text:
    Dwight W. BINGHAM v. CITY OF TUSCALOOSA, a Municipal Corporation.
    79-316.
    Supreme Court of Alabama.
    May 9, 1980.

      Michael D. Smith of Hall, Clark & Smith, Eutaw, for appellant.
    J. Wagner Finnell, Asst. City Atty. and H. Burton Flanagan, Tuscaloosa, for appel-lee.
   JONES, Justice.

This appeal challenges the constitutionality of Tuscaloosa Ordinance No. 1773 which requires a permit to engage in commercial enterprise or to erect a structure at Lake Tuscaloosa, The City owns the lake and lands immediately adjoining the shoreline. Appellant Bingham leases a parcel of shoreline property from the City on which he currently operates a grocery store. The primary function of the lake is to provide the domestic and industrial water supply to the City and to its inhabitants. Recreational usage such as boating, fishing, and swimming is also permitted. The Ordinance by its terms operates prospectively only.

Bingham’s application for a permit to build a boat dock, launch area, and gasoline pumping station to service boats operating on the lake was denied after a public hearing. The gist of Bingham’s argument is that he is denied equal protection of the law because the City forbids him from doing the very thing others are doing under the grandfather feature of the Ordinance.

The City, on the other hand, says the Ordinance and its denial of Bingham’s application thereunder is lawful (i. e., not unconstitutional) because it has the right to regulate the use of its own property, and that the City has a right and obligation to protect the health and safety of its citizens by limiting the number of gasoline pumping stations (and thus limiting the boat traffic) on the lake.

Bingham’s argument is a persuasive one:

“Our argument in the instant case is based on the classification created by Subsection (f) of the Ordinance which reads: ‘This ordinance shall not apply to commercial structures constructed under permit from the City and in operation prior to the 18th day of April, 1974.’ While we recognize that there is no constitutional proscription against State treatment of classes of persons in different ways, the different treatment must be rational in order to avoid proscription under the Federal Constitution. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). The Ordinance was enacted, by the City’s own admission, to protect the health and safety of the citizens of the City of Tuscaloosa. The Ordinance operated only prospectively. It would appear to be totally irrational to allow an ordinance which is based upon health and safety to operate only prospectively leaving existing hazards unaffected. A case directly on point is Standard Oil Company v. City of Gadsden, et al., 263 F.Supp. 502 (1967). In that case Judge Grooms stated at page 507:
“ ‘An ordinance attempted to be justified as a safety regulation which operates only prospectively leaving existing hazards unaffected, creates an arbitrary classification and cannot be allowed to stand.’
“Quoted in the above case is Standard Oil Company of New Jersey v. City of Charlottesville, 42 F.2d 88 (4th Cir. 1930). In that case the Court stated that:
“ ‘A classification manifestly has no such reasonable relation where it forbids one person to carry on the same business on the grounds that it is dangerous to the community, and allows another person similarly situated to carry on the same business simply because he happens to be engaged in it at the time of the passage of the ordinance. ... So far as the public safety is concerned, it can make no possible difference that the business was being carried on at the time of the passage of the ordinance.’
“It would seem that this case is directly on point and should bear considerable weight on the Court’s decision in the present case. The Alabama Supreme Court appears to be in agreement as evidenced by Swann v. City of Graysville, et al., 367 So.2d 952 (Ala.1979). In that case, the Court reviewed an ordinance which prohibited issuance of new licenses to sell alcoholic beverages within five hundred feet of any church, school, schoolground, public park or public playground, but allowed businesses already in existence and within five hundred feet of such places to renew or obtain reissuances of their licenses to sell alcoholic beverages. The Court struck down the ordinance stating that it infringed upon the applicant’s right to equal protection of the law. The Court there stated that although the ordinance was a proper exercise of the City’s power that power could not be exercised in an arbitrary or discriminatory manner.”

The fallacy of this argument becomes apparent, however, when taken to its logical conclusion. According to its implicit premise, only two courses of action are open to the City: Either

1) Eliminate the “grandfather” clause from the Ordinance; or
2) Decline any regulatory action.

Surely, no citation of authority is necessary to demonstrate the constitutional invalidity, on general due process grounds, of any regulatory scheme enacted by the City that fails to recognize vested rights of prior interest holders. Thus, a “grandfather” clause is essential to the constitutional validity of the Ordinance here challenged. Nor do we believe it can be seriously contended that the City is totally without authority to regulate the nature and extent of marine activity' on its public lake.

The question, then, is whether the legislatively imposed conditions and restrictions are rationally related to the purpose of the Ordinance. We think they are. While clearly there is a point beyond which the quality and quantity of marine traffic on the lake will exceed health and safety standards, it is an erroneous assumption that the “grandfather” clause leaves “existing hazards unaffected.” Consequently, the City is legally vested with authority to establish and maintain safety and health standards with respect both to the .public recreational use of the lake and to the primary use of its water for domestic consumption. This authority includes, of course, regulation of the commercial activities of those operators “grandfathered” in.

We hasten to add that our holding is not to be construed as agreeing with the City’s primary contention that' its Ordinance is beyond equal protection scrutiny because of its ownership of the property involved. We hold simply that the Ordinance on its face does not create an arbitrary, prospective classification; that the record before us does not disclose an arbitrary or discriminatory application of the challenged Ordinance; nor was Appellant denied due process of law.

AFFIRMED.

All the Justices concur, except BLOOD-WORTH, J., not sitting.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    ALBERTVILLE NURSING HOME v. James UPTON.
    Civ. 2049.
    Court of Civil Appeals of Alabama.
    May 14, 1980.

      Howard B. Warren of Torbert, Turnbach & Warren, P. A., Gadsden, for appellant.
    James D. Walker, Albertville, for appel-lee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. The trial court awarded compensation and the employer appeals.

the testimony reveals that the claimant Upton was employed in maintenance by the defendant Albertville Nursing Home; that in the course of that employment Upton worked with various cleaning solutions; that he developed a severe skin condition on his hands and feet; and that the condition had rendered him unable to work.

The trial court found the claimant Upton to be entitled to temporary total disability benefits and awarded him accrued benefits of $4,027.62, weekly benefits for twenty-six weeks and medical expenses.

The appellant raises three issues in brief. The first is whether there is any evidence in the record supporting the trial court’s conclusion that Upton’s condition arose out of an “accident” suffered in the course of his employment. § 25-5-51, Code of Alabama (1975).

After much difficulty with the term “injury . . . caused by an accident arising out of and in the course of his employment,” the courts of this state have come to the conclusion that if the job caused the injury it was “by accident” within the intent of the Workmen’s Compensation Act. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975).

The proper test to determine whether a claimant’s job caused his injury is set out in the case of Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1977). That test is:

If in the performance of his job he has to exert or strain himself or is exposed to conditions of risk or hazard and he would not have strained or exerted himself or been exposed to such conditions had he not been performing his job and the exertion or strain or the exposure to the conditions was, in fact, a contributing cause to his injury or death, the test whether the job caused the injury or death is satisfied. 354 So.2d at 1140.

The evidence supports a finding that Upton was in regular daily contact with caustic cleaning solutions on the job which he would not have been exposed to otherwise. There is evidence that his skin condition was caused by or contributed to by the substances he used on the job. Thus the test of legal and medical causation are satisfied. City of Tuscaloosa v. Howard, supra.

Appellant contends that the trial court erred in admitting the testimony of Dr. Haden, because he is not an expert in the field of dermatology. The qualification of an expert witness is a question largely within the discretion of the trial court. Independent Life and Accident Insurance Co. v. Aaron, 282 Ala. 685, 213 So.2d 847 (1968). While it is true that one expert may have more expertise on a specific issue than another, this presents a question of the weight to be given his testimony, not its admissibility. Clearly Dr. Haden had acquired knowledge beyond that of an ordinary person on the subject at issue and therefore qualified as an expert witness. Independent Life and Accident Insurance Co. v. Aaron, supra. He said he saw and treated patients with skin diseases every day. Where evidence, expert testimony or otherwise, is in conflict, the weight to be given that evidence is a question for the trial court. This court will not look to the weight of the evidence but only to see if there is legal evidence to support the findings of the trial court. Federal Mogul Corporation v. Taylor, 345 So.2d 1366 (Ala.Civ.App.1977). The trial court’s finding that Upton’s job caused his condition is supported by legal evidencé.

Appellant’s final issue is whether there is any evidence in the record to support the trial court’s finding that Upton should recover temporary total disability benefits for twenty-six weeks after the date of judgment. Appellant argues that neither of the expert witnesses assigned twenty-six weeks as the duration of Upton’s total disability; and therefore, there is no basis in the evidence for such a finding.

In a case involving, temporary total disability where the claimant is totally disabled at the time of trial, it becomes the duty of the court to make some estimate from the evidence as to its probable duration and fix the compensation to be payable until such estimated time, not exceeding the maximum. Ford v. Crystal Laundry Co., 238 Ala. 187, 189 So. 730 (1939).

In making that determination, the trial court is not bound by expert medical testimony. The court must consider all of the evidence, including its own observation, and interpret it to its own best judgment. Ford v. Crystal Laundry Co., supra. When so considered, we cannot say that there is no basis for the trial court’s finding.

The trial court’s award is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN, Judge. BOOKOUT, Judge, BOWEN, Judge.

text:
    Ronald WILLIAMS v. STATE.
    3 Div. 772.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Julian L. McPhillips, Jr. and T. Thomas Gallion, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and John A. Yung, IV, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The defendant was indicted jointly with Alabama State Representative* Thomas J. Reed by the Montgomery County Grand Jury for the offense of bribery of a state legislator as provided for in Title 14, Section 73, Code of Alabama 1940, now Ala. Code Section 13-5-31 (1975). The indict-. ment returned against this defendant is identical to the one set forth in Reed v. State, Ala.Cr.App., 372 So.2d 872 (1978). Representative Reed was convicted of an attempt to commit the charged offense and fined $500.00. This defendant was found “guilty as charged” and the trial court sentenced him to two years’ imprisonment. Both at trial and on appeal the defendant is represented by retained counsel.

. Both at trial and on appeal, the defendant attacks the legal sufficiency of the evidence to support his conviction. The evidence is conflicting and subject to contradictory inferences. In stating the facts this Court will only give a general outline of the evidence and will not attempt to summarize all the testimony presented during the three day trial of the defendant.

In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. Ellis v. State, 338 So.2d 428 (Ala.Cr.App.1976); Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974). The evidence must be considered in the light most favorable to the prosecution. Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531 (1975).

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976). A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969); Morton v. State, 338 So.2d 423 (Ala.Cr.App.1976).

Around the first of May, 1975, Representative Thomas Reed introduced House Bill 247 into the Regular Session of the Alabama State Legislature. This bill would have provided for and created a county racing commission for the regulation, licensing and supervision of dog racing and wagering thereon in Macon County. Reed represented Macon County in the State House of Representatives.

Senator Thornton Dudley Perry was a State senator and his senatorial district included Macon County. Due to the recognized practice of “legislative courtesy”, Senator Perry’s approval of the bill was necessary for its adoption by the Senate.

Within the first few days of the session Representative Reed came across to the Senate Chamber in the Capitol in Montgomery and handed Senator Perry a copy of House Bill 247. Senator Perry testified that on that occasion Representative Reed stated:

“Here’s the dog racing bill . .• . There’s a provision in it for an attorney for the track and there’s no limit on the salary. We’ve got you taken care of- I’ll talk to you about it later.”

An amended version of the original House Bill 247 was adopted by the House of Representatives on May 29, 1975. On June 3rd, it was finally transmitted to the Senate.

After Senator Perry publicly announced his opposition to the dog racing bill “on moral grounds” his law office in Tuskegee was firebombed on May 28, 1975.

Senator Perry first talked with the defendant concerning House Bill 247 on May 30,1975. By coincidence the defendant and Senator Perry met outside Perry’s law office in Tuskegee. Their conversation continued in the office. Senator Perry testified that the defendant told him that, “There’s big money in this thing for me and you and Thomas Reed and I want to talk to you about getting this bill passed and we’re going to do it one way or the other, either with you or without you”. The defendant stated that he was there for the purpose of trying to get Senator Perry “to agree to go along with the bill because it would be easier than having to do it any other way”.

The defendant asked Perry if he had talked with Representative Reed about the bill and Senator Perry told him that he had only spoken with the Representative once and that was at the Capitol when Reed brought the bill over the day it was introduced. The defendant requested Perry to talk to Reed and, at the request of the defendant, Perry had his secretary contact the Representative by telephone. The defendant spoke with Reed on the telephone, told him that he and Perry were “talking about the dog track bill” and asked “Mr. Reed if he would come down to the office and talk with us”.

Later that same afternoon of May 30th, as arranged, Reed and the defendant arrived together at Senator Perry’s law office. After Perry told the defendant and Reed that he would not change his position on the dog racing bill “Mr. Reed and Mr. Williams began to talk with one another back and forth there in my (Perry’s) presence”. Reed told the defendant that Perry was “taken care of in the bill” and the defendant told Reed that he wanted to help persuade Perry to change his mind but that he was not going to do anything unless “absolutely certain that Dudley will be taken care of”. Reed then told the defendant that Perry “is taken care of. There’s a provision in the bill for an attorney and there are no limits on the salary for the attorney.” Reed told the defendant the salary could be from $20,000 to $50,000 a year and asked Perry “What do you want out of it.” Perry stated that he would not and could not change his position explaining that he had been threatened and picketed and that if he were to change his position it would appear that he could be made to change his position on other matters in the future through the use of similar tactics. Senator Perry testified that Representative Reed then told him:

“that he would assure me that if I would change my position I would not be intimidated or would not receive any more telephone calls of that nature and that my office would not be picketed and that I could rest easy that they could control the threats and so forth.”
“Mr. Williams made a similar assurance and went on to say that he could also stop the newspaper which he owned and the local radio station from making, from editorializing against me on these matters.”

That afternoon Senator Perry went to his home and reported the meetings to F.B.I. agent Carmelle “Skip” Grafinini.

Under instructions from the F.B.I., Senator Perry arranged a meeting with the defendant and Representative Reed. On June 4, 1975, Reed and the defendant came to Perry’s law office in Tuskegee. Agent Grafinini and several other agents were in the office but out of sight.

Senator Perry told the defendant and Reed that he was under a great deal of pressure as a result of the threats that had been made against him and his family. He told them that he was now ready to talk about the bill and wanted to know more about the offer of the $50,000 a year for the attorney’s job.

Reed told Perry that “the job as attorney for the track was put into the bill for me (Perry). He (Reed) said that they were instructed to do so by the big wheels in Montgomery or something to that effect.” As instructed by the F.B.I., Perry asked Reed and the defendant how he could be sure that he would be appointed attorney for the track. Reed responded that “You’ll just have to trust me”. The defendant told Perry that he was planning on being one of the commissioners for the track and promised Perry that he would support him for attorney as a commissioner.

Perry told them that he had heard that there was “front money” available and that he wanted a part of it. Reed told Perry that there had been such money available but that Perry’s opposition to the bill had “tied up the money” and there would be none available until he changed his position. The defendant then said that he would like to act as a “go-between, an intermediary”, between whoever had the money and Reed and Perry “to dispense the money”.

The following day, at the State Capitol in Montgomery, Representative Reed approached Senator Perry and asked if there were anything else he could do or say to help Perry change his mind and “pass the bill out”. Perry testified that Reed told him he was “a young lawyer” who was “moving up” and said that “upward mobility is what it’s all about”. Reed told him that this was an opportunity for him to make up to $50,000 a year or more, and that he couldn’t afford “to pass that up”. Reed told him he should go ahead and “pass that bill out so that you can take this money”.

Representative Reed also told Perry there was a way he could be “assured of being the attorney for the track”, and told him that they could amend the bill so as to provide that each of them would appoint two of the five racing commissioners; that Reed would appoint the defendant as one of his appointees; that Williams had already promised Perry he would vote for Perry as attorney, and that Perry could appoint two commissioners who would also have promised to vote for him as attorney. This would assure Perry of three votes, a majority of the commission, for the job as attorney for the commission. Reed then assured Perry that his second appointee would also vote for Perry as attorney, giving him four out of five votes. Senator Perry testified that after this meeting he telephoned F.B.I. Agent Grafinini from the Capitol and informed him of the conversation with Thomas Reed.

Perry testified that each legislative day Representative Reed would come across to the Senate Chamber and ask if Perry had changed his position on the dog racing bill, and would ask if there were anything else that he, Reed, could do. They talked again about the attorney’s job on these occasions.

On June 9, 1975, Senator Perry had a conversation with the defendant at his home. Agent Grafinini and several other agents were present in another part of Perry’s house and tape recorded this conversation. At trial, after the State had laid a proper predicate, this tape recording was played for the jury.

During this conversation, the defendant told Perry that he was going to attack Perry publicly on the radio and through his newspaper if Perry did not change his position on the bill and tell the defendant that he would pass the dog track bill. The defendant told Perry that there was “a lot of money to be made” from the dog track bill and that “we ought to make it”; that he and Thomas Reed had “had some discussions about it” but that he and Perry “could probably make a lot more money”.

During this same conversation, the defendant told Senator Perry that he and Perry, as a racing commissioner and as attorney for the track, respectively, could together use their influence to solicit bribes from the people who sought to build and operate the dog track.

Senator Perry testified that the defendant also told him during this same conversation that Representative Thomas Reed had told him, the defendant, that he, Reed, would appoint the. defendant as a racing commissioner in exchange for the defendant’s promise to kick back to Reed $2,000 each year from his proposed $15,000 annual salary.

The conversation ended when the defendant agreed to withhold any public attack on Perry until the following day when Perry was to notify the defendant of his intention to either support or oppose the bill.

On the morning of June 10,1975, Senator Perry had a conversation with Representative Reed at Perry’s home. The conversation was also tape recorded by the F.B.I.

Perry testified that Reed told him during the conversation that they should go ahead and amend the bill as they had discussed in Montgomery so as to provide that each of them would appoint two of the five racing commissioners. Reed further told Perry that he would appoint the defendant to the commission, and repeated the promise he had previously made to Senator Perry in Montgomery, that all of his appointees to the commission would vote for Perry as attorney. Reed told Perry that $50,000 was “a lot of money” and again spoke of “upward mobility”.

Reed also told Perry that Perry shouldn’t take but $25,000 the first year as attorney for the racing commission, but that it could be raised to $50,000 the second year. Reed stated there might be no limit to what Perry could “ultimately make out of it”. Perry testified that Reed told him that it was his opinion that Perry, as attorney for the racing commission, would only have to spend about two hours a week working for the commission.

During this same conversation, Reed asked. Perry if Perry would not let Reed have two or three thousand dollars a year, or tell someone to let Reed have two or three thousand dollars a year should Reed get “in a tight” and need money.

Representative Reed told Senator Perry that he would bring him the proposed amendment to the bill that afternoon and that the amendment would provide that each of them appoint two of the racing commissioners, thereby assuring Senator Perry of the majority vote for attorney, consisting of the votes of Perry’s two appointees and the vote of the defendant whom Reed would appoint.

Senator Perry then testified that later that same day, June 10,1975, he saw Representative Thomas Reed in the Senate Chamber of the Capitol in Montgomery. Perry testified that Reed came to him and handed him a group of amendments and told him it was the amendment they had discussed which would change the appointive authority for the dog racing commission. Perry told Reed that he had decided not to change his position on the bill and that he would not vote to pass the bill, at which point Reed took the amendments out of Perry’s hand and walked away.

In his own defense the defendant testified that Senator Perry initiated the conversations about front money and denied any plan by Reed or himself to try to bribe Perry. The defendant admitted being interested in finding the “front money” and getting some for himself if it were legal. He also admitted “trying to make some money out of the bill”.

Applying the rules set forth earlier in this opinion, we find the evidence sufficient to support the jury’s verdict of guilty “as charged”. A thorough review of all the evidence convinces this Court that the defendant did directly, as well as indirectly through his collusion with Thomas Reed, offer or promise money or a thing of value, privilege or personal advantage to a member of the Legislature to influence him in the performance of his public and official duties.

I

Initially the defendant argues that he committed no criminal act in Montgomery County, therefore could only be tried in Macon County. The State contends that a conspiracy existed between the defendant and Thomas Reed and that Reed’s actions in Montgomery County properly gave that county venue. Consequently before the question of venue can be answered, it must first be determined what relationship, if any, existed between Reed and the defendant.

By statute the distinction between accessories before the fact and principals has been abolished in this state. Title 14, Section 14, Code of Alabama 1940, now Ala.Code Section 13-9-1 (1975). Thus all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be indicted, tried and punished as principals. Scott v. State, 30 Ala. 503 (1857); Watkins v. State, 357 So.2d 156 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978). Where two or more persons enter into a conspiracy to accomplish some unlawful act, any act done by any one of them in pursuance of the original conspiracy is, in contemplation of law, the act of all. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1951); Martin v. State, 89 Ala. 115, 8 So. 23 (1889); Amos v. State, 83 Ala. 1, 3 So. 749 (1887). The criminal law does not attempt to assess guilt in complicity by any device of percentage of fault, rather, where joint action or aiding and abetting appear, all participating can be found equally guilty. Dubose v. State, 50 Ala.App. 652, 282 So.2d 91 (1973). Where two or more persons enter upon a common undertaking which contemplates the commission of a crime, each is equally guilty of the offense committed, even though he did not commit an overt act. Haney v. State, 20 Ala.App. 236, 101 So. 533, cert. denied, 211 Ala. 614, 101 So. 537 (1924).

A conspiracy is provable either by direct or circumstantial evidence. Collins v. State, 138 Ala. 57, 34 So. 993 (1903). Indeed a conspiracy is rarely proven by positive or direct testimony but usually by circumstances. Muller v. State, 44 Ala.App. 637, 218 So.2d 698, cert. denied, 283 Ala. 717, 218 So.2d 704 (1968). However, before the acts of a confederate are admissible against a defendant, prima facie evidence only of a conspiracy is necessary. Williams v. State, 81 Ala. 1, 1 So. 179 (1887).

Any word or act contributing to the commission of a felony, intended to incite or encourage its accomplishment, makes one a co-conspirator. Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977). The words “aid and abet” comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary, and no particular acts are necessary. Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974). The defendant’s actual participation need not be proved by positive testimony; the jury is to determine whether it exists and the extent of it from the conduct of the parties and all the testimony adduced. Watkins, 357 So.2d at 159. The trial judge must determine initially whether there is prima facie evidence that a conspiracy exists. Once he so determines the existence of such a conspiracy becomes a question for the jury. Strange v. State, 43 Ala.App. 599, 606, 197 So.2d 437, cert. dismissed, 280 Ala. 718, 197 So.2d 447 (1966).

Reviewing the State’s evidence in this case we have no difficulty in determining that a prima facie case of conspiracy was established. Though we would not even begin to detail the numerous facts and inferences which would support the State’s conspiracy theory, we single out the agreement between the defendant and Reed whereby Reed would appoint the defendant as a commissioner and as a commissioner the defendant would vote for Perry as attorney. Both Reed and the defendant stated that the harassment and intimidation of Senator Perry would stop if he would agree to pass the bill. While no doubt the State’s evidence supports a finding that both Reed and the defendant sought some individual and personal financial gain, the evidence also fully supports a finding that they willingly cooperated with each other in illegally attempting to convince Senator Perry to vote for the dog racing bill.

That prima facie evidence of a conspiracy existed is as much as admitted by the defendant in his appellate brief when he argues that Reed and the defendant were being manipulated by Perry: “The defendant helped dig his own trap, as he admittedly testified, by trying to make Perry think that he and Reed were working together, while the truth was they were not.” This was the ultimate question to be determined by the jury in view of the defense presented: Were the defendant and Reed “innocent victims of a classic frame up” or were they joined in both agreement and action towards the goal of illegal personal enrichment and the corruption of a State Senator?

We will not belabor the point. Under the evidence presented the question of the existence of a conspiracy was for the jury. The court charged the jury on the issue of conspiracy. The evidence supports their finding that such a conspiracy existed.

To be convicted as an aider and abettor the indictment may charge the substantive crime. Such does not violate any constitutional provision. Stokley, supra; Watkins, 357 So.2d at 159.

II

Having established the presence of evidence sufficient to support the inference of the existence of a conspiracy between Reed and the defendant, we may now decide the issue of proper venue.

In a criminal prosecution the accused has a constitutional right to a trial “[in] the county or district in which the offense was committed”. U.S.Const. amend. VI; Ala.Const. art. 1, § 6. This constitutional guaranty is satisfied when part of the acts constituting the crime are committed in the county in which the indictment is returned. 22 C.J.S. Criminal Law § 177 (1961). By statute in Alabama it is provided that:

“When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county.” Ala.Code Section 15-2-6 (1975).

The controlling purpose of this section was the abrogation of the rule of common law that, when an offense was constituted by a series of acts, a part of which was done in one county and a part in another, there could be no prosecution in either unless so much was done in the one as would constitute a complete offense. Brown v. State, 108 Ala. 18, 23, 18 So. 811 (1895). See also 30 A.L.R.2d 1265 (1953) for the construction and effect of similar statutes. “A single, indivisible offense, not consisting of several parts is not within the operation of the statute.” DeGraffenried v. State, 28 Ala.App. 291, 293, 182 So. 482, 484 (1938). Before the statute can become operative in a criminal case, one of two things must appear:

“either the offense must be divisible and each part must be unlawful in and of itself, and committed at a different time and place, or it must consist of more than one act, each of which acts, or the effect of each must constitute an unlawful element of the offense, without the presence of which the offense could not be consummated.” DeGraffenried, 28 Ala.App. at 293, 182 So. at 484.

Even though the evidence is clear that the defendant never performed a single act in Montgomery County during the existence of this conspiracy, venue was proper in that county. Because of the conspiracy, the acts of Reed in furtherance of the conspiracy were the acts of the defendant even though the defendant may not have been present. Stokley, supra. “(W)here a statute provides that an accessory before the fact may be prosecuted and convicted as for a substantive felony, his crime is cognizable in any court having jurisdiction of the principal.” 22 C.J.S. Criminal Law § 184 (1961).

Representative Reed’s actions in Montgomery must be examined to determine whether they are sufficient to meet the test set forth in DeGraffenried, supra, for invoking Section 15-2-6. Reed had four meetings with Senator Perry in Montgomery concerning the dog racing bill.

(1) Around the first of May, 1975, at the opening of the 1975 Regular Session, Representative Reed handed Senator Perry a copy of the dog racing bill and told him that “We’ve got you taken care of”. This meeting which we have described earlier was innocuous in and of itself. Only when coupled with subsequent events does it assume any significance.

(2) On June 4th Reed approached Perry in the Capitol in Montgomery and assured Perry that he could be the attorney for the track. Reed stated that the bill could be amended so that each of them could appoint two of the five racing commissioners. Reed stated that he would appoint the defendant who had already promised that he would vote for Perry as attorney.

(3) Daily Reed visited the Senate Chamber to ask Perry if he had changed his mind and to see if there were anything else that he could do.

(4) On June 10, 1975, Reed handed Perry an amendment and said that it was the amendment they had discussed earlier that day which would change the appointive authority for the dog racing commission.

When all the evidence is considered we think it is sufficient to support a finding that Reed’s actions in Montgomery were in furtherance of the conspiracy. The attempted bribery of Senator Perry must be viewed as a continuing transaction — one occurring not at one specific meeting but over a period of several. Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974). One meeting is linked to the other so that together they form a total or whole transaction. Hence venue was proper in either Macon or Montgomery County.

III

The defendant argues that the crime of bribery was completed before Reed met with Perry on the afternoon of June 10th. This argument has no merit.

The correct rule as recognized by the defendant is stated in Edwards v. State, 279 Ala. 371, 185 So.2d 393 (1966):

“Evidence showing the act or declaration of one conspirator is admissible against the other conspirator when done or made ‘in furtherance of the common design.’ ”
*******
“That rule does not, however, make evidence showing the declaration of one confederate admissible against the other when the declaration was not made until after the purposes of the unlawful combination had been accomplished.” Edwards, 279 Ala. at 381, 185 So.2d at 403-404 (Emphasis added).

A conspiracy involving the commission of a substantive crime may extend beyond the actual commission of the offense and the fact that a conspiracy has ended does not preclude its continuance for various secondary purposes. Hence continuing conspiracies have been recognized where the evidence warrants a finding of accused’s participation in a conspiracy to suppress or fabricate evidence of the crime after its commission, Levison v. State, 54 Ala. 520 (1875); Lancaster v. State, 214 Ala. 2, 106 So. 617 (1925); Latham v. State, 56 Ala.App. 234, at 246-247, 320 So.2d 747, affirmed, 294 Ala. 685, 320 So.2d 760 (1975); Dailey v. State, 233 Ala. 384, 171 So. 729 (1937), or a continuing conspiracy to divide the fruits of the crime. C. Gamble, McElroy’s Alabama Evidence, § 195.03(6) (3rd ed. 1977).

Here it is obvious that the conspiracy to bribe Senator Perry embraced not only the actual act of bribery itself but the passage of the bill and the appointments of Williams as a commissioner and Perry as the attorney. These were the purposes of the unlawful combination. When Senator Perry ended the matter on June 10, 1975, by informing Reed that he would not change his position of opposition to the dog racing bill, Reed and the defendant were still in the process of attempting to unlawfully influence his decision. Hence it is clear that the conspiracy was far from completed. Bynum v. State, 348 So.2d 804 (Ala.Cr.App.1976), cert. quashed, Ex parte Bynum, 348 So.2d 828 (Ala.1977).

IV

The indictment charges that the defendant did “offer or promise a thing of value or personal advantage”. The statute condemns the unilateral offer or promise of a bribe. Proof of a bilateral agreement, that is, that the officer accepted the bribe, is not required. See Caruthers v. State, 74 Ala. 406 (1883).

That Thomas Reed was convicted of attempting to offer or promise a thing of value, or that he was even convicted at all, is of no consequence to the case against the defendant. It is not required that the principal be convicted or even that his identity be established. United States v. Merriwether, 329 F.Supp. 1156, affirmed, 469 F.2d 1406 (5th Cir. 1971). In a case of crime admitting degrees of guilt, where the principal offender has been tried and convicted of one of the lower degrees, the one indicted as an aider and abettor can after-wards be tried and convicted of a higher degree. Bridges v. State, 48 Ala.App. 249, 263 So.2d 705 (1972).

V

Count one of the indictment concerned “House Bill 247”. Count two was identical except that it concerned “proposed amendments to House Bill 247”. The trial court properly denied defense counsel’s motion to require the State to elect. The rule is that the court will not compel an election unless it appears either from the indictment or the evidence that an attempt is made to convict the accused of two or more offenses growing out of separate and distinct transactions. Ex parte State, 197 Ala. 419, 73 So. 35 (1916); Butler v. State, 91 Ala. 87, 9 So. 191 (1890); Breedwell v. State, 38 Ala.App. 620, 622, 90 So.2d 845 (1956). Here “the purpose and effect of the joinder was to meet the different aspects in which the evidence may present a single transaction” or a single offense. Breedwell, 38 Ala.App. at 622, 90 So.2d at 846. Election was not required. Wooster v. State, 55 Ala. 217 (1876); Mayo v. State, 30 Ala. 32 (1857).

VI

The defendant alleges that the State’s exercise of its thirteen peremptory challenges to strike thirteen blacks from the jury venire constituted a denial of a fair trial by an impartial jury.

Although one black did sit on the defendant’s jury, a defendant is not entitled to a jury containing members of hjs race. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Swain, the United States Supreme Court considered ánd decided the very issue the defendant presents.

“In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.” Swain, 85 S.Ct. at 837.

The courts of this state have consistently followed the holding of Swain. Radford v. State, 348 So.2d 880, 882 (Ala.Cr.App.1977); Liptroth v. State, 335 So.2d 683 (Ala.Cr.App.), cert. denied, 335 So.2d 688 (Ala.1976). Under the authority of Swain, supra, the defendant’s motion to quash the venire or dismiss the indictment was properly denied.

VII

The trial court acted within its discretion in granting the State’s request to quash the subpoena duces tecum directed to Senator Perry. In denying “each and every matter requested as they are requested in the subpoena” the court specifically noted that the requests were not related to the Macon County dog track bill.

“COURT: That’s not what you’re asking for, not as they relate to any dog track bill in Macon County. As I read this subpoena duces tecum you want any and everything he has ever had about anything and anywhere and whatever, any dog track bill, any deed, any mortgage, any claim, any trust, all monies, you know.”
* ' * * * * *
“Is that what you are asking for then? And when you say all records, deeds, mortgages, notes and so forth, 7345, that’s what you are saying, as they relate to this Macon County dog track bill? “MR. CHEEK (Defense Counsel): No, Sir.
“COURT: That’s what would be relevant or irrelevant about it. If you want all of his deeds and mortgages and all of his notes, that’s one thing. If you want any deed, mortgage or note as they relate to the Macon County dog track bill and his relationship that may be with it then we may be getting into something relevant. As this subpoena duces tecum relates, I stand by my ruling denying each and every one of them. I was just trying to point out to you my feeling as to why the ruling was as it was.”
* * ijs * ‡ *
“Well, then, at that time if and when that matter becomes relevant, if you have any information or can produce anything to make it relevant that Senator Perry may have been doing what he was doing and showing some bias and prejudice so he could put the dog track on his property then it would be relevant and then you can ask for the deed where it would show he was going to put it on there, and then it would be relevant.”

The rule is stated in Ex parte Hart, 240 Ala. 642, 646, 200 So. 783, 785-786 (1941):

.“Touching the showing to be made on application for such writ [subpoena duces tecum], it is written: ‘On a motion or application for a subpoena duces tecum at least where its issuance is opposed or the rightfulness thereof assailed, it must be made to appear that the evidence which the books or papers of which production is asked will furnish is competent, and relevant and material to the issues before the court. * * * Facts which will enable the court to judge of the relevancy and materiality of the documents must be stated.’ 70 C.J. p. 52, Section 39.”

In Alabama a subpoena duces tecum addressed to persons not a party to the action is authorized by Title 7, Section 489, Code of Alabama 1940, now Alabama Code Section 12-21-2 (1975). This section looks to the production of books and documents for use as evidence on the trial of a case. It excludes the notion that it also embraces discovery as one of its purposes. Ex parte Anniston Personal Loans, Inc., 266 Ala. 356, 96 So.2d 627 (1957).

VIII

The constitutional guaranty of a public trial does not apply to “conferences on questions of law which take place during the trial but out of the hearing of the jury”. 21 Am.Jur.2d Criminal Law, Section 260 (1965); 23 C.J.S. Criminal Law § 963(4)b (1961).

“It is proper to hold in camera sessions where the subject matter of the conferences between court and counsel consists solely of questions of law, as opposed to matters advanced for the consideration of the triers of fact.”
People v. Murphy, 35 Cal.App.3d 905, 926, 111 Cal.Rptr. 295, 307 (1973).

IX

The trial court did not commit reversible error in overruling the objection of defense counsel to Senator Perry s testimony that House Bill 247 was introduced to legalize dog racing in Macon County. The objection was not made until after the Senator had given a responsive answer to the prosecutor’s question. Therefore the objection came too late. Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954); Grooms v. State, 228 Ala. 133, 152 So. 455 (1934); Chambers v. State, 356 So.2d 767 (Ala.Cr.App.1978). Additionally, testimony which is apparently illegal upon its admission may be rendered “prejudicially innocuous” by subsequent legal testimony to the same effect or from which the same facts can be inferred. Yelton v. State, 294 Ala. 340, 342, 317 So.2d 331 (1974); Zorn v. State, 20 Ala.App. 404, 102 So. 722, cert. denied, 212 Ala. 414, 102 So. 723 (1924). The admission of incompetent evidence is harmless error where the fact to which such evidence relates is otherwise established by competent evidence. Falkner v. State, 151 Ala. 77, 44 So. 409 (1907). The introduction of a copy of House Bill 247 cured any error in the admission of Senator Perry’s testimony on this matter.

X

For these. same reasons the defendant was not “irreparably prejudiced” by Senator Perry’s references to “instructions from the F.B.I.” where the agent who gave the Senator those instructions later testified that he did so, stated the extent of the instructions and was cross examined by defense counsel. Roynica v. State, 54 Ala.App. 436, 443, 309 So.2d 475 (1974), cert. denied, 293 Ala. 772, 309 So.2d 485, cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1975); Wright v. State, 343 So.2d 795 (Ala.Cr.App.), cert. denied, 343 So.2d 801 (Ala.1977); Stokes v. State, 13 Ala.App. 294, 69 So. 303 (1915).

XI

The trial court did not err in sustaining the State’s objection to defense counsel’s question of Senator Perry, “Did you consider it to be a bribe then?” The defendant’s argument that Perry’s “subjective state of mind” or “belief” of whether he was being offered a thing of value was “critical” towards establishing a defense is without merit. Under the terms of the statute under which the defendant was indicted the offense condemned is the unilateral offer of a bribe. Acceptance of the bribe, the thing of value, is of no consequence and a bilateral agreement is not required. See McDonald v. Headrick, 554 F.2d 253 (5th Cir. 1977) (construing Title 14, Section 64, Code of Ala.1940).

The question to Senator Perry called for a conclusion and objection was therefore properly sustained. Stewart v. State, 27 Ala.App. 315, 172 So. 675, cert. denied, 233 Ala. 480, 172 So. 678 (1937). A witness may not testify to matters directly in issue. Harris v. State, 39 Ala.App. 139, 99 So.2d 201, cert. denied, 266 Ala. 697, 99 So.2d 204 (1958). A witness should state facts regarding matters inquired about and allow the jury to reach its own conclusions. Knight v. State, 160 Ala. 58, 49 So. 764 (1909); Wade v. State, 349 So.2d 141 (Ala.Cr.App.1977); Smith v. State, 21 Ala.App. 460, 109 So. 294 (1926).

XII

The trial court acted within its discretion in sustaining the State’s objection to' defense counsel’s question of whether Senator Perry “represent(ed) any governmental agencies as an attorney while you were in the Senaté?” The defendant was allowed a searching and sifting cross examination. However the scope and extent of cross examination are within the discretion.of the trial court. In the absence of the abuse of that discretion its ruling will be upheld. Connell v. State, 294 Ala. 477, 318 So.2d 710 (1974); Turner v. State, 289 Ala. 97, 265 So.2d 883 (1972). This Court, rejects the defendant’s contention that the “answer to that question was directly relevant to Williams’ defense that instead it was Perry who was soliciting a job, not Williams’ offering one”.

XIII

The trial court refused to allow Macon County Commissioners Harold Noble and Otis Pinkard to testify that Senator Perry had solicited the job of county attorney from them. The court sustained the State’s objection after requesting defense counsel to “show me some relevance as to whether or not Mr. Perry ever asked to be the county attorney, what relevance would that have toward any conduct or bias or prejudice or anything?”

The in camera testimony of each witness shows that Perry allegedly asked for the job in 1976 or 1977 at a time when all the. criminal events embraced within the charged crime had ended.

Called to testify for the defense Senator Perry denied ever asking Mr. Noble around the period of January, 1977, in Tuskegee, if he could not become the county attorney. Out of the'jury’s presence Mr. Noble testified sometime in 1976 “I couldn’t tell you what time it was or where it was or when but he met me one day and said ‘Let me be ya’ll’s attorney’ ”. Mr. Noble, on cross examination testified that to his knowledge Perry never applied to the commission for the job as attorney for the County Commission.

Mr. Pinkard testified out of the jury’s presence that at the commission meeting in February, 1977, “someone made a statement that Senator Perry had contacted them relative to becoming county attorney and, of course, another commissioner said that, ‘Well, he contacted me, too’ ”. This was before the meeting started and it was not discussed in an official manner.

In view of the showing made by defense counsel, or rather the lack of any showing, we fail to see the relevance of what Senator Perry did subsequent to the events alleged in the indictment. A witness cannot be cross examined, as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him. Blakey’s Heirs v. Blakey’s Executrix, 33 Ala. 611 (1858). A witness cannot be impeached by being contradicted upon an immaterial matter. Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961); Weeks v. State, 346 So.2d 1181 (Ala.Cr.App.1977); Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516, cert. denied, 291 Ala. 628, 285 So.2d 525 (1973).

Furthermore, absolutely no predicate whatsoever was laid to impeach Perry through Mr. Pinkard’s testimony.

XIV

The trial court did not err in refusing to exclude two answers given by Agent Grafinini on cross examination that were in response to and responsive to questions asked by defense counsel. Error cannot be predicated upon the admission of testimony that is elicited by defense counsel and which is responsive to defense questions. Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968); Brown v. State, 338 So.2d 1050 (Ala.Cr.App.1956). Additionally, we fail to see how Agent Grafinini’s two responses, that he knew Perry’s office was firebombed because “it was reported to me by the Alcohol, Tobacco and Firearms” and that he knew the tape recording was taken to “our headquarters in Mobile” because “the chief clerk told me it was down there”, could have in any way injured this defendant. Rule 45, Alabama Rules of Appellate Procedure.

The statement of Senator Perry objected to as hearsay was not hearsay. He was simply testifying as to what he said to the defendant and Representative Reed— not what someone had told him.

XV

The defendant alleges that he was denied a fair trial because the trial judge failed to recuse himself and because his rulings “consistently show a pattern of siding with the prosecution”. Defendant’s contentions are grounded on the fact that the trial judge made 187 rulings adverse to the defendant and only 78 rulings adverse to the State.

The law on this subject is clear and does not need to be repeated here. In re White, 53 Ala.App. 377, 300 So.2d 420, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974); Payne v. State, 48 Ala.App. 401, 265 So.2d 185 (1972). It is presumed that a judge is qualified and unbiased. The defendant alleging bias on the part of a judge has a substantial burden to show the grounds therefor. Schillaci v. State, 347 So.2d 556 (Ala.Cr.App.), cert. denied, 347 So.2d 559 (Ala.1977). It would be a simple matter to determine bias or prejudice merely by weighing which side has received the most adverse rulings. However, the mere number of adverse rulings a defendant receives during the course of a trial is not, in and of itself, any indication of any bias or prejudice on the part of the trial judge. The record before this Court does not support the defendant’s allegations of heavy prosecutorial bias but, rather, reflects that he received a fair trial at which he was represented by diligent and aggressive legal counsel.

XVI

The defendant was indicted and tried before the effective date of Alabama Code Section 15-11-1 (1975). Consequently he was not entitled to a preliminary hearing as a matter of right. Ex parte Campbell, 278 Ala. 114, 176 So.2d 242 (1965); Scaife v. State, 337 So.2d 146 (Ala.Cr.App.1976).

XVII

The record shows two arraignments of the defendant with no explanation as to why this occurred. The defendant alleges that he was not represented by counsel at the first arraignment and consequently a second arraignment was necessary. The record shows that the defendant was present with counsel at the arraignment on September 26, 1976, and on October 18, 1976. This Court cannot consider assertions in brief not supported by the record. Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Dates v. State, 282 Ala. 457, 212 So.2d 845 (1968).

This Court has searched the record for error prejudicial to the defendant and found none. We have studied the voluminous briefs filed by counsel and have considered their arguments. After review it is our judgment that the defendant received a fair trial under the Constitution and laws of the United States and the State of Alabama. The judgment of the circuit court is therefore affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., dissents.

BOOKOUT, Judge,

dissenting:

I am unable to concur in Part II of the majority opinion concerning venue.

The evidence does not show the existence of a conspiracy between Williams and Reed at the time Reed first approached Perry in. the senate chamber in Montgomery. Williams did not come into the picture until his coincidental meeting with Perry in Macon County on May 30, 1975. Later that same day, the conspiracy came into full bloom when Reed and Williams met with Perry and Reed offered Perry the attorney’s job if Perry would change his position on the proposed dog racing legislation.

The evidence shows both Williams and Reed to be parties to the offer made in Macon County, which constituted the completed crime of bribery pursuant to Title 14, § 73, Code of Ala. 1940, which makes it an offense to “offer ... or promise any money, or thing of value ... or personal advantage, to any . . . member of the legislature to influence him in the performance of any of his public or official duties.” Thus, the offer or promise may constitute the offense of bribery without actually giving the thing of value. Reed v. State, Ala.Cr.App., 372 So.2d 872 (1978). Therefore, the only bribery in which the evidence shows Williams to be implicated took place in Macon County. Perry declined their offer, and the evidence fails to show Williams to be a party to any subsequent attempts by Reed in Montgomery County to induce Perry to change his mind. The evidence does not show any further participation by Williams outside Macon County, nor does it show knowledge or acquiescence on his part that Reed was pursuing the matter later in Montgomery.

To be tried in the proper venue is a constitutional right guaranteed by Article I, § 6, Constitution of Alabama 1901. The authority cited by the majority to try Williams in a county in which he committed no overt act is 22 C.J.S. Criminal Law § 184. No Alabama cases supporting that proposition are noted under that section in C.J.S., and none are cited in the majority opinion on that precise point. The compilation of cases in C.J.S., cited supra, are from foreign jurisdictions, many of which are based upon specific conspiracy-venue statutes.

Title 14, § 14, Code of Ala. 1940 (now § 13-9-1) places guilt equally upon principals and accessories, however, that statute does not relate to venue and does not establish a per se rule that an accessory is triable in any court having jurisdiction over the principal. Under § 14, supra, it is possible for an accessory to be equally guilty as the principal by aiding and abetting in the commission of the offense although not present at the time of its commission. Here, the evidence, establishes that Reed alone made the bribery offer in Montgomery County. In order for Williams to be guilty as an accessory to those offenses, I believe the State must show more than the fact that Williams and Reed jointly committed a similar offense at another time in Macon County-

The evidence fails to show any criminal act committed in Montgomery County by Williams, either directly or indirectly. To be guilty of a crime in Montgomery County, though not present, Williams must he shown by the evidence to have aided and abetted Reed in the commission of those offenses. While we may suspect that Williams had knowledge of and consented to Reed’s conversations with Perry in Montgomery, still the State’s evidence has failed to prove such. Under the evidence presented in the instant record, the venue was established as being in Macon County.

ON REHEARING

BOWEN, Judge.

The evidence indicates that the conspiracy between Reed and the defendant began on May 30, 1975, and continued until June 10, when Senator Perry told Representative Reed that he had decided not to change his position on the dog racing bill. As late as June 9 the defendant threatened that he was going to attack Perry publicly unless he agreed to vote for the bill. The evidence clearly shows that during this time both Reed and the defendant were involved in continued efforts to bribe Senator Perry.

As Part II of the majority opinion points out, Reed, in furtherance of the overall scheme which he and the defendant had engineered and with which the defendant was in decided agreement, continued to pursue their contrivance in Montgomery. The plan to which the defendant had agreed and was hopeful of achieving did not, in fact, end in Macon County. It was continued in Montgomery through his co-conspirator’s efforts.

Reed’s June 4th approachment of Perry at the Capitol, after the May 30th conversations between the defendant Reed, and Perry in Tuskegee, and Reed’s daily visits with Perry in the Senate Chamber are proof that the scheme or conspiracy to accomplish the bribe was continued and kept very much alive in Montgomery County. It does not matter that the defendant may not have entered the scheme until May 30th after Reed had initiated it in early May. When, by prearrangement, or on spur of the moment, two or more persons enter upon a common enterprise and a criminal offense is contemplated, then each is a conspirator, and if purpose is carried out each is guilty of the offense, whether he did any overt act or not. Teague v. State, 245 Ala. 339, 16 So.2d 877 (1944). The conversations in Montgomery simply cannot be filtered out and separated from those in Macon County. They were all part of one transaction, one overall plan. Venue was thus proper in either county. Alabama Code Section 15-2-6 (1975).

It does not matter whether the defendant had actual knowledge of Reed’s meetings with Perry, whether he intended for Reed to speak with Perry in Montgomery or even whether he acquiesced to such meetings.

“(W)hen two or more persons join in an unlawful enterprise each is responsible for everything which may consequently and proximately flow from the unlawful purpose, whether committed by the accused or not, and whether specifically intended or not. [Citations omitted]. All persons concerned in the commission of a felony, directly or indirectly, are equally guilty. Prophett v. State, 25 Ala.App. 20, 141 So. 257 (1932). And, it is not necessary that the aider be present. Griffin v. State, 26 Ala.App. 292, 158 So. 773 (1935).” Conley v. State, 354 So.2d 1172, 1177 (Ala.Cr.App.1977). (Emphasis added).

When a defendant becomes a participant in an illegal venture for one purpose he becomes one for all. Ladd v. State, 39 Ala.App. 172, 98 So.2d 56 (1957). The evidence is clear that Reed committed no action in Montgomery relevant to the proceedings against the defendant which could possibly be construed as riot being within the scope of the conspiracy. In fact, the furtherance of the conspiracy was the central focus of all his meetings with Perry. A member of a conspiracy need not know of every transaction in an illegal scheme so long as he knows of its general scope. United States v. Bobo, 586 F.2d 355 (5th Cir. 1978). Each conspirator appoints the other as his agent. Foster v. State, 43 Ala.App. 435, 191 So.2d 523, cert. denied, 280 Ala. 713, 191 So.2d 527 (1966).

In the early case of Bishop v. State, 30 Ala. 34 (1857), a forgery case, the Supreme Court held that a person, being present at the time in one county, may, through the. hands of an innocent agent in another county, utter and publish as true a forged instrument in the latter county, so as to be there guilty of forgery.

“(W)hen the agent, being himself innocent, utters or publishes the forged instrument as true, the offense of uttering is complete, and the guilty principal, though in a distant county, is regarded as the author of the crime; and the crime is regarded as committed by him, at the place where the agent uttered the forged instrument.” Bishop, supra, 30 Ala. at 40:

If this proposition holds true where the agent is innocent, then how much truer must it be where the agent is a co-eonspirator?

After having carefully considered each argument advanced by the defendant on rehearing, we are of the opinion that the application is due to be overruled.

OPINION EXTENDED;

APPLICATION FOR REHEARING OVERRULED.

HARRIS, P. Ji, and TYSON and DeCAR-LO, JJ., concur.

BOOKQUT, J., adheres to dissent.


author: BEATTY, Justice. JONES, Justice

text:
    Ex parte Ronald WILLIAMS. (Re: Ronald Williams v. State of Alabama).
    78-692.
    Supreme Court of Alabama.
    April 4, 1980.
    Rehearing Denied May 16, 1980.
    Julian L. McPhillips, Jr., Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., John A. Yung, IV, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

The writ of certiorari was granted to review that part of the decision of the Court of Criminal Appeals which determined that venue for this prosecution was properly laid in Montgomery County. The facts of the case are exhaustively described in that opinion.

Consideration of the venue problem begins with our Constitutional provisions. The Alabama Constitution, § 6 mandates that “. . . in all criminal prosecutions, the accused has a right to . in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed . . . .” But what if the accused himself does not perform the act which results in the completed offense, but is part of a conspiracy to accomplish that end (bribery here)? In that instance there is more than one way of upholding venue in the county where the principal, or co-conspirator was tried. One of these combines the substantive law of conspiracy and the statute which eliminates the principal-accessory distinction, Code of 1975, § 13-9-1.

That statute goes on to state that “all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals . . . .” That language certainly fits a conspiracy and makes the question of venue one inextricably tied to the law of conspirators. One could construe this language to simply state that a conspirator, even though not present when the ultimate crime was committed, but being liable as a principal, and being accountable as a principal, is therefore triable as a principal in the county where the principal could be tried, . e., where that principal committed the intended crime. The law of conspiracy supports that view. There are a good many, older cases which discuss the law of conspiracy: Williams v. State, 81 Ala. 1, 1 So. 179 (1887); Tanner v. State, 92 Ala. 1, 9 So. 613 (1891); Jones v. State, 174 Ala. 53, 57 So. 31 (1911); and these have been followed; Pendleton v. State, 57 Ala.App. 454, 329 So.2d 145 (1976). Tanner contains some significant language which bears on our venue problem, at 9 So. 615:

When two or more enter upon a common enterprise or adventure, . . . and that enterprise contemplates the commission of a criminal offense, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist, the active perpetrator in the commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. And this criminal accountability extends not alone to the enterprise, ... in which the conspirators are engaged, but it takes in the proximate, natural, and logical consequences of such adventure. This because all men are presumed to intend the proximate, natural, and logical consequences of acts intentionally done; and one who is present, encouraging or ready to aid another in such conditions,, must be presumed to be cognizant of that other’s intention to the extent above expressed. If such conspiracy or community of purpose embrace the contingency that a deadly encounter may ensue, with the common intention, express or implied, to encourage, aid, or assist, even to the taking of life, should the exigencies of the encounter lead up to that result, then, as a general rule, the act of one becomes the act of all, and the one who encourages, or stands ready to assist, is alike guilty with the one who perpetrates the violence. . . . [Emphasis added.]

[The same principles may be applied to the offense of bribery.] It follows that the law looks upon such a conspirator, or one who is ready to aid, as an actual participant in the completed offense. That is, he is considered a principal (as the statute states). In short, the act of Reed was the act of Williams. Accord, Smith v. State, 221 Miss. 184, 72 So.2d 215 (1954); Workman v. State, 216 Ind. 68, 23 N.E.2d 419 (1938); McLemore v. State, 241 Miss. 664, 126 So.2d 236 (1961); Carlisle v. State, 31 Tex.Cr.R. 537, 21 S.W. 358 (1893). This being so, then it follows that the venue for Williams' trial would be the venue for the principal’s trial. See 22 C.J.S. Crim. Law § 184 for many cases on point. If this is not the result in such cases we would be forced to conclude that the framers of our Constitution, and codifiers following them, carved out a venue exception in conspiracy cases necessitating separate trials in perhaps a multiplicity of different counties, when at the same time their actors are legally looked upon as co-principals participating in the completed offense. As applied to these legal principles such a construction is unreasonable.

There is another way of looking at the venue problem. Section 15-2-6 states that “When . . . the acts or effects [of an offense] constituting or requisite to the .consummation of the offense occur in two or more counties, venue is in either county.” This statute is almost identical with § 781 of the California Penal Code. A California case applying venue to a bribery prosecution interpreted this statute:

Obviously, the phrase, “or requisite to the consummation of the offense” means requisite to the completion of the offense— to the achievement of the unlawful purpose — to the ends of the unlawful enterprise. By the use of the word “consummation” the legislature drew a distinction between an act or an effect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense — that is, to the achievement of the unlawful purpose of the person committing the offense. [People v. Megladdery, 40 Cal.App.2d 478, 106 P.2d 84 (1940).]

It hardly seems arguable that there were acts done in Montgomery County which were requisite to the achievement or end of the unlawful purpose and which would lay venue in Montgomery County.

A final point concerns this Court’s decision in Reed v. State, Ala., 372 So.2d 876 (1979). What we held was that, in' effect, the jury had found Reed not guilty. Now that means that a jury has found one co-conspirator not guilty. Such a result is not inconsistent with the law of aiders and abettors. The case of Bridges v. State, 48 Ala.App. 249, 263 So.2d 705 (1972) has settled that question over the argument that an aider and abettor can receive no more punishment than his principal or be found guilty of a greater offense than his principal. Pointing to former Tit. 14, § 14 (now § 13-9-1 and which abrogated the principal-accessory distinction) the Court noted that the statute did not require the same degree of the offense or mandate the same punishment. One jury could not be bound by another jury; otherwise it would not be the sole judge of the facts. The court adopted language from Christie v. Commonwealth, 193 Ky. 799, 237 S.W. 660 (1922), holding that an aider and abettor may be convicted of a felony at a subsequent term of court, though the principal was either acquitted or convicted of a misdemeanor at an earlier term. 24 A.L.R. 603 at 607 annotates similar holdings. Other cases in accord are Megladdery, supra; State v. Peel, 111 So.2d 728 (Fla.1959); Wages v. State, 210 Miss. 187, 49 So.2d 246 (1950). Any seeming inconsistency in the results of these cases furnishes an appeal to executive clemency.

The decision of the Court of Criminal Appeals is affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER and ALMON, JJ., concur.

JONES, SHORES and EMBRY, JJ., dissent.

TORBERT, C. J., not sitting.

JONES, Justice

(dissenting):

On September 17,1976 the Grand Jury of Montgomery County returned a joint indictment against State Representative Thomas Reed and Ronald Williams. They were jointly charged with the statutory offense of bribery, a felony under Code of Alabama, § 13-5-31. Williams was tried in Montgomery County, found guilty “as charged” on May 20,1977, and sentenced to a term of imprisonment of two years. His conviction was affirmed upon review by the Court of Criminal Appeals.

It is important to observe that the joint indictment of Williams and Reed did not include a charge of conspiracy and it is conceded by the State that Williams was not tried for a conspiracy. Consequently Williams’ guilt “as charged” under the indictment would be based either upon his conduct as a principal actor under the bribery statutes or upon his conduct as an aider or abettor. See Code of Alabama, § 13-9-1; Bridges v. State, 48 Ala.App. 249, 263 So.2d 705 (1972). Indeed, it is the State’s position that the evidence presented at trial would have supported either conclusion, i. e., that Williams could have been viewed as an accomplice or as a principal. Under either view, according to the State of Alabama, venue properly would have been laid in Montgomery County under § 13-9-1 because, being an accomplice, Williams was' culpable as a principal even though he was not physically present in Montgomery when Reed made proposals to Senator Dudley Perry and he, Williams, did nothing in Montgomery County to effect the bribery. (The facts surrounding those proposals are given in the opinion of the Court of Criminal Appeals and need not be repeated here). In other words, as an accomplice Williams would be liable for the acts of Reed which were committed in Montgomery County. This was also the position taken by the majority of the Court of Criminal Appeals in their opinion.

That position, however, fails to take into account the legal effect in our decision in Reed’s case. Although Reed was charged with the felony offense of bribery, the jury found Reed guilty of the misdemeanor offense of attempt to bribe under Code of 1975, § 13-9-3. On review of Reed’s case by certiorari this Court held that Reed’s conviction of the misdemeanor, attempt to bribe, was a legal nullity because any such inchoate offense was subsumed by the bribery offense described in § 13-5-31 and made a felony. We also held that when the jury found Reed guilty of attempted bribery, “the jury necessarily acquitted him of the higher offense — the felony of bribery as charged.” Ex parte Reed, Ala., 372 So.2d 876 (1979). In other words, Reed’s acquittal of bribery was a finding that there was an absence of sufficient proof that Reed had committed any illegal act of bribery in Montgomery County. It follows, therefore, that there does not exist any act of Reed’s in Montgomery County for which Williams could be liable as an accomplice. Therefore it was improper to lay venue in Montgomery County. Constitution of 1901, Art. 1, Sec. 6; Code of 1975, § 15-2-2.

Viewing Williams’ conduct as that of a principal offender, the record does contain evidence of acts and statements by Williams in Macon County when he and Reed made an offer to Senator Perry. That conduct would have satisfied the venue requirements for a prosecution in Macon County. Accordingly, the decision of the Court of Criminal Appeals finding that venue was proper in Montgomery County was incorrect.

SHORES and EMBRY, JJ., concur.


author: BOWEN, Judge.

text:
    Walter W. HOWELL v. CITY OF BIRMINGHAM.
    6 Div. 916.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      Ferris S. Ritchey, Jr., Birmingham, for appellant.
    W. O. MacMahon, III, Birmingham, for appellee.
   BOWEN, Judge.

This is an obscenity case involving the exhibition of a movie entitled “Honeypie” in violation of Birmingham City Ordinance 16-18 as amended.

The defendant was employed as a clerk and movie projectionist at the Tomkat The-atre in Jefferson County. He was tried and convicted in Municipal Court. He appealed to the Circuit Court, was tried by a jury and fined five hundred dollars. The trial judge imposed a sentence of 180 days hard labor.

I

In Holderfield v. City of Birmingham, Ala.Cr.App., 380 So.2d 990, (1979), this Court held that a jury trial is not constitutionally required for an obscenity prosecution in the municipal court.

II

As in Starley v. City of Birmingham, Ala.Cr.App., 377 So.2d 1131 (1979), and Holderfield, supra, there is no evidence that Birmingham City Ordinance 16-18 as amended has.been intentionally and selectively enforced in violation of the equal protection clause of the Fourteenth Amendment.

III

The defendant alleges that the cumulative effect of prejudicial statements by the trial court and the prosecutor in reference to the film denied him a fair and impartial trial.

During the voir dire examination of the jury venire, the prosecutor inquired:

“Do you realize that you have the duty to serve on this jury if you are so selected even though the subject matter is unpleasant, degrading of the love act and degrading of the actors?”
* * * * * *
“. . . — assuming that you find the subject matter to be projected on that screen, to be unpleasant, degrading of the love act and degrading to the actors, would you still be able to sit on this case, take the evidence, take the law as Judge Cole will give it to you and reach an unbiased verdict based on the evidence and the law in this case?”

Also, the trial judge stated:

“Just because this movie which somebody is going to see, twelve of you, is distasteful, just because you may not approve of it, that is no reason nor am I excusing anyone for that reason.”
******
“But those are the two criteria, can you base your verdict in this case on what the law is absolutely and on what the evidence is absolutely.”

In Starley, supra, this Court addressed a similar issue:

“During the voir dire examination of the venire, the trial judge, in response to a venireman’s doubt that he could not view the evidence fairly and impartially, instructed the venire that many cases contain revolting evidence which may result in a jury having unpleasant jobs, duties, and responsibilities. Furthermore, he stated that each juror would be applying contemporary community standards when viewing the magazine and that each one would not be asked to apply his or her personal opinion to it. The appellant did not object to this instruction.
“We find that the trial judge did not commit error in instructing the venire as to the possible unpleasantness of their job.”

In Brown v. State, 48 Ala.App. 304, 307, 264 So.2d 529, 531, reversed on other grounds, 288 Ala. 680, 264 So.2d 549 (1971), this Court held that the trial court’s use of the phrase “regardless of how nauseating the evidence may be” while qualifying a jury with respect to their feelings about the imposition of the death penalty did not constitute error.

Probable prejudice for any reason disqualifies a prospective juror. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961). The trial court has a duty to ascertain whether jurors called for trial are" subject to disqualification. Folkes v. State, 17 Ala.App. 119, 82 So. 567 (1919); Alabama Code (1975), Section 12-16-150. Alabama criminal trial procedure dictates that the prosecution, as well as the defense, has “the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case”. See Title 30, Section 52, Code of Alabama 1940. For these reasons, the remarks of the trial judge and the prosecutor were not error.

We have carefully examined the comments by the prosecutor in his closing argument which the defendant finds objectionable. They do . not constitute reversible error. The trial judge overruled the objections and instructed the jury, in effect, that counsel are allowed to comment upon the reasonable inferences to be drawn from the evidence. A prosecutor “may comment on proper inferences which may be drawn from the evidence and may draw conclusions from the evidence based on his own reasoning”. Andrews v. State, 359 So.2d 1172, 1178 (Ala.Cr.App.1978).

IV

The defendant was originally convicted in municipal court, fined two hundred and fifty dollars and sentenced to thirty days’ imprisonment. He appealed his conviction to the circuit court and demanded a trial by. jury. The jury found the defendant guilty and imposed the maximum fine of five hundred dollars. The circuit judge then imposed one hundred eighty days’ imprisonment as additional punishment upon the defendant. The defendant contends that the circuit judge imposed a greater sentence because he exercised his right to a trial by jury.

From the record, it is clear that the sentence the defendant received in the municipal court was immaterial and not considered by the circuit judge in imposing punishment. The evidence and figures introduced by the defendant do not support his contention. There was no unconstitutional “price” placed on the defendant’s demand for a jury trial on appeal from the municipal court. We find no violation of the letter or spirit of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See Clark v. City of Mobile, 357 So.2d 675 (Ala.Cr.App.), cert. denied, 357 So.2d 680 (Ala.1978).

At the hearing on the defendant’s motion for reduction of jail sentence, the trial judge described the film as “terrible . horrible . . . just the filthiest film I have ever seen . . . nauseating— Well, it almost made me regurgitate it was so terrible”. We have searched the record as required by law for error prejudicial to the defendant. -Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Walter W. HOWELL. In re Walter W. HOWELL v. CITY OF BIRMINGHAM.
    79-417.
    Supreme Court of Alabama.
    May 23, 1980.
   EMBRY, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and FAULKNER, JONES and ALMON, JJ., concur.


text:
    Aaron Jake PATTON v. STATE.
    6 Div. 122.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      William B. Lloyd of Lloyd, Ennis & Lloyd, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was convicted for unlawfully selling, furnishing or giving away 0.74 grams of powder containing heroin contrary to the provisions of the Alabama Uniform Controlled Substances Act. Alabama Code 1975, Section 20-2-70. Sentence was fifteen years’ imprisonment.

The State’s evidence shows that on January 13, 1978, the defendant sold the designated quantity of heroin to James R. Donald, an undercover agent for the United Narcotics Detail Operation. This was a different sale from the one for which the defendant was convicted in Patton v. State (Ala.Cr.App. Ms. February 5, 1980).

Two issues are presented on appeal. It is alleged that the jurors began their deliberations prior to receiving the court’s oral, charge and that the chain of custody of the heroin was not sufficiently established to allow its admission into evidence.

I

After both the State and the defense had rested, had finished closing argument and after the trial judge had completed his oral instructions to the jury, the following occurred:

“THE COURT: All right, now, that does complete the Court’s charge to you, ladies and gentlemen, as to the law.
“And you may, at this time, retire to the jury room to deliberate and make up your verdict.'
“Except for the alternate — if you will, you may stay with us at this point.
“A JUROR: Are we allowed to ask a question?
“THE COURT: Well, you probably won’t get any answers to them, but go ahead and ask them. I mean, the case is over with.
“ANOTHER JUROR: What happened to the blocks afterwards.
“THE COURT: What?
“A JUROR: What happened to the blocks afterwards.
“THE COURT: That is not in evidence.
“A JUROR: I would like to know why they didn’t go back into that house that night if they knew that he had that Slock of—
“THE COURT: Well, that is not a proper question.
“You’ve got everything you are going to get. Let me put it to you that way.
“THE JUROR: Thank you.
(Thereupon, the twelve principal jurors retired to the jury room at 10:58 a. m., and the following proceedings, in open court, were had and done:)
“MR. LLOYD (Defense Counsel): May it please the Court, we would, at this time, move for a mistrial on the basis of the questions, and so forth, asked by the jurors as they' were leaving open court.
“THE COURT: Overrule.”

The “blocks” had reference to the “solid shape” and “rock form” of the heroin which the undercover agent testified he saw the defendant “scraping against a strainer”.

On appeal it is argued that

“It is clear from the above proceedings that two jurors asked the same question of the trial court. It must, therefore, be presumed that the two jurors had discussed certain aspects of the case in the presence of the other jurors. Such a dialogue amounts to the jury commencing its deliberations prior to receiving the charges given by the trial court.”

Counsel’s conclusion is drawn from and based upon a faulty premise. From the record, all we can determine with any degree of certainty is that one juror repeated the question of another juror after the trial judge indicated that he did not hear or understand the question. From the record we cannot tell with any degree of certainty how many different jurors were involved.

There was no motion for a new trial and no evidence of any misconduct on the part of the jury or any of its members. A mere supposition that the jury began its deliberation before the case was formally submitted to them is not an adequate basis for a mistrial. McCall v. State, 262 Ala. 414, 416-7, 79 So.2d 51 (1955). As in Atwell v. State, 354 So.2d 30, 38 (Ala.Cr.App.1977), cert. denied, 354 So.2d 39 (Ala.1978):

“There is no evidence that the verdict of the jury was not based solely on the evidence adduced on trial and was not absolutely free from outside influences. Although several jurors may have commented on the evidence during the trial and before the actual deliberations began we fail to see that such conversations carried ‘the taint of mutual reinforcement of fixed opinions’ on the verdict. The record reflects that the guilt or innocence of the appellant was not prematurely considered.”

II

The evidence shows no break or missing link in the chain of custody of the heroin from the time it was received by the undercover agent until it was introduced in evidence at trial. The facts show the heroin to have been under the continuous and constant custody and control of a proper authority. There is no evidence of the “possibility of unauthorized access to the evidence” merely because Sergeant D. H. Boner testified that he locked the heroin in the trunk of his automobile to which only he had the key. Sexton v. State, 346 So.2d 1177, 1179-80 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977); Williford v. State, 365 So.2d 1257, 1258, cert. denied, 365 So.2d 1258 (Ala.1978).

We have searched the record for error as required by law and have found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Aaron Jake PATTON. In re Aaron Jake PATTON v. STATE of Alabama.
    79-478.
    Supreme Court of Alabama.
    May 23, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Reggie E. ROBINSON v. STATE.
    6 Div. 164.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied April 1, 1980.

      Frederick H. Heffler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty, as charged in an indictment, of buying, receiving, concealing or aiding in concealing, twelve automobile transmissions of the aggregate value of three thousand six hundred dollars, the personal property of William H. Parker, knowing that they were stolen and not having the intent to restore them to the owner. He was sentenced to imprisonment for ten years.

Appellant raises the same point that is contemporaneously raised by appellant in Wright v. State, Ala.Cr.App., 380 So.2d 398, wherein the constitutionality of the “one-for-one” striking system of Jefferson County is challenged as unconstitutional. As stated in Wright, with authorities cited, such challenge has been repeatedly and uniformly overruled and cannot be sustained.

Appellant questions the sufficiency of the evidence to sustain the verdict. We summarize enough of it to show that it is sufficient.

William H. Parker testified that when he arrived at his transmission shop, at approximately 6:40 A.M., April 6, 1979, he noticed that the back door was wide open, that fifty-six of his rebuilt automobile transmissions were missing and that each of them had a value of approximately three hundred dollars. He saw a trail of oily substance, which appeared to be transmission fluid and followed the meandering trail thereof to a scrap yard owned by Mr. Ralph Jaffe. He found twelve of the missing transmissions in the yard.

Mr. Ralph Jaffe, owner of Jaffe Iron and Metal Company, testified that on or about April 6, 1979, although he was not positive as to the exact date, defendant Reggie E. Robinson, whom he had previously known by a different name, sold him eighteen hundred pounds of scrap transmissions, that defendant was one of his regular vendors. The witness said that in his opinion defendant sold him between ten and thirteen transmissions.

Mr. Parker and Mr. Jaffe were the only witnesses in the case. Although there were some minor discrepancies in the evidence, it fully supports the finding that defendant bought, received, concealed or aided in concealing the automobile transmissions'alleged in the indictment “knowing that they were stolen and not having the intent to restore them to the owner.”

Appellant urges that prejudicial error occurred in cross-examination of the witness Parker as follows:

“Q. You testified under direct examination that you are missing 56 transmissions, is that right?
“A. That’s right.
“Q. And yet you only found twelve of them in Jaffe’s lot, is that right?
“A. That’s all that I identified. There was more there.
“Q. That’s all you identified.
“In other words, there was only twelve that you thought you could identify?
“A. Sir, that many transmissions, the way they were piled up on top of each other, I couldn’t lift all those transmissions by myself and pull them out from one another.
“MR. HEFFLER: Your Honor, I move to exclude all that.
“MR. MAHON: Your Honor, that was responsive to his question.
“THE COURT: I understood that. I overruled him. It’s in.
“Q. But you identified then only twelve of them?
“A. Yes, sir.”

Appellant says that the answer to the question, as to which defendant moved for an exclusion, was not responsive to the question. The ambiguous and somewhat argumentative question as to what the witness “thought” he “could identify” was unambiguously and clearly answered, as responsively as the question could have been answered. The court ruled correctly.

As a final contention, appellant argues alternatively that the term of imprisonment for ten years, which is the maximum sentence prescribed for the particular crime, was excessive and the case should be remanded for a lighter sentence. No authority is shown for such action, and there is none. Nevertheless, it should be noted in justice to the trial court that before it imposed the sentence, it was informed and announced in open court that “the defendant has four prior Grand Larceny convictions.”

We find no error in the record. The judgment of the trial court is due to be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Ex parte Reggie E. ROBINSON. In re Reggie E. Robinson v. State of Alabama.
    79-524.
    Supreme Court of Alabama.
    May 23, 1980.
   FAULKNER, Justice.

WRIT DENIED-NO OPINION.

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