 696 (1944).

Under the traditional rule adopted by a majority of the courts, one cannot be convicted of attempted larceny where the evidence shows that the attempt was successful and the substantive offense of larceny was committed.

It is generally held that the essentials of the crime of attempting to steal are: (1) An intent to commit larceny. (2) The doing of some overt act or acts which would, in the usual and natural course of events, if unhindered by extraneous causes, result in the commission of a larceny. (3) A failure to consummate the larceny. This third element is as important as either of the others, for if the attempt is successful, the crime of larceny is complete, and there can be no conviction of the attempt to commit it.

52A C.J.S. Larceny § 67 (1968).

Under the decisions of those courts following the traditional rule, “A failure to consummate the larceny is as much an essential element of an attempt as the intent and the performance of an overt act toward its commission.” 50 Am.Jur.2d Larceny § 56 (1970). The modern trend among courts is to hold that a defendant may be convicted on a charge of attempt even if it is shown that the crime was completed. This modern view is based upon compelling reasoning. The legislature has enacted a statute giving juries the discretion to punish attempts as well as completed offenses for the purpose of deterrence. See, Code 1975, § 13-9-3. If a defendant can obtain a reversal of his conviction for attempt based upon the fact that his attempt was successful and amounted to the completed offense, then the policy of deterrence is not served.

Although the crime of attempt is sometimes defined as if failure were an essential element, the modern view is that a defendant may be convicted on a charge of attempt even if it is shown that the crime was completed. Taking into account the rationale of attempt, a person who attempts a crime should be amenable to the same punishment as a person who completed the crime, subject to the qualification that extreme sanctions intended only for general deterrence should not be permitted.

W. LaFave & A. Scott Criminal Law § 60 (1972).

In the case of State v. Heymann, 256 La. 18, 235 So.2d 78 (1970), the Louisiana Supreme Court held an attempted theft conviction may be sustained though the theft attempted was actually committed. See also, People v. Carr, 16 Ill.App.3d 76, 305 N.E.2d 554 (1973); State v. Burks, 29 Utah 2d 378, 510 P.2d 532 (1973); but see, People v. Thomas, 38 Mich.App. 777, 197 N.W.2d 97 (1972).

We hold that a defendant indicted and convicted for the crime of attempt to commit larceny is not entitled to a reversal of his conviction because the evidence at trial shows that his attempt was completed or amounted to perpetration of larceny. We recognize that our holding is a departure from the traditional rule; however, we do not believe that a rule contrary to reason, logic and public policy considerations should be followed solely because others have followed it. We do not believe the legislative policy behind the attempt statute, Code 1975, § 13-9-3, would be fostered by holding that a conviction for attempt must be reversed where the evidence shows the attempt was successfully completed.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON and EM-BRY, JJ., concur.

BEATTY, J., with whom FAULKNER and SHORES, JJ., concur, dissents.

BEATTY, Justice

(dissenting):

I respectfully dissent from the opinion of the majority. The rule is well-established in Alabama law that one cannot be convicted of an attempted crime when the evidence shows that the crime was in fact completed. Broadhead v. State, 24 Ala.App. 576, 139 So. 115 (1932). See Cochran v. State, 42 Ala.App. 144, 115 So.2d 530 (1963). In the present case all the evidence showed without dispute that the larceny was completed. In allowing the accused’s conviction of attempted larceny to stand, we repudiate the traditional rule, and do so ex post facto.

I am not opposed to the adoption of the modern trend prospectively. But the law in this case was clear and well established at the time the accused committed his act. He is entitled to be tried under the law as it existed at that time. Thus, I cannot agree that the law should be changed ex post facto.

FAULKNER and SHORES, JJ., concur.

      . In State v. Burks, the Supreme Court of Utah recognized that the old common law rule that the defendant could not be convicted of the crime of attempt if in fact the crime had been completed, has been superseded by U.C.A. 1953 § 76-1-30, which specifically provided that a person may be convicted of an attempt although it appears on the trial that the crime intended or attempted was in fact completed by such person.


author: PER CURIAM.

text:
    Willie RICHARDSON v. STATE.
    1 Div. 50.
    Alabama Court of Criminal Appeals.
    Oct. 7, 1980.
   PER CURIAM.

AFFIRMED ON MANDATE OF THE SUPREME COURT OF ALABAMA, 390 So.2d 4. NO OPINION.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Stanley G. SEAY, Jr. v. STATE.
    3 Civ. 72.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 1979.
    Rehearing Denied Oct. 30, 1979.

      Richard H. Sforzini, Jr., of Wood, Minor, Parnell & Sforzini, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: twenty years imprisonment.

On the morning of June 23,1978, Yolanda Bell Moore left home in her automobile en route to school. Following her in a separate automobile were her sisters and an infant niece. All of them were going to stop by the home of Rosebud Hall to leave the baby. As both automobiles pulled out of the driveway, the appellant jumped from behind some bushes beside the road and started firing a shotgun at Yolanda’s automobile. When Yolanda passed by, he then started shooting at the other automobile which swerved off the road and wrecked. The appellant immediately jumped into his automobile and gave chase to Yolanda.

Upon arriving at the Hall residence, Yolanda jumped from her automobile and went inside. Within seconds the appellant arrived at Mrs. Hall’s and started firing the shotgun at the house. The appellant yelled for Yolanda to come outside and proceeded to break into the house. As he broke into the house, Yolanda and Mrs. Hall escaped to a neighbor’s house. At this point in time the police arrived and arrested the appellant.

The evidence for the State was undisputed and sufficient for a conviction. However, we are compelled to reverse and remand the case for a new trial because of evidence illegally admitted during the State’s rebuttal portion of the trial.

I

At the outset we must answer the State’s contention that since there was never a ruling on the appellant’s motion for a new trial there is nothing for this court to review on appeal.

The appellant filed a timely motion for a new trial, but there was never a ruling by the trial court on the motion. The State submits that where there is no ruling on the motion for new trial the motion is not reviewable on appeal. We agree. A motion for new trial will be considered abandoned where the record reflects no ruling thereon. Bundrick v. State, 263 Ala. 245, 82 So.2d 309 (1955); Bass v. State, 219 Ala. 282, 122 So. 45 (1929). Rule 4(b), Alabama Rules of Appellate Procedure, amended June 8, 1978, states in part that: “When a motion ... for a new trial is abandoned, withdrawn, or discontinued, notice of appeal and all subsequent steps in the appellate procedure shall be treated as if such motion had not been filed.” (Emphasis added.) It is incumbent upon a party to see that his motions are ruled upon. Although we cannot review the motion for new trial, the law requires us to rule on other properly preserved errors of record. Section 12-22-240, Code of Ala.1975.

II

At arraignment on August 21, 1978, the appellant pled not guilty. On September 8, 1978, the appellant amended his not guilty plea by adding the special plea of not guilty by reason of insanity. Also on September 8, the appellant filed a motion to undergo psychiatric examination. The trial judge, on the same day, ordered a sanity investigation of appellant at Bryce Hospital in Tuscaloosa, Alabama, specifically citing §§ 15-16-20 and 15-16-21, Code of Ala.1975, as authority. Those sections set out the procedure for determining a defendant’s competency to stand trial. The order stated that the findings should be made in a report in writing to the trial court.

On January 5, 1979, the trial judge was notified in writing by the Forensic Evaluation Board at Bryce Hospital that the appellant was mentally competent to stand trial. On January 17,1979, the trial court ordered that criminal proceedings against the appellant be resumed.

As the State’s evidence against the appellant was sufficient to prove the offense, counsel for appellant concentrated their evidence exclusively on the defense of insanity. Several relatives of the appellant testified as to a long history of problems and strange behavior on the part of the appellant including two previous commitments to mental institutions and a medical discharge from the Marines. All of the relatives expressed their opinion that the appellant was insane.

Dr. Wallace Marshall, a psychiatrist, testified that the appellant suffered from schizophrenic paranoia and that he was definitely insane at the time of the offense and was presently insane at the time of trial. It should be noted that, beginning with the voir dire examination, the trial of this case was marked by repeated outbursts of obscenities, gestures, and irrational behavior on the part of the appellant.

At the conclusion of the evidence for the defense, the State attempted to introduce as rebuttal evidence the entire file of the appellant compiled while he was under the court ordered psychiatric testing at Bryce Hospital. The appellant objected on the grounds that such was hearsay and a denial of his federal and state constitutional right to cross-examine witnesses against him. The trial court did not admit the complete file, but did admit portions of the hospital records dealing with diagnosis. Those records admitted were:

(1) State’s Exhibit 37-a letter from the custodian of the records of Bryce Hospital certifying the medical records to be true and correct.

(2) State’s Exhibit 38-the findings of the Forensic Evaluation Board of Bryce Hospital that the appellant was mentally competent at the time of the acts charged and that he was mentally competent to stand trial, which in pertinent part states:

“(1) Stanley Seay was so far free from mental defect, disease or derangement at the time of the particular acts charged to distinguish right from wrong.
“(2) Stanley Seay was so far free from mental defect, disease or derangement at the time of the particular acts charged to adhere to the right.
“(3) Stanley Seay is presently competent to stand trial and to assist in the preparation of his own defense. Also, Mr. Seay does understand the nature of the charges against him.
“... Concerning his present charges and the court case pending, his behavior during these acts was not a product of psychosis or mental illness.”

(3) State’s Exhibit 39-a hospitalization summary of the appellant containing personal data and diagnosis. The top of the sheet was marked “Confidential & Privileged for Professional Use Only Not for Publication Not to be Used Against Patient’s Interests.”

On a plea of not guilty by reason of insanity, the burden is on the defendant to prove his insanity to the reasonable satisfaction of the jury by a preponderance of the evidence. Christian v. State, Ala., 351 So.2d 623 (1977); § 15-16-2, Code of Ala. 1975. In the instant case the defendant introduced substantial evidence of his insanity at the time of commission of the offense charged. The State introduced the above designated hospital records as rebuttal evidence. The State had an opportunity to cross-examine each of the appellant’s witnesses concerning the basis for their opinion as to his sanity. The appellant had no opportunity to cross-examine the members of the Forensic Evaluation Board who drafted State’s Exhibit 38.

The heart of the appellant’s defense was that he was insane at the time the offense was committed. The State attempted to rebut the appellant’s evidence to that effect by use of the written report, supra. Article 1, § 6, Constitution of Ala. 1901, and the Sixth Amendment to the United States Constitution guarantee to every defendant the right to be confronted by witnesses against him, and this imports the constitutional right to cross-examine those witnesses. Ball v. State, Ala.Cr.App., 337 So.2d 31 (1976), cert. quashed, Ala, 337 Ala. 39, and cases cited therein.

In Benton v. State, 31 Ala.App. 338, 18 So.2d 423, cert. denied, 245 Ala. 625, 18 So.2d 428 (1944), it was stated that the right of confrontation and cross-examination of witnesses “amounts to nothing if ex parte written statements are to be substituted for witnesses in the trial of a case involving life and liberty.” See also: Holmes v. State, Ala.Cr.App., 342 So.2d 28, cert. denied, Ala., 342 So.2d 36 (1977).

Sections 15-16-20 and 15-16-21, supra, are set up to provide the machinery for preliminary investigation into the competency of one to stand trial. It is only after a finding of present sanity that the State may proceed with the trial of the offense charged. Whether the appellant was not guilty by reason of insanity at the time of the alleged offense was a question for the trial jury to determine from the evidence. Included in the report of the Forensic Evaluation Board was the conclusion that the appellant was mentally competent to stand trial and that he was mentally competent at the time of the commission of the alleged offense. That Board was not directed to evaluate the appellant for mental competency at the time of the offense. Their statutory duty was to advise the judge whether the appellant was competent to stand trial.

The report of the Forensic Evaluation Board was not made under the sanction of an oath and was not intended for general public information. Cordle v. State, 53 Ala.App. 148, 298 So.2d 77, cert. denied, 292 Ala. 717, 298 So.2d 85, cert. denied, 419 U.S. 1033, 95 S.Ct. 516, 42 L.Ed.2d 309 (1974); Hutchens v. State, 45 Ala.App. 507, 232 So.2d 687, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970); Moody v. State, 41 Ala.App. 367, 132 So.2d 758 (1961); Benton, supra.

The State contends that its exhibit 38 was admissible pursuant to §§ 12-21-5 and 12-21-43, Code of Ala.1975. The first section provides a procedure for admission into evidence of certified copies of hospital records without the production of the original and without having the custodian of the records present as a witness to authenticate them. We have conclusively held that this section does not legitimize hearsay evidence in a document merely by having a custodian certify that the copy is the same as the original. Neither can an opinion expressed in a document be used by the State against a defendant on a material issue in a manner that denies the defendant the right to cross-examine the one expressing that opinion as to the basis for his conclusions. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365 (1975), cert. denied, 294 Ala. 763, 317 So.2d 372. The same reasoning applies to § 12-21-43, supra.

State’s Exhibit 38 contained expert opinion evidence bearing directly on the appellant’s sole issue on defense. Its admission in evidence deprived him of his constitutional right to confront and cross-examine those persons whose written evidence was used against him. The appellant must therefore be given a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte State of Alabama, ex rel. Attorney General. In re Stanley G. SEAY, Jr. v. STATE of Alabama.
    79-122.
    Supreme Court of Alabama.
    June 6, 1980.
    Rehearing Denied Aug. 8, 1980.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for petitioner.
    Richard H. Sforzini, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for respondent.
   FAULKNER, Justice.

This is a petition for writ of certiorari seeking review of the Court of Criminal Appeals’ reversal of Stanley G. Seay’s conviction of assault with intent to murder Yolanda Moore. We reverse.

The basic facts involved in this appeal are set forth in the opinion of the Court of Criminal Appeals in Seay v. State, 390 So.2d 7 (Ala.Cr.App.1979). Pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, the State as petitioner adds the following additional facts: Seay’s uncle, a lay witness, testified that Seay was insane in his opinion; and several of the State’s lay witnesses stated that they had known Seay for several years and that they had never seen him do anything bizarre or out of the ordinary in their presence.

We are asked to determine if the Court of Criminal Appeals erred in holding that the trial court should not have allowed the State to use portions of Seay’s psychiatric diagnostic records from Bryce Hospital as rebuttal evidence. The State asserts that the decision of the Court of Criminal Appeals in the present case is in direct conflict with its decision in Thompson v. State, 384 So.2d 1181 (Ala.Cr.App.1979), where the defendant’s psychiatric records were admitted under the business entries exception, Code 1975, § 12-21-43, without the in-court testimony of the examining physician. Seay, however, contends that the Court of Criminal Appeals was correct; that to allow admission of his psychiatric diagnostic records under § 12-21-43 would deprive him of his constitutional right to cross-examine witnesses against him, i. e., the Forensic Evaluation Board of Bryce Hospital, and that such records were hearsay.

It is generally stated that a hospital record of a patient, if it meets statutory requirements, is a record within the business record exception to the hearsay rule to the extent that the record covers hospital diagnosis. C. Gamble, McElroy’s Alabama Evidence § 254.01(7) (3rd ed. 1977). A business record, which takes the form of an opinion, however, will not be admissible unless the subject is a proper one for opinion testimony. Thus if a hospital record of a doctor’s diagnosis of a patient in the hospital has been made in conformity with the Business Records Act, then that record, even though the diagnosis is in opinion form, is admissible because if the physician were a witness, his testimony on the diagnosis would be admissible as an expert opinion. C. Gamble, supra at § 254.01(4).

Section 15-16-20, Code 1975, provides that if a prisoner under confinement appears to be insane the circuit court judge in the county where he is confined must instigate an investigation calling a physician and other witnesses to determine if the prisoner is insane. Pursuant to this code section and to § 15-16-21, Code 1975, the trial judge on motion of the defendant, ordered a sanity investigation of Seay at Bryce Hospital and also ordered the Forensic Evaluation Board’s findings to be reported in writing to him. At trial when the State attempted to introduce the Bryce Hospital records as rebuttal evidence over the objection of Seay’s attorney, the trial judge, basing his decision on § 254.01(7) of McElroy’s Alabama Evidence, allowed the admission of the final diagnosis portion of Seay’s Bryce Hospital records.

This Court has treated the admission of these state mental hospital reports and lunacy reports differently, depending on whether the hearing was one to determine an accused’s competency to stand trial or whether the evidence was introduced at the trial on the issue of the competency of the accused at the time of the commission of the offense. In Holmes v. State, 342 So.2d 28 (Ala.Cr.App.1976), cert. denied 342 So.2d 36 (Ala.1977) the State successfully had the defendant’s lunacy report from Searcy Hospital introduced into evidence at his competency hearing. The Court of Criminal Appeals found its admission to be harmless error with insufficient prejudicial effect to support reversal although it stated that the best course might have been to have excluded the report. The Court stated, purely as dicta, that the report certainly would have been inadmissible on the trial on the guilt or innocence of the defendant without citing any authority for this proposition.

Even at the actual trial stage, state mental hospital reports have been sometimes considered admissible and at other times have been treated as inadmissible. In Cordle v. State, 53 Ala.App. 148, 298 So.2d 77, cert. denied 292 Ala. 717, 298 So.2d 85, cert. denied 419 U.S. 1033, 95 S.Ct. 516, 42 L.Ed.2d 309 (1974), defendant was ordered by the trial court to submit to a psychiatric examination at Bryce Hospital. From that examination it was determined that he was sane. At trial, over the State’s objection, the appellant sought and obtained the introduction of certified copies of the defendant’s Bryce records. No attempt was made to depose the Bryce staff pursuant to Title 45, § 226, Code of Alabama 1940 (now Code 1975, § 22-50-22), and none of the Bryce physicians were present at the trial. The Court of Criminal Appeals stated:

The court could have legally refused to admit in evidence the reports of the doctors who made up the Lunacy Commission for the reason these reports were not made under the sanction of an oath and were not intended for general public information. Benton v. State, 245 Ala. 625, 18 So.2d 428; Benton v. State, 31 Ala.App. 338, 18 So.2d 423.

However, the Court did not hold this to be error, much less reversible error, and affirmed the conviction.

Over defense counsel’s objection, the State introduced the defendant’s entire Bryce Hospital file with the exception of one page in Hutchens v. State, 45 Ala.App. 507, 232 So.2d 687, cert. denied 285 Ala. 755, 232 So.2d 700 (1970). The Court of Criminal Appeals said, “The admission of this file as a self — proving piece of evidence, as a business record or as a memorial of a governmental act is unwarranted under deci-sional and statute law.” Yet it held that the admission of this exhibit was harmless error as none of the defendant’s testimony reflected on his sanity and since, on cross-examination of a different state’s witness, a psychiatrist, nothing was adduced that conflicted with his direct testimony that the defendant could distinguish right from wrong at the time of the crime.

The State in rebuttal of another doctor’s testimony used a doctor on the Bryce Hospital staff in Ward v. State, 44 Ala.App. 229, 206 So.2d 897 (1966), cert. denied 281 Ala. 650, 206 So.2d 922 (1967), to authenticate the defendant’s Bryce records, under the Business Records Act, § 415, Title 7, Code of Alabama 1940. The Court of Criminal Appeals held:

The Business Records Act (§ 415, supra) has come not to destroy but to fulfil. It is cumulative as to any other mode of proof. Thus, Dr. Patton could both give authentication of the hospital record and, having been qualified as a psychiatrist, give his opinion quite apart from the rest of the hospital records.

In Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946), the defendant had earlier been in Partlow State Hospital. He called the Superintendent of Partlow, who was asked for and authenticated his hospital records. This Court said that the doctor should have been permitted to testify as to these records and reversed the trial court.

Stinson v. State, 45 Ala.App. 5, 221 So.2d 397 (1968), did not deal directly with a state mental hospital lunacy report, but, in fact, concerned the admissibility of a report from the Lee County Mental Health Center. The Court of Criminal Appeals held it to be admissible under the Business Records Act where the expert witness by whom the State sought to introduce the records was the clinical psychologist who developed the report. The Court further stated, “[This report] is clearly distinguishable from the report of a multi-practitioner lunacy commission.”

On rehearing, the Court of Criminal Appeals in Benton v. State, 31 Ala.App. 338, 18 So.2d 423 (1944), affirmed the trial judge’s denial of admission of the defendant’s records from the state insane hospital. It discussed the denial of defendant’s right to confront witnesses against him and the time gap between the making of the hospital records and the murder for which he was convicted. On certiorari from the Court of Criminal Appeals, this Court affirmed, stating that the lunacy reports attempted to be introduced were not made under the sanction of an oath and were not intended for general public information. Benton v. State, 245 Ala. 625, 18 So.2d 428 (1944). This same rationale was followed in Ex parte Moody, 41 Ala.App. 367,132 So.2d 758 (1961), where petitioner wanted the Superintendent of Bryce Hospital ordered to produce his lunacy report in trial court. The Court held the records inadmissible as they were not made under oath.

Seay’s attorney places considerable emphasis on Lowery v. State, 55 Ala.App. 511, 317 So.2d 357 (1974) (opinion on remandment), cert. denied, 294 Ala. 763, 317 So.2d 372 (1975). In that case, cause of death was attempted to be established by submission into evidence of copies of University Hospital in Birmingham’s records authenticated by a doctor who was not treating the deceased while he was in Birmingham solely pursuant to Act No. 77, Acts of Ala., 1965, 2d Special Session, approved September 30, 1965 (Tit. 7, §§ 383(1)-383(3) Code of Alabama Recomp.). The Court of Criminal Appeals held that the copies of records were not admissible because the originals were not admissible without parol evidence of authenticity which the doctor who testified could not furnish.

Lowery may be distinguished from the present case. There, only what is now § 12-21-5 through -7, Code 1975, was used in the attempt to get the records into evidence. Those statutes allow the admission of certified copies of hospital records without parol testimony from the custodian only where the original records would be admissible. No attempt was made in that case, as it was in the present case, to avoid the hearsay problem by asserting that an original hospital record would fall within the exception which allows records made in the ordinary course of business. See C. Gamble, supra, at § 254.01(7). In addition, the Court of Criminal Appeals emphasized that cause of death was a material element in the State’s case while here the State was attempting to introduce the records as a portion of its rebuttal of defendant’s evidence that he was insane. Other testimony was adduced by the State of lay witnesses’ opinions that Seay was sane.

In response to Benton and Moody, we note that other types of medical and hospital records are not made under oath and are not for general public information yet they are quite frequently admitted in trial courts.

Having determined that the original Bryce Hospital records were admissible under the business entries exception or Business Records Act (§ 12-21-43, Code 1975) and certified copies thereof pursuant to §§ 12-21-5 through -7, Code 1975, we now address the confrontation of witnesses issue.

Section 22-50-22, Code 1975, provides that neither the superintendent nor any physician of a state mental hospital can be compelled to attend as a witness to present expert testimony in any case or on any question of insanity if he certifies in writing within 10 days after service of summons that his absence from the hospital will interfere with his professional duties and the welfare of his patients. Defendants, however, who wish the testimony of these doctors may take their depositions on all matters involving their expert opinion where such testimony is admissible. This statute has been held to furnish a constitutional alternative to compulsory attendance at trial. Pollard v. State, 358 So.2d 778 (Ala.Cr.App.), cert. denied 358 So.2d 782 (Ala.1978); Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), cert. quashed 292 Ala. 745, 293 So.2d 489 (1974).

Seay’s attorney asked the trial court to subpoena the members of the Forensic Evaluation Board and when their appearance was not forthcoming pursuant to § 22-50-22, he did nothing. He made no attempt to depose members of the Board or to get the trial judge to in some way provide a means whereby his indigent client could depose the Board. Having failed to avail himself of the deposition procedure, he cannot now claim a denial of right to confrontation.

REVERSED AND REMANDED.

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

BLOODWORTH, J., not sitting.


text:
    Stanley G. SEAY, Jr. v. STATE.
    3 Div. 72.
    Alabama Court of Criminal Appeals.
    Oct. 7, 1980.
   PER CURIAM.

AFFIRMED ON MANDATE OF THE SUPREME COURT OF ALABAMA. Ala., 390 So.2d 11. NO OPINION.

All the Judges concur.


author: TYSON, Judge.

text:
    Lula Mae McCURLEY, alias v. STATE.
    1 Div. 87.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      Richard D. Horne and Barry Hess, of Hess, Atchison & Stout, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Lula Mae McCurley was indicted by the September, 1977, session of the Mobile County grand jury for violation of the Alabama Uniform Controlled Substances Act, Title 22, § 258(25) through 258(60), Code of Alabama 1940, Recompiled 1958, 1973 Cum. Supp. (now §§ 20-2-1 through 93, Code of Alabama 1975). The indictment charged five counts of possessing illegal drugs: (1) codeine, (2) pentazocine, (3) chlorazepate, (4) diazepam, and (5) d-amphetamine sulfate. This case was tried by the court without the intervention of a jury. After hearing the evidence the trial court returned a judgment of guilty on counts 1, 2, 3, and 5; and granted the appellant’s motion to exclude as to count 4. The trial court sentenced the appellant to four years imprisonment in the penitentiary, ordered that twelve months of the sentence be served in the Mobile County Jail and suspended the remainder of the sentence pending good behavior. In addition he ordered that she be placed on probation at completion of the sentence. The appellant’s retained trial counsel represents her on this appeal.

Bobby W. Brown, an investigator for the Alabama Department of Public Safety’s narcotics unit, testified that during October, 1976, he worked in the Mobile area as a backup to contract agent (informant) Juanita Sorrells. On October 25, 1976, Brown and Sorrells went before Judge Thomas Sweeney to secure a search warrant for the Terrace Motel. Sorrells signed the search affidavit in support of the search warrant as the affiant.

According to Brown, Sorrells testified under oath before Judge Sweeney that 1) she had stayed at the Terrace Motel on different occasions, 2) she had been given and had purchased drugs from the appellant and Jimmy Eugene McCurley, 3) the appellant had stated that a shipment of morphine was expected at the motel on a certain date, and 4) she and the appellant talked about the appellant’s involvement in transporting drugs to prisons-how they were carried in, etc.

A search warrant was issued to Brown on October 25, 1976, but was never executed. No explanation was given. The next day, October 26, Brown went back to Judge Sweeney alone and obtained another search warrant for the Terrace Motel. This one was executed in this case. In support of the second search warrant Brown testified under oath before Judge Sweeney as to the facts related earlier by Sorrells. In addition Brown testified that he had the Terrace Motel under surveillance for the past sixty days. Brown signed the affidavit in support of the second search warrant.

At trial Brown testified that during the period of his surveillance of the Terrace Motel he saw different agents in his employ go in and meet with the appellant on different occasions. Brown saw what he assumed were drug transactions taking place in the driveway of the motel but could not see actual drugs being passed. He took photographs of the alleged drug transactions on different occasions.

Brown testified that Juanita Sorrells was in the Mobile area approximately three months. The last contact he had with her was latter 1977 or early 1978. He did not know her present whereabouts.

Marion Pugh, an investigator for the District Attorney’s Office, testified that on October 26, 1976, he executed a search warrant at the Terrace Motel, 4153 Government Boulevard, Mobile County, Alabama. Pugh served the warrant on the appellant and her husband, Edward McCurley, and made the return on the warrant to Judge Sweeney the next day.

Participating in the search were approximately six officers, including Pugh, Investigator Brown, and Dr. Small. The Terrace Motel consists of three groups of buildings-a residence, an office, and 15-20 rental rooms. It is all one area off Highway 90. Entry was made without force to the residence portion of the motel. Present in the residence portion at the time of the search were the appellant, Edward and Jimmy McCurley.

James L. Small, Toxicologist for the Department of Forensic Sciences, testified that he was custodian of the evidence during the search of the Terrace Motel. As officers located items of evidence, Dr. Small would take custody of each item and record where and who found it.

The defense counsel stipulated as to Dr. Small’s qualifications and waived the laying of predicate of chemical tests for identification. The following items were identified by Dr. Small and admitted into evidence.

1.) State’s Exhibit # 5: a clear vial with no prescription label containing white tablets identified as Acetaminophen and Codeine. This was found in a purse containing the appellant’s drivers license.
2.) State’s Exhibit # 6: a sealed container of 100 pink tablets identified as Pentazocine (Talwin). This was recovered from the same purse as Exhibit # 5.
3.) State’s Exhibit # 7: a vial containing two small pink tablets identified as Pen-tazocine (Talwin). This was recovered from the same purse as Exhibit # 5. This vial contained a prescription label for a Mrs. Davenport, later identified as the appellant’s sister.
4.) State’s Exhibit # 8: five white tablets identified as Codeine (Tylenol # 4). These were found in plain view on top of a dresser in one of the residence bedrooms.
5.) State’s Exhibit # 9: a vial containing seven maroon and gray capsules identified as Chlorazepate (Tranzene). The vial contained a partially torn prescription label in the appellant’s name indicating that the prescription was for Valium (Diazepam). This evidence was found behind the registration counter in the motel office.
6.) State’s Exhibit # 10: a vial containing one small pink tablet identified as Pentazocine (Talwin). The prescription label on the bottle was to James McCur-ley and indicated that the contents should have been Empirim # 3 (Codeine). This evidence was found beneath the mattress of one of the day beds in the motel office.
7.) State’s Exhibit # 12: a vial containing 24 brown and clear capsules identified as D-Amphetamine Sulfate. This was found in the hall closet of the residence. This bottle contained a prescription label in the appellant’s name.
8.) State’s Exhibit # 13: a brown vial containing 139 maroon and gray capsules identified as Chlorazepate (Tranzene). Dr. Small first testified that this evidence was found on a nightstand next to a bed in one of the residence bedrooms, but he later testified it was recovered from beneath the mattress of one of the day beds in the motel office.
9.) State’s Exhibit # 14: a bottle containing nine pink tablets identified as D-Amphetamine Sulfate and Butabarbital. The evidence was found beneath the mattress of one of the day beds in the motel office.

Dr. Small testified that the motel office has two entrances, one on each end. Inside the office is a lobby area and a counter for registering. Two day beds are located behind the counter area. The appellant was not present in the office when the evidence was recovered there. He did not know who worked in the office. He also did not know who occupied which bedroom in the residence.

Investigator Brown was recalled as a witness for the state. He testified that he recovered the purse containing State’s Exhibits # 5, 6, and 7 on the dining room table of the residence and that the appellant admitted it was her purse. He also stated that the hall closet in which State’s Exhibit # 12 (D-Amphetamine Sulfate) was found was opened with a key produced by the appellant.

Brown further testified that the motel office, the residence, and the rental rooms were separate buildings but it was all located on one piece of property. During his investigation of the appellant he ascertained that she lived in the residence portion and that she was the operator of the motel. She gave her occupation as motel operator of the Terrace Motel on some forms she filled out during the search.

Brown also testified that the residence contained three bedrooms. He did not know who occupied which room.

At this point the state rested its case. The defense counsel made a motion to exclude the evidence on several grounds. The trial court granted his motion as to count 4 only.

The first witness for the appellant was Bessie Davenport, sister of the appellant. Mrs. Davenport owned the Terrace Motel in 1976 and was there everyday in 1976. She never saw any drugs sold there. Mrs. Davenport named several people who had access and had keys to the motel office: the appellant, Jimmy McCurley, Betty Cornelison, Bobby Cornelison, a white maid named Jeanette Walker, a black maid, Ed McCur-ley, and herself.

Mrs. Davenport testified that State’s Exhibit # 7 [Pentazocine (Talwin)] was hers and that the appellant had been in possession of it with her permission. Mrs. Davenport was taking Talwin under prescription from a doctor. She left the drug at the appellant’s residence by mistake while visiting. Mrs. Davenport telephoned the appellant and asked her to put the Talwin in her purse and keep it until she could return to pick it up. She also testified that State’s Exhibit # 6 [Pentazocine (Talwin)] looked like her bottle of Talwin.

Betty Cornelison testified that the appellant is her mother. Mrs. Cornelison testified that the appellant, her father, brother Jimmy, son Bobby, and two maids live at the motel. The hall closet in the residence contains articles belonging to the appellant, her brother, and herself. Mrs. Cornelison possesses a key to the closet.

Mrs. Cornelison testified that she works at the motel. She stated that four or five people are behind the office counter on any given date. She testified that State’s Exhibit # 6 is a container of Talwin that she found in rental room # 8 a day or two before the search. Mrs. Cornelison turned the pills over to the appellant. She has found other pills in rental rooms in the past. The policy of the motel is to keep articles that are found in rental rooms for a period of time to see if someone would claim them.

Ronald Adams, ex-husband of Betty Cornelison, testified that he was at the motel frequently. He testified that the day beds in the office are used by all to rest when business is slow. He also testified that Bobby occupies the east bedroom.

The appellant then rested. There was no request for the affirmative charge and no motion for new trial.

I

Before the trial of this case the appellant filed a motion to suppress the evidence claiming that it was illegally seized. The motion was taken under submission during the trial and eventually overruled. The appellant contends on appeal that the trial court erred in overruling her motion to suppress because the affidavit in support of the search warrant did not meet the requirements of the second “prong” of the Aguilar test, i. e., that there were insufficient facts in the affidavit to establish the credibility of the informant.

The affidavit in question was executed by Investigator B. W. Brown of the Alabama Bureau of Investigation on October 26, 1976, before Judge Thomas Sweeney. The pertinent portion of the affidavit appears as follows (State’s Exhibit 3, R.P. 51):

“My name is B. W. Brown, I am an Investigator for the State of Alabama, Department of Public Safety, Bureau of Investigation, Narcotics Unit. I have received information from an informant who has proven reliable in the past. This informant has worked as an informant for the Georgia Bureau of Investigation, for approximately four months and has furnished them with information which has led to several narcotics arrests in the State of Georgia. This informant has been working in an undercover capacity for the Department of Public Safety for approximately three months. The informant has told your affiant that within the last thirty days the following events have taken place at the above described location:
“1. The informant has made several purchases of valium from Lula McCur-ley;
“2. The informant has been given val-ium by Jimmy Eugene McCurley;
“3. The informant was given several capsules within the last four days by Lula McCurley. These capsules were represented to the informant as something to help the informant sleep;
“4. On October 22, 1976, the informant was told by Lula McCurley that she (Lula McCurley) would be receiving a shipment of valium in the next few days;
“5. On October 24, 1976, Lula McCur-ley told the informant that she was sending Jimmy Eugene McCurley to pick up a shipment of liquid morphine that should be at the above described location on October 26, 1976.
“Your affiant has personally observed the above named subjects using the above described vehicles at the above described location within the last sixty days. Your affiant has surveilled the above location during the past sixty days and has observed numerous persons accompanying the above named subjects to numerous locations on the premises.
“Due to the above information we respectfully request the issuance of this search warrant.”

Aguilar, supra, sets out a two-pronged test that must be met in order that an affidavit based on hearsay information may be approved for the issuance of a search warrant: the magistrate must be informed of 1) the underlying circumstances from which the informant concluded that the items to be seized were where he claimed they were, and 2) the underlying circumstances from which the affiant concluded that the informant is a credible person or his information reliable. In addition, Spinnelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), requires that the underlying circumstances be in sufficient detail so as to inform the magistrate that the information he is relying on in the affidavit is “something more substantial than a casual rumor.” 393 U.S. 416, 89 S.Ct. 589.

In this particular case we are only concerned with the second “prong” of the Aguilar test. Our Supreme Court has approved the use of the assertion, “I have received information from a person whose record of reliability for correctness has been good,” as sufficient to support the second “prong” of Aguilar. Neugent v. State, Ala., 340 So.2d 52, cert. den. 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977); Davis v. State, 286 Ala. 117, 237 So.2d 640 (1970). The following assertion was used in the affidavit in this case, “I have received information from an informant who has proven reliable in the past.” This is essentially the same assertion approved in Neugent and Davis. In addition this affidavit goes on to reveal specific supporting circumstances for the reliability or credibility of the informant: 1) prior proven reliability of the informant for the Georgia Bureau of Investigation, 2) the informant has been working in an undercover capacity for the affiant’s agency during the prior three months, 3) the personal and recent observation of criminal activity by the informant including specific instances, and 4) the affi-ant’s personal surveillance of the location in question during the informant’s activities there. We conclude that the affidavit in the present case contained an ample factual basis for believing the informant was credible or reliable. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

In addition to and in support of the above, the day prior to the execution of the affidavit by Investigator Brown, the informant herself, Juanita Sorrells, swore to an affidavit before the very same Judge Sweeney. The pertinent portion of that affidavit is as follows (see testimony of Investigator Brown, R.pp. 42-58):

“Since the middle of September, 1976, I have made several purchases of Valium from Lula M. McCurley and have been given Valium by Jimmy Eugene McCur-ley at the Terrace Motel.
“On Friday, October 22, 1976, Lula M. McCurley gave me nine (9) red and gray capsules stating that it would' help me sleep.
“On Sunday, October 24, 1976, Jimmy Eugene McCurley stated that he had some Talwin that he would sell me.
“On Sunday night, October 24, 1976, Lula M. McCurley stated that she was going to send Jimmy Eugene McCurley to get some liquid morphine and talwin and should have it by Tuesday, October 26, 1976.
“All of the above situations happened at the Terrace Motel in September and October, 1976.
“The above automobiles have been used for transportation by Lula M. McCurley and Jimmy Eugene McCurley.
“I therefore request a search warrant to search the above described premises, described vehicles, and described trailer.”

Considering that the informant herself testified under oath before Judge Sweeney, the closeness in time between the two affidavits of the informant Sorrells and Investigator Brown, and the factual content of the affidavits, there can be no doubt that there was an ample indication of the credibility of the informant upon which Judge Sweeney could reasonably issue a search warrant

II

The appellant claims that the trial court committed reversible error by refusing to grant her motion to exclude the evidence as to counts 1, 2, 3, and 5 of the indictment. A motion to exclude must state proper specific grounds or it may be properly overruled. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960).

Count 1

Count 1 charged possession of codeine and was identified as State’s Exhibits No. 5 and No. 8. Exhibit No. 8 was found in plain view on top of a dresser in one of the bedrooms. There was no evidence as to who occupied this bedroom. The appellant claimed that the state did not prove her dominion and control over that bedroom. Knowledge of the presence of illegal drugs may be established by circumstantial evidence, and guilt does not depend upon ownership. Henderson v. State, Ala.Cr.App., 347 So.2d 540, cert. quashed, Ala., 347 So.2d 543 (1977). Evidence was offered at trial that the appellant had conducted drug transactions at the Terrace Motel, the appellant had substantial control over the motel, she was present during the search, and, as will be shown next, she was in actual possession of additional codeine. These are sufficient circumstances to provide a connection between the appellant and the illegal drugs. Temple v. State, Ala.Cr.App., 366 So.2d 740 (1978).

Exhibit No. 5 was the codeine found in the appellant’s purse. Investigator Brown testified that during the search the appellant stated “I have to get my purse,” she grabbed the purse and Brown took it away from her. The appellant contends that the appellant did not have specific knowledge that the drug in the vial was codeine or that it was illegal. We believe the appellant evidenced a consciousness of guilt by attempting to hold on to the purse and by actual possession of the purse, thus proving guilty knowledge. Temple, supra.

Count 2

Count 2 of the indictment charged possession of pentazocine and was identified as State’s Exhibits No. 6, 7, and 10. The appellant in her motion to exclude made the same arguments for this count as she did for count 1-no dominion and control, no specific knowledge. Exhibits No. 6 and 7 were found in the same purse as Exhibit No. 5. Exhibit No. 10 was found under the mattress of the day bed in the motel office. We cite our reasoning under the section on count 1 in support of our conclusion that count 2 was properly proven.

The appellant makes the contention on appeal that Exhibit No. 7 was a lawful prescription of the appellant’s sister, Mrs. Davenport. This point was not raised at trial by objection or motion to exclude. We believe Mrs. Davenport’s explanation at trial to be a valid explanation of the appellant’s possession of the drug. But, even if Exhibit No. 7 were excluded from evidence, there has been proper proof of possession of Exhibits No. 6 and 10, thus count 2 is still proven.

Count 3

Count 3 of the indictment charged possession of chlorazepate and was identified as State’s Exhibits No. 9 and 13. Exhibit No. 9 was found behind the registration counter in the motel office. The testimony by Dr. Small is contradictory as to where Exhibit No. 13 was found. At one point he stated it was found on a nightstand in one of the residence bedrooms. Later he stated it was found beneath the mattress of one of the day beds in the motel office. The appellant’s grounds for her motion to exclude on this count alleged failure to prove constructive possession and lack of proof of dominion and control. We again refer to our reasoning under the section of count 1 of this opinion for our conclusion on this issue. We might also add that the substance contained in Exhibit No. 9 was not the substance indicated on the bottle as being prescribed for the appellant.

Count 5

Count 5 of the indictment charged possession of d-amphetamine sulfate and was identified as State’s Exhibits No. 12 and 14. Exhibit No. 12 was found in the hall closet of the residence. Exhibit No. 14 was found beneath the mattress of one of the day beds in the motel office. The appellant in her motion to exclude alleged that the state failed to prove dominion and control on Exhibit No. 12 and that Exhibit No. 12 was a lawful prescription of the appellant. There is evidence in the record, though somewhat vague, that Exhibit No. 12 is a prescription for the appellant. Even if we give the appellant the benefit of the doubt and exclude Exhibit No. 12, the appellant’s argument still fails. There was no motion to exclude as to Exhibit No. 14, therefore the count still stands.

After a careful review of the evidence as to all counts, we are convinced that the state proved a prima facie case.

Ill

The appellant contends that the Alabama Uniform Controlled Substances Act is an unconstitutional delegation of legislative power and is violative of her due process rights. The constitutional question was raised at trial court by motion to quash the indictment.

The appellant specifically focuses on Title 22, § 258(26), Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp. (now § 20-2-20, Code of Alabama 1975). This section is set out as follows:

“(a) The state board of health unless otherwise specified shall administer this chapter and may add substances to or delete or reschedule all substances enumerated in the schedules in sections 258(29), 258(31), 258(33), 258(35), or 258(37) of this title pursuant to the procedures of the state board of health. In making a determination regarding a substance, the state board of health shall consider the following:
“(1) The actual or relative potential for abuse:
(2) The scientific evidence of its pharmacological effect, if known;
(3) The state of current scientific knowledge regarding the substance;
(4) The history and current pattern of abuse;
(5) The scope, duration, and significance of abuse;
(6) The risk to the public health;
(7) The potential of the substance to produce psychic or physiological dependence liability; and
(8) Whether the substance is an immediate precursor of a substance already controlled under this article.
“(b) After considering the factors enumerated in subsection (a) the state board of health shall make findings with respect thereto and issue a rule controlling the substance if it finds the substance has a potential for abuse.
“(c) If the state board of pharmacy designates a substance as an immediate precursor, substances which are precursors of the controlled precursor shall not be subject to control solely because they are precursors of the controlled precursor. “(d) If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the state board of health, the state board of health shall similarly control the substance under this chapter after the expiration of 30 days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that 30-day period, the state board of health objects to inclusion, rescheduling, or deletion. In that case, the state board of health shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the state board of health shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling, or deletion under this chapter by the state board of health, control under this chapter is stayed until the state board of health publishes its decision.
(e) Authority to control under this section does not extend to distilled spirits, wine, malt, beverages, or tobacco.
“(f) The state board of health shall exclude any nonnarcotic substance from a schedule if such substance may, under the Federal Food, Drug and Cosmetic Act, the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, and the law of this state be lawfully sold over the counter without a prescription. (1971, No. 1407, p. 2381, § 201, appvd. Sept. 16, 1971.)” (Emphasis supplied)

A

The question of whether § 258(26), supra, is an unconstitutional delegation of legislative authority to the State Board of Health was considered and ruled upon favorably by this Court in Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975), and followed in Napier v. State, Ala.Cr.App., 338 So.2d 463 (1976).

The case of State v. Lisk, 21 N.C.App. 474, 204 S.E.2d 868, cert. den., 285 N.C. 666, 207 S.E.2d 759 (1974), addressed the question of whether the authority of the North Carolina Commission of Health Services to add, delete, or reschedule a substance as a controlled substance was an unconstitutional delegation of legislative power:

“However, it is not necessary for the Legislature to ascertain the facts of, or to deal with, each case. Since legislation must often be adapted to complex conditions involving numerous details with which the Legislature cannot deal directly, the constitutional inhibition against delegating legislative authority does not deny to the Legislature the necessary flexibility of enabling it to lay down policies and establish standards, while leaving to designated governmental agencies and administrative boards the determination of facts to which the policy as declared by the Legislature shall apply.... Without this power, the Legislature would often be placed in the awkward situation of possessing a power over a given subject without being able to exercise it.
“Here we pause to note the distinction generally recognized between a delegation of the power to make a law, which necessarily includes a discretion as to what it shall be, and the conferring of authority or discretion as to its execution. The first may not be done, whereas the latter, if adequate guiding standards are laid down, is permissible under certain circumstances. 11 Am.Jur., Constitutional Law, Sec. 234. (Citation omitted)
* # * * * *
“Nevertheless, the legislative body must declare the policy of the law, fix legal principles which are to control in given cases, and provide adequate standards for the guidance of the administrative body or officer empowered to execute the law.... In short, while the Legislature may delegate the power to find facts or determine the existence or nonexistence of a factual situation or condition on which the operation of a law is made to depend, or another agency of the government is to come into existence, it cannot vest in a subordinate agency the power to apply or withhold the application of the law in its absolute or unguided discretion, 11 Am.Jur., Constitutional Law, Sec. 234.” (21 N.C.App. 477, 204 S.E.2d 870)

The Alabama Supreme Court in Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971), stated:

“This Court in the case of Porter Coal Co. v. Davis, 231 Ala. 359, 362, 165 So. 93, held that the legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the legislative halls.” (287 Ala. 23, 246 So.2d 909)

We conclude by paraphrasing a section from State v. Lisk, supra:

“It should be apparent that the [Alabama Legislature] is not constantly in session, and, therefore, even if its members were all trained chemists and pharmacists, which they are not, it is impossible for them to keep abreast of the constantly changing drugs and medications and their inherent dangers which appear on the pharmaceutical scene. [Title 22, § 258(26), supra] does not delegate the authority to define crimes; rather it is a delegation of authority to ‘find facts or determine the existence or nonexistence of a factual situation or condition on which the operation of a law is made to depend....’” (21 N.C.App. 477, 204 S.E.2d 870)

B

The appellant next contends that Title 22, § 258(26), supra, violates her state and federal right to due process of law. She specifically contends that the State Board of Health classifies drugs and narcotics as controlled substances without notice to the citizens of this state to provide input into the decisions. She also contends that the provision of automatic adoption of the federally controlled substances classifications by this state is violative of her due process rights.

The state has deemed it vital to the welfare of its people that the a “drug industry” be regulated so as to disrupt harmful practices. The State Legislature, in the exercise of its police power, has the right to reasonably regulate the administration of drugs for the protection of the lives, health, safety, and welfare of the people. “[T]he police power of the state is that power which is necessary for its preservation, and without which it cannot serve the purpose for which it was formed.... As to what means are appropriate or needful for this purpose, the Legislature primarily must determine, and its acts in this regard should not be overturned by the courts, unless in clear contravention of the Constitution . .. . ” State v. Campbell, 21 Ala.App. 303, 304, 107 So. 788, 789 (1926). See also: McClary v. State, 51 Ala.App. 30, 282 So.2d 379, rev. on other grounds, 291 Ala. 481, 282 So.2d 384 (1973); 28 C.J.S. Supp. Drugs and Narcotics § 7.

In Parke v. Bradley, 204 Ala. 455, 456, 86 So. 28, 29 (1920), we find the following:

“The prevention of disease and the conservation of health, by all of the means known to modern science, is universally recognized as one of the most important and imperious duties of government, and in the construction of statutes enacted for such a purpose, under the police powers of the state, courts are agreed that great latitude should be allowed to the Legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied.” (Citations omitted)

The Legislature has conferred upon the State Board of Health the authority to administer the control of drugs. There are specific guidelines set out in Title 22, § 258(26) to follow. The Board of Health consists of the Medical Association of Alabama. The State Committee of Public Health acts for the Board of Health when it is not in session. This is a specialized agency in the complicated field of drugs and narcotics, an area beyond the scope of the average person. The Committee of Public Health generally administers the law and holds public meetings monthly. The Board of Health annually revises and republishes the drug schedules in newspapers of general circulation in the state. See: Title 22, § 1, Code of Alabama 1940, Recomp. 1958; Title 22, §§ 2(4), 2(5), 3, and 258(38) Code of Alabama 1940, Recomp. 1958, 1973 Cum. Supp.

We do not believe that Title 22, § 258(26) violates the due process clause in the constitution.

“ ‘While the due process clauses of the state and federal Constitutions are designed to preserve life, liberty, and property against the encroachments of mere arbitrary power, they do not intend to interfere with the power of the state by legislative enactment, without more, to impose, subject to judicial approval, such reasonable regulations as may be deemed essential to the general good of the community.’ ” State v. Campbell, supra, 21 Ala.App. p. 304, 107 So. p. 789.

We find no due process violation with the provision in Title 22, 258(26)(d), concerning the adoption of federally controlled substances classifications. There is a waiting period of 30 days from publication of the final order in the Federal Register within which the Board of Health may object to the classification. In that case a hearing is provided for in which interested parties may be heard. In harmony with this we quote from 28 C.J.S. Supp. Drugs and Narcotics § 100.

“In a number of states, statutes have been enacted regulating and controlling narcotics and dangerous drugs. A majority of the jurisdictions have adopted the Uniform Controlled Substances Act which was approved in 1970 by the National Conference of Commissioners on uniform state laws. This Act was designed to supplant the Uniform Narcotic Drug Act and the Model State Drug Abuse Control Act, relating to depressant, stimulant, and hallucinogenic drugs, and was drafted to achieve uniformity between the laws of the several states and those of the federal government; it has been designed to complement the new federal narcotic and dangerous drug legislation and provide an interlocking trellis of federal and state law to enable government at all levels to control more effectively the drug abuse problem.” (Emphasis supplied.)

From the record it appears that the State Board of Health complied properly under its statutory duty in classifying the drugs for which the appellant was convicted as controlled substances (see authorities cited).

This case is hereby due to be affirmed.

AFFIRMED.

All the Judges concur.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

        Williford v. State, Ala.Cr.App., 365 So.2d 1257, cert. denied, Ala., 365 So.2d 1258 (1979).

      . Particularly pentazocine and chlorazepate.

      . Title 22, § 258(26)(d).


author: BEATTY, Justice.

text:
    Ex parte Lula Mae McCURLEY. (Re: Lula Mae McCurley, alias v. State of Alabama).
    79-485.
    Supreme Court of Alabama.
    Aug. 8, 1980.

      Richard D. Horne of Hess, Atchison & Stout, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   BEATTY, Justice.

Certiorari was granted to consider the constitutionality of the Alabama Uniform Controlled Substances Act, Code of 1975, §§ 20-2-1 et seq. Specifically, the petitioner contends that the Act must fall for either of two reasons: (1) It is an unconstitutional delegation of legislative authority, and (2) in its application to the petitioner it failed to accord with the notice requirements of due process of law.

The particular provisions questioned by the petitioner are contained in § 20-2-20:

(a) The state board of health, unless otherwise specified, shall administer this chapter and may add substances to or delete or reschedule all substances enumerated in the schedules in sections 20-2-23, 20-2-25, 20-2-27, 20-2-29 or 20-2-31 pursuant to the procedures of the state board of health. In making a determination regarding a substance, the state board of health shall consider the following:
(1) The actual or relative potential for abuse;
(2) The scientific evidence of its pharmacological effect, if known;
(3) The state of current scientific knowledge regarding the substance;
(4) The history and current pattern of abuse;
(5) The scope, duration and significance of abuse;
(6) The risk to the public health;
(7) The potential of the substance to produce psychic or physiological dependence liability; and
(8) Whether the substance is an immediate precursor of a substance already controlled under this chapter.
(b) After considering the factors enumerated in subsection (a) of this section, the state board of health shall make findings with respect thereto and issue a rule controlling the substance if it finds the substance has a potential for abuse. [Emphasis added.]
(d) If any substance is designated, rescheduled or deleted as a controlled substance under federal law and notice thereof is given to the state board of health, the state board of health shall similarly control the substance under this chapter after the expiration of 30 days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that 30-day period, the state board of health objects to inclusion, rescheduling or deletion. In that case, the state board of health shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the state board of health shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling or deletion under this chapter by the state board of health, control under this chapter is stayed until the state board of health publishes its decision.

We agree with the Court of Criminal Appeals in its assessment of the constitutional validity of §§ (a) and (b), finding that these statutory terms do not constitute an unconstitutional delegation of legislative power.

Article IV, Section 43 of the Alabama Constitution of 1901 provides:

In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.

Article IV, Section 44, of the Alabama Constitution of 1901 states that:

The legislative power of this state shall be vested in a legislature, which shall consist of a senate and a house of representatives.

The application of these provisions to other instrumentalities has been the subject of litigation in other cases. One of these was State v. Vaughan, 30 Ala.App. 201, 4 So.2d 5; cert. den. 241 Ala. 628, 4 So.2d 9 (1941), concerning a regulation promulgated by the Commissioner of Conservation under the authority of the legislation creating the State Conservation Department. That legislation had authorized the Commissioner to “make reasonable rules and regulations . . . for the best interest of the conservation, protection and propagation of . . . fish . .. which rules and regulations shall have the force and effect of law.. .. ” Under that statutory authority the Commissioner published the following rule:

The sale, offer or possession for sale of any game fish in the State of Alabama, regardless of where taken is hereby prohibited.

This Court held that this rule went beyond the power of the Commissioner and constituted an unlawful exercise of legislative power. In reaching that decision this Court recognized the absence of any “universal formula for determining in all cases the power which must be exercised by the legislative body itself, each case” being “controlled by the application of the general principle to a given situation.” Ibid, at 30 Ala.App. 204, 4 So.2d 5. It should be noted at this point that in Vaughan the Commissioner’s “rule” was his own unilateral prohibition. As will be shown, that circumstance is different from the situation here, for under this statute the legislature itself has asserted the complained-about proscription.

Whether or not a nondelegable legislative power to constitute criminal conduct has been granted to the State Board of Health by § 20-2-20 has not heretofore been considered by this Court, but the issue was before the Court of Criminal Appeals in Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975). It was contended in that case, as in this, that the defendant had been indicted for an offense promulgated by a Board of Health regulation (by having placed methaqualone on the controlled list) and not by a legislative act as required by Sections 42 and 43 of the Constitution. In upholding the Act under this attack that Court reviewed a number of decisions recognizing the doctrine of legislative delegation of power, and quoted from State v. McCarty, 5 Ala.App. 212, 59 So. 543 (1912):

The validity of such statutes, says the Supreme Court of Massachusetts, has been long recognized, and may be upheld upon one or both of two grounds: “They may be considered as being within the principle of local self-government as to such matters; the board of health being treated as properly representing the inhabitants in making regulations, which often are needed at short notice, and which could not well be made, in all kinds of cases, by the voters in town meeting assembled. Perhaps some of these statutes may also be justified constitutionally, on the ground that the work of the board of health is only a determination of details in the nature of administration which may be by a board appointed for that purpose; and that the substantive legislation is that part of the statute which prescribes a penalty for the disobedience of the rules which they make as agents performing executive and administrative duties.”

The McCarty case involved a legislative act creating a State Live Stock Sanitary Board which was authorized to make rules governing, inter alia, the disposition of livestock which might be quarantined. It required livestock owners to obey those rules pertaining to cleaning and disinfecting infected livestock and quarantined places. The Act continued by providing punishment to one for “failing or refusing, without just cause and legal excuse, to cleanse and disinfect any infested or infected place in which live stock are kept, when requested or directed by the . .. Board ....” In commenting upon the power of the legislature as manifested in that Act, the Court stated, at 5 Ala.App. 217-18, 59 So. 543:

[T]he state has, through unquestionable constitutional channels, provided a system dealing with the preservation of the health of live stock and their protection from contagious diseases .... Realizing that conditions would naturally and in all probability arise which could not then be foreseen, and that the administration of the law was one coming peculiarly within the province of scientific experts, the Legislature, out of necessity, wisely left to the members of the board the making of such rules as would promote the efficient administration of the law; and itself provided, in section 7083 [the punitive section], a spur for the observance of the law....

This paragraph was concluded with this pertinent sentence:

If the appellee is guilty in this case, and is punished under this affidavit, he will be punished by the will and by the command of the Legislature of Alabama, and not by the will or command of the Live Stock Sanitary Board, or any of its members, or of any other authority.

Commenting upon the delegation issue, the Court added:

While a legislative body cannot delegate its legislative power to make a law, it may delegate the power to an arm of the government to make and enforce regulations for the execution of a statute according to its terms.-[Citations omitted.]
“The true distinction,” said Judge Ran-ney for the Supreme Court of Ohio, in Cincinnati, Wilmington & Zanesville R. R. Co. v. Commissioners, 1 Ohio St. 77, 88, in a declaration which, according to San-born, Circuit Judge, in St. L. Mer. Bridge Ter. R. R. Co. v. U. S., supra, has been repeatedly upheld by the Supreme Court of the United States, “is between a delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done. To the latter no valid objection can be made.”

These principles are applicable in the case before us, and in their application we must be guided by the presumption of constitutionality accorded to legislative acts and our duty to sustain them unless we are convinced beyond reasonable doubt of their unconstitutionality. Riley v. Bradley, 252 Ala. 282, 41 So.2d 641 (1949); Taylor v. Hudson, 265 Ala. 541, 93 So.2d 143 (1957). Consonant with that duty, a statute which is susceptible to two interpretations, one of which would be constitutional, will be given the constitutional interpretation. Piggly-Wiggly of Jacksonville, Inc. v. City of Jacksonville, Ala., 336 So.2d 1078 (1976); Sanders v. State, 42 Ala.App. 67, 152 So.2d 439 (1963); Ala. State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944).

The petitioner maintains that § 20-2-20 unlawfully delegates to the Board of Health the legislative authority to establish a criminal offense because that section authorizes the Board to add, delete or reschedule substances, either through its own action or by adoption under federal law. We respectfully disagree with that interpretation. As this Court recognized in Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973), the Act is divided into five parts: Definitions; Standards and Schedules; Regulation of Manufacture, Distribution and Dispensing of Controlled Substances; Offenses and Penalties; and Enforcement and Administrative Provisions. With the exception of that part on definitions, all of these would fall under the general category of “administration” or execution of the Act. It is significant that a separate article (Article 4) pertains to offenses and penalties. In other words, following the placing of a substance in a controlled schedule, the legislature itself has stated that to possess, sell, furnish, give av/ay, obtain, etc., such conduct will constitute an offense. The Board determines that the substance should be controlled. Thus it performs its administrative function. But it is the legislative will, not the Board’s, which states that, following a controlled classification, certain conduct related to that controlled substance constitutes a public offense. The punishment under the Act does not ensue from the mere scheduling, but ensues from the affirmative legislative mandate declaring certain conduct related to that substance a crime. Thus there is no unlawful delegation of legislative power to the Board, even though the section of the Act on offenses may not come into play until the Board has made an administrative decision to schedule a substance. This interpretation of the Act is consistent with the power of the legislature to determine the criminal laws, Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 105 So.2d 214 (1925), and with our duty to adopt that interpretation which accords constitutionality to the legislative will, McAdory, supra.

We are not unmindful of the decisions of other jurisdictions to the contrary, i.e., Howell v. State, Miss., 300 So.2d 774 (1974); State v. Gallion, Utah, 572 P.2d 683 (1977); Sundberg v. State, 234 Ga. 482, 216 S.E.2d 332 (1975); State v. Rodriguez, La., 379 So.2d 1084 (1980), and State v. Johnson, S.D., 173 N.W.2d 894 (1970). But we must point out that some of those decisions either contained dissenting opinions concurring in the principles we have followed, are distinguishable on the wording of the pertinent statutes, or contain statutory interpretations different from our own. Additionally, there are cases from other jurisdictions in accord with our views, e.g., State v. Lisk, 21 N.C.App. 474, cert. den. 285 N.C. 666 (1974); see also 28 C.J.S.Supp. Drugs & Narcotics § 100 (1974). Therefore, we hold that § 20-2-20 does not contain an impermissible delegation of legislative power to the Board of Health.

The petitioner’s second attack concerns the process by which the substances in question were placed in the controlled classification.

The petitioner was found guilty of possessing (1) codeine, (2) pentazocine [Talwin], (3) chlorazepate, and (4) d-amphetamine sulphate. It appears that (1) and (4) were included in the then current Controlled Substances Inventory List of the U.S. Department of Justice under P.L. 91-513 as Schedule II drugs at the time the Alabama .Act was adopted. Chlorazepate was controlled under federal law. The State Board, on February 19, 1975, voted to have state control of chlorazepate coincide with federal control, which became effective on July 2,1975. Under § 20-2-20(d) the Board found no objection to the classification, hence at the end of 30 days from notice to the Board of that classification that substance became controlled. The petitioner contends that this control procedure violated the requirements of due process of law in two aspects: (1) it failed to follow the procedure outline in paragraph (a), and (2) it furnished inadequate notice to affected parties, was based upon an inadequate record, and was based upon no objective standard for weighing evidence before the Board.

A reading of the statute reveals that the classification procedures under (a) and (b) refer to different scheduling requirements. Paragraph (a) deals with the Board’s classification of a substance upon its own initiative. In performing that function the Board is required to consider eight specified aspects, and thereafter under paragraph (b) to “make findings ... and issue a rule controlling the substance if it finds the substance has a potential for abuse.”

Paragraph (d), however, entails an entirely different procedure, unrelated to the several aspects specified in paragraph (a). Under (d) the Board may rely upon a final control order published in the federal register, and 30 days from such publication may itself order control. Paragraph (d) allows for an objection to the control of such a substance and a public hearing following the Board’s published objections. In its salient features, paragraph (d) adopts the procedures utilized by the federal government in determining a control status, a procedure significantly similar to that accomplished under our own law. 21 U.S.C.A. §§ 802, 811, 812. We may take judicial knowledge of the fact that the Federal Register contains published accounts of preliminary and final control rulings of the Food and Drug Administration of the United States Department of Health, Education and Welfare, that these rules either call for or reflect public hearings, and that they include scientific findings on the qualities and propensities of drugs which are made the basis of recommendations from the Secretary of HEW to the Attorney General of the United States who has the statutory authority to add to or delete a drug from the federal schedule. McElroy, Alabama Evidence § 480.01(4); 21 U.S.C.A. § 811. In short, the federal decision to classify a drug as a controlled substance itself is subject to codified objective standards, and published findings and rules. As we stated, paragraph (d) simply enables the Alabama board to adopt those procedures rather than having to duplicate them. Under that paragraph, moreover, the Board was not required to make an express finding supporting its order. Cf. Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409 (1949). Under those circumstances we do not believe that a failure of due process has been shown. Railroad Commission v. A. G. S. R. Co., 185 Ala. 354, 64 So. 13 (1913).

The drug pentazocine [Talwin] was controlled by action of the Board itself on August 15, 1973, as the following minutes of the Board of Health establish:

Dr. Hamrick informed the Board that it had been brought to his attention by the State Board of Medical Examiners that the State Health Department had received its first death certificate for Tal-win intoxication which had been documented by an autopsy and it was suggested that Talwin be placed in Schedule III Non-Narcotic. During discussion it was suggested Valium, Librum and some other items be included also. Several questions were raised about these being included and request was made that these last items be deleted from consideration at this time. Dr. Hamrick moved that the SCPH recommend that Talwin be placed in Schedule III Non-Narcotic; Dr. Stranded seconded the motion, which was carried unanimously.

These minutes, it was conceded by the State Health Officer, constituted the “best” and “legal” record of that meeting.

It is clear from these minutes that the procedures outlined by the legislature in § 20-2-20(a) and (b) were not followed by the Board when it classified Talwin as a controlled substance. The statutory language of subsection (a) is peremptory: “ ... the state board of health shall consider ....” The language of subsection (b) likewise is directory: “After considering the factors enumerated in subsection (a) of this section, the state board of health shall make findings with respect thereto ....” Obviously the legislature considered it necessary for the Board to do more than issue a ruling, for it specified the considerations to be entertained and then directed findings to be made “with respect thereto,” that is, with respect to those considerations. Accordingly, we disagree with the Court of Criminal Appeals in its finding that the State Board of Health complied with its statutory duty in classifying the drugs for which the appellant was found guilty. The classification of pentazocine, having been legally deficient, could not constitute the basis for the charge under count two of the indictment, and thus the petitioner could not have been found guilty under that count. Having reached this conclusion, it is unnecessary to consider the other objections to the Board’s classification of Talwin. Therefore, petitioner’s conviction under count two is reversed and this cause is remanded to the Court of Criminal Appeals for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

BLOODWORTH and FAULKNER, JJ., not sitting.

      . The facts of this case are found in McCurley v. State, Ala.Crim.App., 390 So.2d 15 [1980].

      . Now known as Department of Health and Human Services.


text:
    Lula Mae McCURLEY, alias v. STATE.
    1 Div. 87.
    Alabama Court of Criminal Appeals.
    Oct. 7, 1980.
   TYSON, Judge.

On August 8,1980, the Supreme Court of Alabama affirmed this Court’s earlier decision in Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975), that the provisions of § 20-2-20, (a) and (b), Code of Alabama 1975, do not offend the provisions of Article IV, Sections 42 and 43 of the Constitution of Alabama 1901. McCurley v. State, Ala., 79-485, 390 So.2d 25.

This cause proceeded to trial under a five-count indictment, and at trial the appellant’s motion to exclude as to Count Four (Diazepam) was granted, and the appellant found guilty as charged under the remaining four counts. The Supreme Court in McCurley, supra, reversed the conviction under Count Two, pentazocine (talwain), but affirmed as to the remaining counts and remanded this cause to this Court for further proceedings.

As to the remaining counts: One, codeine; Three, chlorazepate; and Five, d-amphetamine sulfate, the Circuit Court of Mobile County is hereby affirmed. As to Count Two, Pentazocine (talwain), the judgment is reversed and remanded on the authority of McCurley, supra, and the cause is hereby remanded to the Circuit Court of Mobile County for proper sentence.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART, AND REMANDED FOR PROPER SENTENCE.

All the Judges concur.