text:
    Mildred FREEMAN v. BLUE MOUNTAIN INDUSTRIES.
    Civ. 2552.
    Court of Civil Appeals of Alabama.
    March 11, 1981.

      Wilford J. Lane, Anniston, for appellant.
    Ralph D. Porch of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Calhoun County, after an ore tenus hearing, found the employee’s claim to be barred by the statute of limitations. The employee appeals and we affirm.

The employee raises several unrelated issues and we will deal with the issues, which are dispositive, as presented.

I

The employee amended her complaint on several occasions. In the employee’s fourth amended complaint she alleged that fraud committed by the employer caused her failure to file her claim within the prescribed time. The employee demanded a jury trial on this issue.

The employee contends the trial court erred in failing to allow a jury to decide the issue of fraud. We find no merit in this contention.

Workmen’s compensation is a creature of statute. See, Slagle v. Reynolds Metals Co., Ala., 344 So.2d 1216 (1977); Boatright v. Dothan Aviation Corp., 278 Ala. 142, 176 So.2d 500 (1965). The workmen’s compensation statutes create rights, remedies, and procedures all their own. Gilmore v. Rust Engineering Co., 45 Ala.App. 626, 235 So.2d 673 (1970), cert. quashed, 289 Ala. 46, 265 So.2d 591 (1972). Our statute, § 25-5-1 et seq., Code of Ala.1975, contains no provision for a jury other than § 25-5-81(a)(2). Under § 25-5-81(a)(2), a jury trial may be had when willful misconduct on the part of the employee is set up by the employer. In the instant case there is no allegation of willful misconduct on the part of the employee. In short, the statute does not provide for a jury in this case.

In view of the above, we find that the trial court did not err in failing to allow a jury to decide the issue of fraud.

II

The employee next contends the trial court erred in allowing the employer to amend its answer to include the statute of limitations defense.

Rule 15(a), ARCP, expressly provides that amendments should be freely allowed when justice so requires. Stead v. Blue Cross-Blue Shield, 294 Ala. 3, 310 So.2d 469 (1975). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar the amendment. Bracy v. Sippial Electric Co., Inc., Ala., 379 So.2d 582 (1980).

We find nothing in the record to indicate that the employer’s amendment caused actual prejudice to the employee or that it caused undue delay. We would also note that both parties amended their pleadings; the employee doing so numerous times. We cannot say that the trial judge abused his discretion in allowing the employer to amend its answer to include the statute of limitations defense. We find no error.

Ill

The employee’s final contention is that the trial court erred in failing to find that the statute of limitations was not a defense due to the employer’s fraud. Put another way, the employee contends the employer’s fraud prevents the statute of limitations from being applicable.

In a workmen’s compensation case, if there is any legal evidence to support the trial court’s findings, those findings will not be disturbed on appeal. Barfield v. General Steel Tank Co., Ala.Civ.App., 370 So.2d 1005, writ denied, Ala., 370 So.2d 1008 (1979); 19A Ala.Digest, Workmen’s Compensation Key 1940.

The record before us consists of an agreed statement of facts submitted pursuant to Rule 10(e), ARAP.

The agreed statement reveals the following facts: The employee worked for the employer for approximately six years, from September, 1972, to June 27, 1978. This action was filed on August 8, 1979.

During the course of her employment the employee developed a skin rash which was caused by an allergic reaction to certain materials used in her work.

The employer referred the employee to several physicians for treatment of her condition. However, only one of these physicians has treated the employee since 1976. The employer paid for all medical treatments through March, 1979. Both the employee and the employer were advised that the skin condition was work related.

The physician who treated the employee since 1976, a dermatologist whose offices were located in another city, testified to the effect that he knew that the employee’s condition was permanent. He also testified that he did not advise either the employee or the employer of this fact.

The employee contends that the employer was aware of the permanent nature of her condition and that the employer concealed this fact from her and, therefore, the employer is guilty of the requisite fraud.

In order to establish fraudulent concealment for the purpose of tolling the relevant statute of limitations, the employee must prove, among other things, that the employer had knowledge of facts concerning the condition of the employee, and that the employer knew, or should have known, that the employee was ignorant of those facts. Belser v. American Cast Iron Pipe Co., Inc., Ala.Civ.App., 356 So.2d 659 (1978). Without such knowledge on the part of the employer there can be no fraudulent concealment.

The evidence regarding the above is not a paragon of clarity. There is however evidence indicating that the employer did not know of the permanent nature of the employee’s condition. Specifically, the record discloses that only the physician knew the permanent nature of the employee’s condition, and that he did not tell the employer. The record before this court is completely void of any evidence that the treating physician was a member of the medical staff of the employer or otherwise permanently associated with the employer. The only evidence regarding the relationship of the physician to the employer is the agreed fact that the employee “was referred by [the employer] to [the physician] (apparently by the company nurse).” Put another way, there is absolutely no evidence before this court indicating that the employer was aware of the alleged concealed fact, or that the relationship of the employer with the physician was such as to charge the employer with the physician’s knowledge.

Under these facts this court cannot reverse the decision of the trial court that the employer did not commit such fraud as to toll the statute of limitations. See, Sloss-Sheffield Steel & Iron Co. v. Foote, 229 Ala. 189, 155 So. 629 (1934). As indicated, this is so, at least in part, because there is evidence to support a finding that the employer did not know of the permanent nature of the employee’s condition.

We would note that what we have said should not be interpreted as stating that even if the employer had known, in this instance, of the permanent nature of the injury, the requisite fraud would have been present. We have simply attempted to answer the employee’s contention as raised on appeal.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Eddie Dean WILCOX v. STATE.
    8 Div. 336.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied May 27, 1980.
    See also, Ala.Cr.App., 395 So.2d 1057.

      John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment revoking appellant’s probation.

The judgment entry recites in pertinent part:

“On December 18, 1979, David Howard, Chief Deputy District Attorney of Laud-erdale County, Alabama, appearing for the State of Alabama in the matter of Revocation Hearing of Eddie Dean Wilcox’s charge of Grand larceny, and at this time Eddie Dean Wilcox appeared with his attorney, John McDaniel, for Revocation Hearing; and after defendant’s record was presented to the court, the court at this time revoked subject’s probation. Mr. John McDaniel, attorney for Eddie Dean Wilcox, at this time presented various motions to the court, the same being overruled; also at this time Notice of Appeal was given.
“On December 21, 1979, defendant’s motion for rehearing was granted and Revocation Hearing on probation was had [at which hearing appellant and attorneys for the parties were present]. And after the record being heard, defendant’s probation was revoked.”

A substantial part of the transcript of the proceedings at the hearing relates to some of the motions presented by counsel for Wilcox. The motions purported to present some questions as to the constitutionality of Section 15-18-8, Code of Ala. 1975 (1978 Cum.Supp.), under which, after defendant’s conviction, the court ordered that he “be confined in a prison, jail-type institution or treatment institution for a period not exceeding one year and that the execution of the remainder of the sentence be suspended and the defendant be placed on probation for such period and upon such terms as the court deems best.” It was also contended by the movant that the revocation of probation would have the effect of ex post facto legislation.

We are not favorably impressed with the constitutional questions presented, but we forego determination of them in view of the dispositive conclusion hereinafter reached.

The central theme of appellant’s contention is that his probation was revoked on the ground that he had committed a criminal offense prior to the date of the order of probation.

The hearing consisted largely of oral stipulations in open court, which doubtless were well intended to conserve time but are not conducive to clarity and certainty. We do not have before us a copy of the written charge filed by the probation officer, which apparently was the basis for the setting of the hearing for revocation of probation and the resultant hearing. We are not presented with a copy of the judgment of conviction and sentence in the case (a grand larceny case) in which defendant was granted probation for the last four years of his sentence of imprisonment for five years. We have before us a copy of the Order of Probation dated October 27,1979, signed by the trial judge, to which is appended a certificate signed by the probationer as follows:

“I hereby certify that this Order of Probation has been read and explained to me and I agree to all the conditions. This 26th day of October, 1979.”

Notwithstanding the vagueness as to the actual charge made against the probationer and all of the factors that may have entered into the rendition of the judgment revoking his probation, it presently seems unquestioned that his probation was revoked by reason of a criminal offense committed by him on June 2,1979, for which he was convicted on November 29, 1979, two days after he had begun the probationary period of his previous conviction. This is succinctly stated in the following portion of the transcript of the proceedings at the revocation hearing:

“THE COURT: All right, sir, for the record then it appears that the new offense allegedly was committed on June 2nd, 1979, but that no one in the Lauder-dale County Probation Office or the Huntsville Probation Office or myself had any notice of that new offense until the date of conviction, which was November 29th, 1979, after Mr. Wilcox had begun his probationary period on October 27th of 1979, now, is that a correct statement?
“MR. McDANIEL: Yes, sir.”

We find no authority, statutory or otherwise, for revocation of probation in the absence of conduct on the part of the probationer constituting a violation of the term or condition of probation. It follows logically, it seems to us, that there can be no violation of a term or condition of probation other than by commissive or omissive conduct during the probationary period. Although there is a dearth of authorities on the particular point, it has been determined clearly and forthrightly in Florida.

“Appellant contends that the trial court’s revocation of probation was erroneously based on conduct engaged in by appellant prior to his having been placed on probation. We agree.
“In Brill v. State, 159 Fla. 682, 32 So.2d 607 (Fla.1947), the Supreme Court speaking of conduct that would warrant revocation of probation said that the conduct contemplated by the statute as grounds for revocation was conduct occurring during the period of revocation. In Egantoff v. State, 208 So.2d 843 (Fla.App. 1968), the court said:
“ ‘It is now settled law in this State that probation may be revoked solely upon conviction by a jury of a subsequent crime, . ..O'Steen v. State, 261 So.2d 208 (Fla.App.1972).

We find no authority to the contrary. Clearly distinguishable are State v. Scott, Iowa, 300 N.W. 273 (1941), involving a vacation of a parole for a convict who was not eligible for parole and People v. Leach, 22 Cal.App.2d 525, 71 P.2d 594 (1937), involving the vacation of an order for probation for one who was not eligible for probation.

The judgment of the trial court should be reversed and the cause remanded for further proceedings in accordance herewith.

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

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte State of Alabama ex rel. Attorney General. (In re: Eddie Dean WILCOX v. STATE of Alabama).
    79-677.
    Supreme Court of Alabama.
    Jan. 9, 1981.

      Charles A. Graddick, Atty. Gen., and Charles M. Allen, II, Asst. Atty. Gen., for petitioner.
    John Mark McDaniel of McDaniel & McDaniel, Huntsville, for respondent.
   PER CURIAM.

We granted the State’s petition for cer-tiorari on grounds that this is a case of “first impression.”

Appellant Eddie Dean Wilcox pled guilty to a felony charge in Lauderdale County, Alabama, on October 9, 1978. On October 27, 1978, he was given a five-year “split” sentence: one year to be served in the Lauderdale County jail, followed by four years in the state penal institution; the four-year portion to be suspended, conditioned on his serving a probationary period of five years.

During his year-long tenure in the county jail, Wilcox attended two drug rehabilitation centers, one in Mobile and one in Gadsden. By letter, dated May 29, 1979, the trial court was notified of Wilcox’s termination from attendance at the Gadsden center, based upon his noncompliance with prescribed procedures. Thereafter, Wilcox was returned to the county jail on June 6,1979.

The order of probation in this case was signed on October 27, 1979; whereupon, Wilcox was released from the Lauderdale County jail to begin the five-year probationary portion of his sentence. Subsequent to the signing of its order of probation, the trial court, on November 30, 1979, for the first time, was informed of Defendant’s November 29, 1979, conviction of grand larceny in Madison County, Alabama. This conviction resulted from an offense allegedly committed by Defendant on June 2, 1979, during his one-year sentence in the Lauderdale County jail and at the time he was attending the Gadsden Drug Alert Center.

On December 18, 1979, the Lauderdale Circuit Court conducted a probation revocation hearing. At this hearing, based upon its newly received information, the court ordered Wilcox’s probationary status revoked. Appellant filed a motion for reconsideration; whereupon, the court conducted another hearing and again denied relief.

On May 6, 1980, the Alabama Court of Criminal Appeals reversed the action of the Lauderdale Circuit Court. We reverse and remand.

The Court of Criminal Appeals adopted Defendant’s contention that the trial court erred in revoking his probation. The premise for this assertion was that, while Defendant concededly committed a felony after his original sentence (which included a period of probation), such offense took place before any formal conditions of that parole were presented to and accepted by the Appellant.

The Court of Criminal Appeals stated the general rule applicable to probation revocation hearings as follows: “There can be no violation of a term or condition of probation other than by commissive or om-issive conduct during the probationary period.” We adopt the general rule and expand it to include the proviso that probation may be revoked solely upon conviction of a subsequent crime, provided the subsequent conviction is valid. See O'Steen v. State, 261 So.2d 208 (Fla.App.1972).

While aligning ourselves with the Court of Criminal Appeals in affirming the general rule applicable to probation revocation cases, we hold that the facts of the instant case fall outside its ambit of operation. Here, Appellant was given a five-year sentence—one year to be served in the county jail, with the remaining four years to be discharged by a five-year probationary term. Although the conditions of his probation were not explicitly set forth until the conclusion of the one-year county jail term, and at a time subsequent to his commission of the Madison County offense, he was already under a sentence which he clearly understood as including a five-year probationary period.

Defendant’s indictment for a felony allegedly committed between the date of his original sentencing and the effective date of the probationary portion of that sentence—a fact known to Defendant but not to the sentencing court at the time of the hearing setting the conditions of Defendant’s probation—cannot inure to the benefit of Defendant by invoking application of the above-referenced general rule. Furthermore, Defendant knew at the probationary hearing that his Madison County felony offense was scheduled for trial immediately thereafter—a fact (along with the fact of his earlier indictment) which he concealed from the sentencing trial court. It remains clear that Defendant was charged with a felony while serving a sentence which included a term of probation, and that he was later convicted of that charge prior to the court’s order of revocation.

We hold, therefore, that where, as here, Defendant commits a felony while under a probationary sentence, although prior to the effective date of the probationary portion of the sentence, and its terms and conditions are not yet expressly prescribed, the sentencing court is nevertheless authorized to revoke Defendant’s probation for violation of a condition implicit in every suspended or probationary sentence: that Defendant, while under such sentence, will not commit another criminal offense. In other words, the trial court did not err in finding that Defendant violated an implied condition of his probation when he committed the offense of grand larceny in Madison County.

In Dill v. Page, Okla.Cr., 496 P.2d 127 (1972), petitioner was convicted of burglary, with punishment being fixed at a five-year suspended sentence. Thereafter, petitioner was convicted of a separate felony. Ten days later, petitioner’s suspended sentence for his initial conviction was revoked. Petitioner charged that the revocation, based on a finding that “defendant has violated the terms of his suspended sentence,” was improper, reasoning that no express terms or conditions of the five-year suspended sentence had ever been given petitioner by the court. We adopt the reasoning of the Dill court, quoting from one of its earlier opinions:

“[I]n Brooks v. State, Okl.Cr., 484 P.2d 1333, 1334 (1971) it was held that ‘a condition of a suspended sentence that a person may not commit a felony is so basic and fundamental that any reasonable person would be aware of such condition.’ ”

REVERSED AND REMANDED.

All the Justices concur.


text:
    Eddie Dean WILCOX v. STATE.
    8 Div. 336.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
   PER CURIAM.

AFFIRMED ON MANDATE OF THE SUPREME COURT OF ALABAMA. NO OPINION, 395 So.2d 1054.

All the Judges concur.


text:
    Edward R. McCRAY v. STATE.
    5 Div. 487.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Jan. 20, 1981.

      J. Michael Williams, Sr. and Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial on an indictment charging the defendant with murder in the first degree of John Otis Menifee, a jury found appellant guilty of murder in the second degree and fixed his punishment at imprisonment for 99 years. The court sentenced him accordingly.

Appellant asserts as the first issue presented by him on appeal, “Whether the Trial Court committed reversible error in denying the Defendant’s Plea in Abatement, Motion to Quash the Venire, and Motion for a New Trial, based on systematic exclusion of minorities from the Grand Jury and Petit Jury selection.” A lengthy hearing thereon was conducted by the trial court, at which eight witnesses testified. There was considerable factual testimony that the selection of jurors for the jury rolls of Lee County was conducted without regard to race, notwithstanding defendant’s contention throughout the hearing that there was a systematic exclusion of Negroes. There was no factual testimony by any witness in support of his contention. Defendant’s entire contentions seem to stem largely from the proven fact that the grand jury of eighteen persons that returned the indictment against defendant, as well as others indicted during one of the grand jury sessions in 1977, consisted of only two Negroes. Throughout the hearing there was an obvious fusion of the contention that there was a systematic exclusion of blacks with the contention that there was an undue disparity in the smaller percentage of blacks on the jury rolls and on some venires of grand juries when compared to a larger percentage of adult blacks living in Lee County. A continuation of the mingling of the two contentions is demonstrated by the first paragraph of appellant’s argument as to issue one:

“The defendant proved to the Court that not only was there a disproportionment (sic) number of minorities (Blacks) on the specific Grand Jury which brought the indictment (T. 48, 49, 51, 52), but also there was a pattern over the years of such systemic [systematic] exclusion (T. 76). In the examination of the Grand Jury Foreman, he stated there was ‘possibly a third’ of the venire from which the Grand Jury was selected who were members of the minority race (Blacks) (T. 48, 51). Yet, Dr. Robinson testified further that only two of eighteen members of the Grand Jury were of the same minority.” “Further, it was shown that the make-up of the county population is such that Black minority constitutes 27.8 percent of the total (T. 7). The aforementioned facts, that of the Black population of the county being 27.8 percent and that of the make-up of the Grand Jury being 2 of 18 or 11 percent, in and of themselves, constitute a prima facie case of purposeful discrimination Black v. Curb, 464 F.2d 165 (5th Cir. 1974). In such a showing, the burden of explaining the disparity shifts to the state. Black v. Curb, supra. ‘The state must explain the disparity or establish that the excluded persons are not qualified.’ Black v. Curb, 422 F.2d 656 (5th Cir. 1970)....”

Black v. Curb, supra, does not hold that the difference between the percentage of the “Black population of the county” and the “make-up of the Grand Jury” constitutes a “prima facie case of purposeful discrimination.” The quoted statement of Black v. Curb is referable to the gross disparity between a smaller ratio of the number of blacks, eligible as to age for jury service, when compared with the ratio of such blacks to all people living in the county at the time eligible as to age for jury service. The particular contention of appellant is not supported either by Black v. Curb, supra, or any other case he has cited. It is refuted, by analogy at least, by Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the only difference being that in Swain the contrast was between the proportionate representation on a specific petit jury venire and representation in the population instead of, as here, between the representation on a particular grand jury and representation in the total population.

The reason stated is applicable to and is dispositive of appellant’s contention that the “venire from which the defense had to select the trial (petit) jury consisted of 17 percent Black minority (T. 149) and as such as continuing proof that the said systematic exclusion of the Black minority continues unto the present day.” Another contention that a “further example of the continuing systematic exclusion of the Black minorities is shown by the blatant and invidious act of the District Attorney in that the first five strikes made by the State were to exclude all remaining blacks from the venire is fully answered thus:

“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 reason for the exercise of his challenges in any given case.... ” Swain v. Alabama, 380 U.S. 202, 221, 85 S.Ct. 824, 836, 13 L.Ed.2d 759, 773.

In his effort to prove that there had been a systematic exclusion of minority jurors from the jury roll, defendant introduced the testimony of some witnesses familiar with the process of supplying the jury roll with the names of qualified jurors during a part of all of the years 1976,1977,1978, and 1979 (the year in which defendant was tried). None supported appellant’s contention. All of the factual testimony on the point was to the effect that no person was excluded solely on the basis of race or sex. The trial court was not in error in ruling against appellant as to any contention that there was a systematic exclusion of minorities from the roll of jurors from which grand juries and petit juries were obtained, that there was no selection from the jury rolls or box in the drawing therefrom of the names or cards of persons to serve on either grand juries or petit juries, and that the names of persons to be placed on the jury rolls were obtained largely from voters’ lists, drivers’ license lists, church rolls, civic club rolls and telephone directories without regard to race. The trial court was not in error in ruling against defendant on the subject.

Code of Alabama 1975, § 12-16-171 provides for an oath to be administered to the foreman of a grand jury. In moving to quash the indictment on the ground that an oath was not given to the foreman of the grand jury that returned the indictment against defendant, defendant called on the District Attorney as a witness. He said:

“Your Honor, Mr. Jones and Mr. Williams, I have been District Attorney since October of ’73 and I am able to testify with reasonable certainty as to what took place during the empanelling of the Grand Jury in the Fall of 1977, because the procedure for this has been exactly the same since the Fall of 1973, and exactly the same as it is today.
“Once the Grand Jury is selected, the Foreman is administered an oath by the Court separately. The Grand Jury as a whole is administered an oath by the Court; and it was done in the Fall of 1977.”

The contention of appellant that the foreman of the grand jury was not administered the oath prescribed is not supported by the transcript.

Code of Alabama 1975, § 12-16-190, which has been statutory law of Alabama since Code 1923, § 8665, provides that in “all counties having over 50,000 population, there should be empanelled not less than four grand juries in every year.” Appellant complains that no more than three grand juries were empanelled for the year in which the indictment against defendant was returned. Appellant makes an effort to show that this allegedly “flagrant violation of statutory law ... demonstrates a continued and systematic exclusion of the right of minorities and blacks from participating in the judicial process.” We do not agree, and the cited case of Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779, cert. denied, 292 Ala. 506, 296 So.2d 784 (1974) is not on the subject and is inappo-site.

Another contention of appellant is that the trial court “committed reversible error in denying the defendant’s plea in abatement due to the Lee County Sheriff’s office violating Section 12-16-89, Code of Alabama, 1975,” which provides:

“If the sheriff or any deputy shall negligently fail to summon any person to serve as a juror when he is commanded to summon, he shall be held and deemed guilty of a contempt of court and shall be fined not more than $100.00 in every case where the person did not serve, and. he may also be imprisoned in the county jail for not more than five days.
“The return of any such person as ‘not found’ shall be prima facie evidence of negligence on the part of the sheriff or deputy making the return, and he shall be punished by the court unless the court is reasonably satisfied from evidence produced that he was not negligent.”

Appellant argues that a document introduced in evidence on the hearing of the plea in abatement “indicates” that “for the week of September 17, 1977 [the week for which jurors were summoned from whom the grand jury indicting defendant was obtained] that 42 of 130 were ‘not found’ or a total of 32 percent of the jurors summoned.” The evidence shows that jurors were summoned by mail and that the envelopes contained the legend, “Do not forward out of Lee County.” No complaint is made to the effect that use of the mails should not have been made in the process of summoning jurors. The cited statutory law has been in every Code of Alabama since 1909 as a part of Acts 1909, No. 227. Another part of said Act, now Code 1975, § 12-16-81, provides:

“If the sheriff fails to summon any jurors drawn or any person summoned fails or refuses to attend the trial or there is any mistake in the name of any person drawn or summoned, none nor all of these grounds shall be sufficient to quash the venire or continue the case.”

Appellant argues in his brief:

“It is felt by the defendant that a great percentage, of the not founds, a higher percentage than that of the racial percentage of the county, is black and therefore partially accounting for the low percentage of blacks in the jury venire and on the Grand Jury.”

Appellant had an opportunity to prove, if he could, what the defendant “felt” as just stated, if what he “felt” were correct, but he did not do so. Any charge, express or implied, that there was a discrimination against blacks by the United States Postal Service or by the employment by any entity of the services of the United States Postal Service should not be judicially accepted as self-proving. The “prima facie evidence” provision of Code 1975, § 12-16-89 is referable, as the context shows, to a possible contempt proceeding against the sheriff, or any one or more of his deputies, when cited for contempt for negligent failure to summon any one or more jurors.

There was an absence of any substantial evidence to the effect that defendant could not obtain “a fair and impartial trial” in Lee County, which is the criterion for the grant of the motion for change of venue, which the trial court denied. Code of Alabama 1975, § 15-2-20. It was shown that there was substantial publicity as to the alleged crime soon after it occurred. The existence of widespread publicity does not in and of itself indicate that a defendant cannot obtain a fair trial. Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971); Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975); Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Jenkins v. State, Ala.Cr.App., 339 So.2d 133, cert. de nied, 339 So.2d 137 (1976); Turk v. State, Ala.Cr.App., 348 So.2d 878 (1977); McLaren v. State, Ala.Cr.App., 353 So.2d 24, cert. denied, 353 So.2d 35 (1977). The burden is upon the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot reasonably be expected in order for him to obtain a change of venue. Peoples v. State, Ala.Cr.App., 338 So.2d 515 (1976); Witherspoon v. State, Ala.Cr.App., 356 So.2d 743 (1978).

Appellant’s final contention is that the trial court “committed reversible error in refusing to give three requested charges” which are:

“1. Burden on the defendant as to self-defense is to offer only such evidence as will generate reasonable doubt.
“2. The State has the burden of proving beyond a reasonable doubt that the defendant was not free from fault in bringing the difficulty which led to the fatal wounding of the decedent where the defendant claimed that the shooting was necessary in his own defense.
“3. The only burden resting on the defendant under a plea of self-defense is to offer such evidence as will, when considered with the whole evidence, generate in the minds of the jury a reasonable doubt of guilt.”

The substance of both charge 1 and charge 2 is covered by the following portion of the court’s oral charge:

“In reference to the plea of self-defense ... the burden of proof is never on the defendant to establish his innocence or to disprove the facts necessary to establish the crime for which he is charged. If the evidence, any and all of it, after considering it all, raises in the mind of the jury a reasonable doubt as to the defendant’s guilty [sic], he should be acquitted.”

In its oral charge the court comprehensively instructed the jury as to the burden upon the State to prove defendant’s guilt by the evidence beyond a reasonable doubt and upon the essential elements of a defense of self-defense. The principle stated in defendant’s charge 2 was substantially covered by the court’s oral charge, including particularly the following:

“And if a person acts under such conditions and circumstances as I have set out, the burden of satisfying the jury beyond a reasonable doubt from the evidence, that he was not free from fault in bringing on the difficulty is on the State and if not shown, then the jury should acquit him.”

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Edward R. McCRAY. (Re Edward R. McCray v. State of Alabama).
    80-300.
    Supreme Court of Alabama.
    March 26, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Thomas Glenn HARRIS v. STATE.
    8 Div. 376.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Jan. 20, 1981
    W. H. Rogers, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of murder in the first degree of Flora Dean Polk by shooting her with a shotgun and fixed his punishment at imprisonment for life. He was sentenced accordingly.

Appellant’s first assertion of error is to the effect that the court erred in denying defendant’s motion for a new trial for the reason that at the time the alleged crime was committed there was no crime of murder in the first degree in Alabama, that such crime had been abolished and repealed by Act No. 607, Acts of 1977, which has become the Criminal Code of Alabama, Title 13A, Code of Alabama 1975. It is correct that Acts 1977, No. 607, did purport to provide that upon the effective date of that Act, any crime that theretofore constituted murder in the first degree, as well as some other designated and defined unlawful homicides, constitutes murder and is punishable “by imprisonment in the penitentiary for not less than 10 years to life.” The particular cited Act also provided that its effective date was May 17,1978. However, by Acts 1978, No. 770, p. 1110, § 1, the effective date was changed to June 1,1979, and by Acts 1979 No. 79-125, the effective date was again changed to January 1,1980.

The undisputed evidence shows that the alleged crime was committed in October 1979, at which time the present Criminal Code had not gone into effect. Defendant was properly indicted and tried for murder in the first degree, as well as any lesser included offense, pursuant to the previously existing statutory law as contained in Code of Alabama 1940 (Recompiled 1958) § 314. Appellant’s contention in this respect cannot be sustained.

The evidence is entirely circumstantial as to the commission of the alleged crime and defendant’s participation therein, but it is substantial and strong as to both. There is no contention that it is not sufficient to justify submission to the jury of the issue as to defendant’s guilt, except in one particular as to an alleged variance to be discussed hereafter, and except as it is found in appellant’s argument that the evidence can be reasonably reconciled with the theory that some other person or persons may have committed the crime and for that reason the evidence was not sufficient. Such contention will also be discussed hereafter. No useful purpose would be served by a lengthy narration of the evidence. A meager summary is sufficient.

The alleged victim was the mother of defendant’s wife. The victim was killed on the night of October 27-28, 1979. Defendant’s wife was in Oklahoma at the time. There had been extremely hard feelings between them. Living with the victim in Moulton, Alabama, were four children of defendant’s wife. Defendant had no children. Before midnight October 27-28, 1979, defendant and Lewis Goode came to the house where the victim and the four children were living and entered the house. There was testimony by witnesses for the State to the effect that defendant had a shotgun with him and demanded to know where his wife was and that the victim told him that she did not know. He searched the house and did not find his wife. One of the witnesses testified:

“A. And they took her [the alleged victim] outside in the middle of the road, and she was screaming and hollering. And she said, ‘Thomas, please don’t shoot me.’ and—
“Q. Well, had Thomas said he was going to shoot her?
“A. He had the gun pointed at her.
“Q. Thomas had the gun pointed at your grandmother?
“A. Yeah.”

According to further testimony of the witness, the wife of Lewis Goode was sitting in an automobile parked near the house at the time. After defendant and Goode had taken his grandmother out of the house, they came back in and the following occurred:

“A. He said, T am going to count to three, and if you don’t tell me where she is at, I am going to shoot you.’ and he got to two and she — my grandmamma said that she was down at Willie Pearle’s.
“Q. Who was he asking about, who was?
“A. Thomas was asking where Jessie Pearle was.
“Q. You said Thomas was holding the gun; how was he holding it?
“A. He was point it at her.
“Q. He had the gun pointed at your grandmother?
“A. Yes.—
“Q. You said that after that they left, that is, your grandmother and Thomas and Lewis—
“A. And Lewis.
“Q. And then what happened?
“A. And we told Emmitt and he went and told Wamon and and then they called the police, and that is all.”

Law enforcement authorities were notified promptly. The body of the victim was found about 5:30 A.M. on October 28, on a side road near some trees. A forensic pathologist testified that her death was caused by shotgun wounds. The previously mentioned shotgun was found about 7:00 A.M. lying in a ditch. There was expert testimony that the shots that killed the victim were fired from the mentioned gun. Defendant, testifying in his own behalf, denied killing the victim. He admitted that he had been on a spree looking for his wife, that he had been drinking a great deal of beer and that he had been with Lewis Goode and his wife a large part of the first half of the night of October 27-28, 1979.

Appellant’s second assertion of error is directed to the action of the court in overruling defendant’s objection to questions asked Attorney Jimmy Speake, a witness called by the State, as to what the alleged victim stated to the witness on two occasions about two weeks prior to her death, as shown by the following part of the transcript:

“Q. Did you have a conversation with them [the victim and defendant’s wife] on that date?
“A. Yes, sir.
“Q. And did you have another conversation with Mrs. Polk later, two or three or four days later?
“A. Yes, sir, the following Monday on the 15th.
“Q. Okay. Now, referring to the conversation on the 13th, did Mrs. Polk relate to you any information concerning herself and her son-in-law, Thomas Harris?
“A. She was in my office—
“MR. ROGERS: Judge, we are going to object to this line of testimony as being remote and immaterial and irrelevant, and the comments and transactions as took place out of the presence of the Defendant.
“THE COURT: Well, I take it that you are offering this to show prior difficulties between—
“MR. LITTRELL: Prior difficulties and motive.
“THE COURT: All right, overruled.
“MR. ROGERS: We take exception.
“BY MR. LITTRELL:
“Q. With reference to the conversation on October 13th with Mrs. Polk, and I believe her daughter was also present, what, if any information, was related to you concerning Mrs. Polk in her relation with her son-in-law by Mrs. Polk?
“MR. ROGERS: Judge, I object on the basis that it’s hearsay, and the statements are all outside the presence of the defendant.
“THE COURT: All right, you can confine it. You will have to phrase your question different, not with reference to details, but just what the transaction was.
“MR. LITTRELL: All right.
“BY MR. LITTRELL:
“Q. Mr. Speake, did Mrs. Polk relate to you any information concerning a threat by her son-in-law, Harris, to herself?
“A. Yes, sir.
“Q. Would you tell us what it was?
“MR. ROGERS: We object, Your Honor.
“THE COURT: Sustained. You can’t go into the details.
“MR. LITTRELL: Judge, may we approach the bench just a minute.
“THE COURT: Yes.
“(WHEREUPON MR. LITTRELL AND MR. ROGERS APPROACHED THE BENCH AND AN OFF-THE-RECORD DISCUSSION WAS HAD AFTER WHICH THE FOLLOWING OCCURRED)
“BY MR. LITTRELL:
“Q. What was the nature of the threat, Mr. Speake?
“MR. ROGERS: Judge, we object on the basis of being hearsay, statements made outside the presence of the Defendant, and that it’s inflammatory and prejudicial.
“THE COURT: Overruled.
“MR. ROGERS: We take exceptions.
“A. Mr. Littrell, I do not specifically and independently recall the nature of the threat conveyed to me by Dean Polk on the 13th.
“Q. Okay. Then let’s go to the 15th, the conversation that you had with her; was her daughter present then?
“A. No, sir.
“MR. ROGERS: Judge, we at this time move to exclude all of the statements and questions by the District Attorney made on the 13th of October to Mr. Speake.
“MR. LITTRELL: Judge, I believe his answer was that he remembered that she had communicated to him information concerning threats by her son-in-law.
“THE COURT: Overruled.
“MR. ROGERS: We take exception.
“Q. Go to the 15th, please sir.
“A. All right, sir. On the morning of the 15th she came into my office alone. Her daughter was not—
“MR. ROGERS: Judge, we are going to object on the same basis, as hearsay, and statements made outside the presence of the Defendant, that it’s inflammatory and prejudicial, and it’s remote and irrelevant.
“THE COURT: All right. Overrule. You can just state the nature of what was said.
“MR. ROGERS: We take exception.
“A. She asked me to give her information or assistance where she could obtain immediate protection. In the context of the conversation on the 13th she said in substance, as I recall, that ‘he will kill us.’
“Q. To whom was she referring?
“A. To that Defendant.
“Q. All right.
“MR. LITTRELL: That’s all. Thank you.
“MR. ROGERS: I don’t have any questions Judge.”

Thereupon the witness was excused.

“Statements and declarations of a deceased are not competent evidence for or against an accused in a murder prosecution unless made in his presence, or unless they are admitted in evidence as part of the res gestae or constitute dying declarations. Kitchens v. State, 251 Ala. 344, 346, 37 So.2d 428 (1948); Holland v. State, 162 Ala. 5, 11, 50 So. 215 (1909); Hill v. State, 339 So.2d 1077, 1080 (Ala.Cr. App.), cert. denied, 339 So.2d 1082 (1976). See also Reaves v. State, 158 Ala. 5, 48 So. 373 (1909); Lakey v. State, 18 Ala. App. 442, 93 So. 51 (1922).” Hargrove v. State, Ala.Cr.App., 368 So.2d 335, 337 (1979).

The statements made by the deceased, as related by Mr. Speake, do not come within the scope of dying declarations or res ges-tae. They should not have been admitted in evidence. They were of an extraordinarily injurious nature. The court should not have permitted them to be introduced in evidence. The action of the trial court in this respect necessitates a reversal.

Appellant’s third insistence on a reversal is as to an admission in evidence, over the objection of defendant, of communications between defendant and his wife occurring about a week or two before the alleged crime. Many pages of the transcript are devoted to testimony of defendant’s wife as to physical violence exerted against her and as to his threats against her and the alleged victim of the homicide. Defendant’s objection was three-pronged. One prong was that the evidence was “too remote and abstract,” another that it involved a separate offense, and the third that it constituted “a privileged communication or transaction between husband and wife.” The court overruled defendant’s objection and gave him “a continuing objection to this line of questioning.” We think that grounds one and two of the objection are without merit. We also think that much of the particular testimony did not reveal confidential communications between spouses. However, we do not dismiss as unworthy of consideration any contention that it did in some, though not all, of the instances in which the witness said that defendant had directly or indirectly made a threat of violence against the mother of the witness. Even so, in the absence of any attempt by appellant to segregate the small amount of the testimony as to which it can be reasonably said that it constituted confidential communication between spouses from the large amount of testimony as to what defendant said to his wife that obviously was not intended as a confidential communication to her, we will not endeavor to do so.

“In determining whether the privilege is applicable in a given case, the proper inquiry is whether the communicating spouse intended the communication or act to be confidential. The privilege does not cover a communication or transaction between husband and wife which manifestly was not confidential or which must have been intended to be made public.” Gamble, McElroy’s Alabama Evidence § 103.01(4) (1977).

It could be claimed with some reason by appellant that by giving the defendant a continuing objection to questions asked the witness as to previous communications to her by her husband, defendant should not have been required to bring to the attention of the court a particular communication that would have constituted a confidential one. On the other hand, it could be said by the trial court that the continuing objection given defendant did not necessarily excuse the defendant from making a particular objection to some particular communication materially different from the norm in the statements by the defendant to his wife. In view of the necessity for a reversal on the ground stated above, we leave the third issue presented by appellant without any detailed consideration thereof, which would be necessary for a definite and correct determination thereof, but suggest that, if there is another trial, it be understood by all concerned that generally threats made by defendant against his wife would not constitute confidential communication between spouses but that, conceivably at least, statements that he made to his wife about his mother-in-law could constitute confidential communications.

Appellant’s fourth assertion of error is to the effect that the State failed to prove a prima facie case for the reasons stated by his attorney as follows:

“All they have shown is that he had an opportunity to have shot and killed Dean Polk, but they don’t have strong enough evidence to go to the jury, and I cite to you the case of Lang versus State, where they are talking about circumstantial evidence. And in that case, the Court held that the humane provisions of the Law, or a person charged with a felony, should not be convicted on circumstantial evidence unless it shows by full measure of the proof that the Defendant is guilty. Such proof is always insufficient unless it excludes to a moral certainty every other reasonable hypothesis but that of guilt of the accused. That is, the burden is on the State to show that Thomas Harris and he alone killed Dean Polk, and to exclude that any other person could have killed her...”

In his brief, appellant continues to rely upon Lang v. State, 252 Ala. 640, 42 So.2d 512 (1949) and also upon Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967) and Johnson v. State, 287 Ala. 576, 253 So.2d 344 (1971).

In none of the cases relied upon by appellant was there any evidence tending to show that a person or persons other than the defendant was acting in concert with the defendant as a correlate to the principal-aider and abettor relationship. As to the instant case, appellant says in his brief:

“The evidence shows that the defendant could have committed the murder but Pearle Mae and Lewis Goode or some other person could have committed the act.”

The statement is correct. However, in such a situation, the principle set forth and relied upon by appellant in the cases cited by him does not apply. That principle had its genesis in Alabama in Ex parte Acree, 63 Ala. 234 (1879), in which Justice Stone said:

“No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires.”

In Pitman v. State, 148 Ala. 612, 42 So. 993 (1906), the court made it clear that the principle stated in Aeree had a limited field of application, that it should not be applied in a case in which there was evidence that a person or persons in addition to defendant were accomplices to the crime. In Pitman, supra, Mr. Justice Simpson noted that there had been a conflict of opinion on the subject, which was attributable to the failure to distinguish between cases in which the principle was applicable and those in which it was not applicable. The question has generally arisen in connection with the refusal of the trial court to give a written charge requested by defendant setting forth the proposition stated in Ex parte Acree as quoted above. In Pitman, at 148 Ala. 618, 42 So. 993, it is stated:

“In view of this conflict of opinion in our own decisions, we remark, first, that such a charge is not proper at all, except in those cases where there is evidence pointing to one or more persons other than the defendant; second, it is not proper if the nature of the offense is such that both may have been guilty; third, if allowed at all, a ‘theory’ hypothesized should be a reasonable theory. Coming to the case now before the court, it will be readily seen that the charge would be improper, because it does not negative the guilt of the defendant. The nature of the offense is such that two men might commit it, at different times, so that it might be, not only probable, but true, that some other person may have committed the same offense and yet the defendant have been guilty also.”

The fact that the evidence as a whole in a case against a single defendant is reasonably reconcilable with the theory that someone other than defendant committed the crime does not in and of itself serve to create a reasonable doubt as to defendant’s guilt in a case in which there is some substantial evidence that a person other than defendant was acting in concert with him in the commission of the crime. Scruggs v. State, Ala.Cr.App., 380 So.2d 308 (1979).

Appellant’s only other insistence on reversal is to the effect that the evidence does not show that the crime was committed in Lawrence County.

The evidence is almost conclusive to the effect that the victim was killed between about 1:00 A.M. and 2:00 A.M., October 28, and that the victim’s body was found within less than a mile from the home of Lewis Goode and his wife at Wheeler, in Lawrence County. The evidence also shows that appellant and the Goodes spent most of the preceding six hours either at the home of the Goodes or the home of the victim in Moulton, the county seat of Lawrence County, about twenty miles from Wheeler. At one time, they headed in an automobile toward Muscle Shoals in Colbert County, where appellant’s mother lived, and at another time toward Russellville in Franklin County, but turned before reaching either place and apparently did not get out of Lawrence County. In the entire testimony there is no reference to the adjoining county of Morgan or the adjoining county of Limestone, which apparently were the nearest counties to any of the places where the three had been or where the victim had been during the six hours prior to her death, but the distance by road to Limestone would have been much greater than the airline distance, by reason of the intervening Tennessee River. Officers of the Sheriff’s Office of Lawrence County, officers of the Police Department of Moulton, and of the Police Department of Hillsboro, in Lawrence County, participated in the investigation soon after the death of the victim. One of the larger diagrams of the area, which purports to cover all of the places of significance, was identified by the evidence as covering an area in Lawrence County. That the crime was committed in a county other than Lawrence is a bare possibility; that it was committed in Lawrence County is shown by the circumstantial evidence with reasonable certainty. Although the exact spot where the victim was killed is not shown by direct evidence, the jury could properly conclude from the circumstantial evidence that she was killed in Lawrence County. Allen v. State, Ala.Cr. App., 374 So.2d 447 (1979); Grace v. State, Ala.Cr.App., 369 So.2d 318 (1979); Cumbo v. State, Ala.Cr.App., 368 So.2d 871, cert. denied, Ala., 368 So.2d 877 (1978).

For the error indicated, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General (Re Thomas Glenn HARRIS v. STATE of Alabama).
    80-293.
    Supreme Court of Alabama.
    March 26, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Reginald Bernard TINSLEY v. STATE.
    1 Div. 113.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      D. E. Brutkiewicz, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial under a two-count indictment charging appellant with murder in the first degree of Warren Green by allegedly shooting him with a pistol in one count and with a gun in the other count, a jury found him guilty of murder in the second degree and fixed his punishment at imprisonment for twenty-five years. He was sentenced accordingly.

There was abundant evidence of the corpus delicti of the crime charged, which included testimony that about 11:45 A.M. on December 1, 1977, Mr. Green and his wife were found in a store they operated in Mount Vernon tied back to back with an extension cord. Both had been shot in the head and were lying in or near a pool of blood. They were both alive at the time they were found, but Mr. Green soon died before being removed from the store. Mrs. Green was sent to a hospital. The spent bullet of a .38 pistol was found near them on the floor, and one bullet was found in Mr. Green’s brain. He had been badly beaten. A robbery had unquestionably occurred. A toxicologist testified that Mr. Green’s death was caused by gunshot to his head.

Deputy Sheriff Ronald Emrich testified that he arrested defendant on July 28,1978, in the Hogan Park area of Prichard, Alabama, after he had seen him “break and run” as he approached with another officer in a police automobile. Officer Emrich identified him before he ran, as a suspect in the case.

The evidence connecting defendant with the alleged crime consisted partly of an incriminating statement made by him to officers while he was in jail on September 14, 1978. In his statement, defendant said, inter alia, that he, Freddie Lee Wright, Percy Craig and Roger McQueen had gone to the store in Craig’s automobile and were at or in the store when the robbery and killing occurred; two shots were fired, both by Wright; all four left together in the same automobile, went to the house of a sister of Craig and divided the loot; defendant’s part was about “$300.00.” A correct resolution of two of appellant’s contentions for a reversal turns on whether defendant’s incriminating statement was admissible in evidence over defendant’s objection.

Appellant’s insistence that the incriminating statement of defendant was not properly admitted in evidence is based on the contention, as it was on the trial, that at the time he made the statement he had an attorney but that the attorney was not present when the statement was made and defendant was thereby deprived of his right “to have the assistance of counsel for his defense,” guaranteed to him by the Sixth Amendment to the Constitution of the United States, as held in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and subsequent cases. Appellant does not ground his contention to any extent upon any claim of a violation of his Fifth Amendment rights. He does not contend that his statement was not voluntary or that it was made inadmissible by reason of the presence or the absence of antecedent or concurrent conditions that would vitiate the statement in accordance with principles set forth or foreshadowed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The evidence is not as clear, convincing and undisputed as we would like for it to be as to whether defendant had an attorney at the time of the statement. Some of the uncertainty and confusion on the question is probably because of the fact that when the trial occurred and when the testimony was taken on the question of the admissibility of the statement, two indictments had been returned against defendant for the unlawful killing of Mr. Green, one indictment on September 14, 1978, and the other on April 20, 1979. The first indictment charged an offense under the Death Penalty and Life Imprisonment Without Parole Chapter of Code of Alabama 1975, § 13-11-2, which was nol prossed on July 13, 1979. The transcript of the proceedings and the “Case Action Summary” of the record show that he was arraigned, entered a plea of not guilty, and was represented by Attorney Chris Galanos on September 22, 1978. The “Bench Notes” of the Case Action Summary show also that on October 2, 1978, “Mr. Donald Brutkiewicz states he does not represent the defendant. Case re-set for October 27, for an attorney,” and that a notice of appearance was filed by Attorney Donald Brutkiewicz on October 16,1978. Other entries in the Bench Notes indicate inconsistencies therewith, that defendant was represented by Attorney Galanos, and the only entry during 1978 indicating that he was represented by Mr. Brutkiewicz is the one stating that a notice of appearance was entered by said attorney on October 16, 1978. There are four entries therein in 1979, three of them showing that he was represented by Attorney Brutkiewicz. The fourth entry is on May 28,1979, and merely states, “Case passed — Defendant has escaped.” The last entry is on July 13, 1979, and states, “On motion of District Attorney, Chris Galanos; It is ordered and adjudged by the court that this case be and the same is hereby Nolle Prossed — defendant’s attorney, Donald Brutkiewicz, in court.” It should be stated that Mr. Galanos had not become a district attorney at any of the times the record indicates he was representing the defendant.

Defendant was arraigned in the instant case, the case under the second indictment, on July 13, 1979, on which date and thereafter the record shows clearly that he was represented by Mr. Brutkiewicz. His trial was commenced on November 26, 1979, with Mr. Galanos, then District Attorney appearing as counsel for the State, and Mr. Brutkiewicz, Sr., and Mr. Brutkiewicz, Jr., appearing for defendant. Before any action whatever was taken, it was made clear by colloquy among the court, District Attorney Galanos and Attorney Brutkiewicz, Senior, that, although Mr. Galanos had appeared in the early stages of the other case as appointed attorney for defendant and had filed some motions and a demurrer therein, he had “never had any face to face contact or any contact, direct or indirect, with Mr. Tinsley other than seeing him in the courtroom at the time he was arraigned.” Mr. Galanos asked if there was any objection to his “representing the State as a prosecutor in this State.” It was then made clear by Mr. Brutkiewicz and the defendant that neither had any such objection.

It developed, during the proceeding out of the presence of the jury as to the question of the admissibility of defendant’s incriminating statement, that there had been a preliminary hearing on the first case and that Mr. Brutkiewicz appeared for defendant as his attorney at that hearing. The officer who testified for the State as to the incriminating statement and as to the predicate therefor to meet the constitutional requirements as to voluntariness, instructions and warnings as to his constitutional rights, particularly his right not to be caused to incriminate himself and his right to an attorney at the expense of the prosecution, testified that he knew that Mr. Brutkiewicz represented defendant on the preliminary hearing. However, it appears that the officer did not understand that Mr. Brutkiewicz was representing him at the time the incriminating statement was given. He said that he had no recollection of any conversation with or about Mr. Brut-kiewicz in connection with his taking the statement of defendant. A part of his testimony was as follows:

“Q. And reflecting your recollection of events, do you remember calling my office and calling to my secretary?
“A. I remember calling your office, trying to get in touch with you and telling you what your client had done or something to that effect, let you know what had happened.
“Q. My name came up?
“A. No, sir. I knew you from the preliminary hearing, Mr. Brutkiewicz. I don’t know who represented him at this time.
“Q. You don’t know but this defendant told you that I represented him, did he not?
“A. No, sir, he didn’t know who represented him. He didn’t know if he had a lawyer at the time.
“Q. You don’t know positively that he told you that before any statements are made that Brutkiewicz must be present?
“A. No, sir, he did not say that. Matter of fact, he said he did not want an attorney.”

Before the trial court finally ruled on the question of the admissibility of the incriminating statement, the defendant and Mr. Brutkiewicz testified out of the presence of the jury. Defendant testified to the effect that one or both of the officers to whom his statement was given threatened him by saying that he would see to it that he was sent to the electric chair unless he made a statement and that he asked for them to get Mr. Brutkiewicz, who represented him, that he wished to talk with him before he made any statement. Mr. Brutkiewicz testified to the effect that he was employed by defendant’s family to represent him at the preliminary hearing. The following is a part of his testimony:

“The defendant was bound over to the Grand Jury and during the period of time between the preliminary trial and his indictment his family kept in contact with me. Some times as often as two or three times a week his sister would call me and some of his relatives from out in the Prichard area would call me. When I discovered that Tinsley had been indicted by the Mobile County Grand Jury his sister and I had discussed the question of my representation of Tinsley in the Circuit Court. She advised me at that time that she definitely wanted me to represent him; that they were having difficulty in getting up an attorney’s fee; that her mother was in Philadelphia— who would be the mother of the defendant — and they were making arrangements for the mother to come down and talk to me and that she assured me that they wanted me to represent him.
“I advised them that I couldn’t appear in Court as his counsel until some time that an attorney’s fee arrangement could be made. I think they understood that. The arraignment came up. I didn’t appear. After arraignment I received a letter from Mr. Galanos advising me that he had appeared by appointment as Tins-ley’s attorney and advised me that he had filed some pleadings. Some time after that, some time after Mr. Galanos had written me a letter informing me that he had been present and about — I would say about the 27th day of September, 1978, I returned to my office around 3:30 or 4:00, probably from District Court, which is located in the Courthouse in the same area as the Mobile County Jail, I saw a note on my sticker that Mr. Tillman [one of the officers who took defendant’s statement] had phoned me about Tinsley. I phoned the Mobile County C.I.D. and Mr. Tillman had gone. Nobody was around. Driggers [the other officer participating in the taking of defendant’s statement] wasn’t there. Nobody was there. The only person that answered the phone was someone who was not a detective.
“After the 27th of September Tinsley’s mother came down from Philadelphia and she and I entered into a contractual relationship where I would represent Tinsley. And I thereafter filed an appearance in this case. And I have represented him during a portion of the time that the old indictment was before this Court and when the new indictment was brought against him I represented him on arraignment and have represented him ever since.”

On cross-examination, Mr. Brutkiewicz testified:

“Q. Is it your testimony, sir, that you were not his attorney on September 27, 19 ...
“A. I wasn’t his attorney of record. Now, he may have easily considered me as his attorney, as the family may have considered because they were continually calling me. Even during that period of time. As I mentioned to you, I told his sister that until such time as we had a firm understanding as to my fee that I could not appear at arraignment. But they constantly called me and I don’t recall his having called me from the jail, but they constantly wanted me to go see him. They were constantly concerned about his case, as they have always been ever since I have originally come in contact with them. The family has always considered me their attorney.
“Q. During this period from your representation in District Court until the date that you stated that you couldn’t appear without a fee — and what was that date, to the best of your recollection?
“A. I don’t know. My memory could be refreshed. If you would show me the docket sheet ...
“Q. You filed an appearance, according to the Court record, on October 16?
“A. Somewhere immediately preceding that date. Because that’s when his mother came to see me from Philadelphia.
“Q. Now, the Court record reflects that on September 2nd, ’78 ‘Mr. Donald Brut-kiewicz states he does not represent the defendant.’ Did you make that representation?
“A. I am sure I did, yes.
“Q. Do you know to whom you told it?
“A. I am sure I must have told the Court because I don’t represent anybody until such time as my fee arrangement is made. And I did not represent him. Now, the family very likely considered me his attorney and the family was very likely confident they were going to come up with my fee.”

In the extended argument and lengthy colloquy among the court and counsel for the respective parties as to the admissibility in evidence of defendant’s incriminating statement, several authorities were cited and discussed. Among them are Thomas v. State, Ala.Cr.App., 373 So.2d 1149, aff’d 373 So.2d 1167 and Thompson v. State, Ala.Cr. App., 347 So.2d 1371, 1376, in which it is stated:

“Contrary to the argument presented by the appellant, the fact that a defendant has an attorney does not mean, as a per se rule, that law enforcement officials cannot procure a statement of any kind from the defendant without prior notice to, if not the consent of, the attorney. Massiah v. United States, 337 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) does not compel the contrary conclusion to this rule. United States v. Springer, 460 F.2d 1344, 1350 (7th Cir. 1972). The right to counsel is a constitutional right and may be waived. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Neither does Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) require us to reach the conclusion maintained by the appellant. United States v. Smith, 379 F.2d 628, 638 (7th Cir. 1967), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486; Springer, supra, at 1353. Thus the Supreme Court has affirmed convictions resulting from confessions obtained without the presence of counsel. United States v. Fellabaum, 408 F.2d 220 (7th Cir. 1969), cert. denied, 396 U.S. 858, 90 S.Ct. 125, 24 L.Ed.2d 109, and United States v. Crisp, 435 F.2d 354 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971), cited in Springer, supra, at 1350.”

During the lengthy colloquy among the court and counsel for the respective parties, defendant’s attorney endeavored to distinguish instant case from cases holding that there is no per se rule of inadmissibility of a custodial, incriminating statement of an accused who has an attorney that is made in the absence of the attorney and without his consent, by insisting that such is not a correct principle of law in a case, such as the instant case, in which an indictment had been returned prior to the time the statement was made. Neither party cites an authority that is conclusive on that point. We find it unnecessary to attempt to decide it at this time, for the reason that the record and the evidence show with reasonable certainty that the attorney who is asserted to have been defendant’s attorney was not in fact his attorney at the time of the statement. There is some uncertainty as to what was meant by some of the evidence on the question, such as some evidence to the effect that one of the officers taking the statement called said attorney as to the taking of the statement, but there is no positive testimony, other than from the defendant, which, if believed, makes it reasonably certain that such call was made on or about the time the statement was made. Furthermore, if there were such an effort by the officer to contact such attorney on or about the time the statement was made, such effort could readily be explained on the basis that the officer understood that said attorney had represented defendant on his preliminary hearing and desired to be assured by said attorney whether he continued to represent the defendant at the time. The record shows that he did not; the testimony of said attorney shows that though he had represented the defendant on the preliminary hearing and was considering whether he would represent him in the circuit court, he was not representing him at the time this statement was made.

We do not ignore the testimony of the defendant on the subject. We can understand that he thought he was represented at the time by the lawyer who had represented him on the preliminary hearing, but he was mistaken. Not only is the testimony of said attorney to the contrary, but the Bench Notes are also. We contrast what he testified on the subject to what the Bench Notes show. He testified:

“Q. And is it again your testimony that five days before Mr. Brutkiewicz had stood up in Court with you when you were arraigned?
“A. Say what?
“Q. All right. If you were arraigned on a charge of murder on September 22nd...
“A. Uh-huh.
“Q. ... And this statement was given on September 27th, five days had passed; is that correct?
“A. Yes, sir.
“Q. And you told me just a while ago that when you were arraigned on the charge of murder that Mr. Brutkiewicz was your lawyer; that he stood up with you in court?
“A. Right.
“Q. Is that still your statement?
“A. Yeah.”

Such testimony is irreconcilable with the Bench Notes showing that he was represented on arraignment by a different attorney, not an employed attorney but an attorney appointed by the court.

Appellant’s contention with reference to the admission in evidence of the statement carries with it no suggestion that the attorney appointed by the court to represent defendant on the arraignment should have been present at the time of the statement, or that he should have been notified thereof so that he could determine whether to give his consent for the defendant to make the statement out of the attorney’s presence. Whatever can be said for or against it, such contention is not before us for consideration. We should note, however, that there is little, if anything, to be found in the law to the effect that when an attorney has been appointed by the court to represent an indigent defendant on arraignment in order for him to be protected as to his constitutional rights at that critical stage of the proceeding, such attorney is obligated, in measuring up to his responsibility under the appointment, to then see to it, in the absence of circumstances requiring it, that the accused is thereafter exclusively his client and that law enforcement personnel be notified accordingly.

There is one statement in the testimony of the officer who participated in taking the statement of defendant that on its face tends to connote involuntariness of the statement. According to his testimony, after he had read to defendant a plenary statement of his rights and a document for the accused to sign acknowledging his understanding thereof and his voluntariness in making the statement, all before the accused made the statement, the witness said, “And I made him sign it.” As the word “made” as the past tense of “make,” often, and perhaps usually, signifies an element of compulsion, it should be stated that the entire testimony of the witness definitely and positively refutes any such signification in his use of the word. There is no contention to the contrary.

We think also that an additional observation should be made as to defendant’s statement, as to its uniqueness in its having been made while the accused was under an indictment for a violation of the Death Penalty and Life Imprisonment Without Parole Act of Alabama, which was subsequently nol-prossed, and the trial was on another indictment, one for murder in the first degree. In the testimony of the defendant on the question of the admissibility of the statement, defendant said that one of the officers had told him in effect that he would see to it that defendant was electrocuted unless defendant told the officers what occurred relative to the incident at Mount Vernon. This was denied by the officer. Nevertheless, there is hardly room for belief that defendant did not fully understand at that time that he was in grave danger of a conviction that would result in a sentence to death and that he should avail himself of any reasonable opportunity to prevent such eventuality. There is good reason to conclude, from all the testimony on the subject and from all the circumstances, that in the mind of defendant uninfluenced in the least by anything that he had learned from officers, he should try to get them to listen to him so that he could explain his conduct so as not to constitute a violation of such statute. He did just so. Insofar as the crime with which he was then charged was concerned, his statement was largely exculpatory. There can be little doubt that his statement as to all the facts that occurred was a major factor in influencing the State to reindict him for a non-capital crime and nol pross the previous indictment. Not only did defendant waive all the rights he had under the Fifth and Sixth Amendments to the Constitution when he made the statement, he profited, in his own mind, by making the statement, and in the course of time the State was caused to abandon its prosecution of him for the greater offense and proceed against him for the lesser. Irrespective, however, of this special consideration, we conclude that the trial court was not in error in admitting defendant’s statement in evidence.

The evidence connecting defendant with the alleged crime consisted largely of the testimony of Roger McQueen, who had been previously convicted of murder in the second degree of Mr. Green and had been sentenced to imprisonment for a term of twenty years. He stated in the first part of his testimony that, “the other two charges pending on me of robbery and also a murder” stemming “from the Mount Vernon killings” will be dropped against “me.” According to his further testimony, he, Tins-ley, Wright and Craig were on their way in Craig’s automobile to Jackson, Alabama, to commit a robbery; Tinsley had a .38 revolver, which Tinsley passed to Wright in the automobile and took an “antique sawed off shotgun” that was owned by McQueen, placed the gun under a coat that he obtained and wore before getting to Mount Vernon. Upon arrival at Mount Vernon, McQueen went into the store operated by Mr. Green, the Western Auto Store, to buy some masking tape to cover a hole that was in a seat of the automobile. At the time there were only two people in the store, “a lady and also a man.” He learned that they had the tape but had to return to the automobile to obtain enough money to buy it. His testimony continued:

“A. I told Craig they did have the tape but then I didn’t have enough money.
“Q. Did either Tinsley or Wright or Craig say anything else to you?
“A. Yes, sir, they did. Tinsley asked me how it looked inside and Wright asked me how many people was inside of the store.
“Q. And what was your response?
“A. I just said it was just two peoples inside of the store.
“Q. Then what happened?
“A. I entered back into the store to buy the masking tape. At this particular time Wright entered the store.
“Q. When Wright entered the store do you know if he had a weapon of any kind?
“A. Yes, sir. He had the same .38.
“Q. All right. And by ‘same .38,’ that’s the one that’s in evidence?
“A. Yes, sir.
“Q. After Wright came in did anybody follow him in?
“A. Well, after Wright started assisting Tinsley entered the store.
“Q. Did you notice whether or not Tins-ley was armed?
“A. Yes, sir, he was.
“Q. What did he have?
“A. He had the antique sawed off hid, you know, up under his coat.”

McQueen further testified that Wright “was giving orders;” he told the man and the lady “to go in the little side room,” which they did. Wright told McQueen to get the money from the cash register, which he did. Wright and Tinsley then “tied the peoples up inside of the store.” McQueen went to the automobile with the money he had taken from the register. Both Tinsley and Wright brought some articles from the store to the automobile and while they were putting them in the automobile Craig asked Wright whether “the people had been taken care of.” Then Wright and Tinsley went back into the store and upon returning they reentered the automobile. All of them then left in the automobile. McQueen further testified:

“Q. Was there any conversation in the car pertaining to what happened in the store?
“A. Yes, sir. I asked Wright what had happened. He said he shot both peoples. Tinsley agreed and I asked him to show me, you know, the empty cartridge from the gun if he had shot both peoples and he opened up the revolver. He showed me both empty cartridges and also he passed them to me. I threw them out the window on 43.”

McQueen testified that the four men then went to the house of a relative of Craig and divided the money four ways, in even shares. The witness said he did not participate “with the murder but I participated with the robbery.”

A third contention of appellant stated in Proposition II of his brief is as follows:

“The trial court erred in charging the jury that it was within the trial jury’s province to make a determination of fact as to whether witness McQueen was an accomplice.”

Both parties apparently are in agreement that the importance of this particular issue between them is to be found in the language of Code of Alabama 1975, § 12-21-222:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows commission of the offense or the circumstances thereof, is not sufficient.”

Neither party contends that the testimony of McQueen was not corroborated. Both parties apparently recognize that an incriminating statement of a defendant, such as the incriminating statement of defendant in the instant case, “is sufficient corroboration of an accomplice’s testimony to sustain a conviction of the accused.” Gamble, McEl-roy’s Alabama Evidence, § 300.01(9) (1977). In first raising the question as to the sufficiency of the evidence to sustain a conviction counsel for defendant stated in moving to exclude the evidence at the conclusion of the testimony for the State:

“Without the confession all you have is the uncorroborated testimony of an accomplice. There has been no other evidence introduced and should the Appellate Court throw out the confession then I think this case should be reversed and rendered.”

Immediately after the court’s denial of defendant’s motion to exclude, defendant rested and there was no further evidence in the case. Thereupon there was a colloquy, out of the presence of the jury, among the court and counsel for the respective parties as to whether the evidence showed, as a matter of law as distinguished from a question of fact for the jury to decide, whether McQueen was an accomplice to the murder of Mr. Green. Defendant’s counsel contended that as a matter of law he was; State’s counsel contended that defendant was not. However, no written charge was requested by either party on the subject. In its oral charge to the jury, the court gave lengthy instructions, consisting of more than two transcript pages, on § 12-21-222, with particular reference to witness McQueen, without charging that he was or was not an accomplice, leaving that question as one of fact for a determination by the jury. In addition, the court read to the jury three written charges pertaining to the testimony of Roger McQueen, which are as follows:

“3. The Court charges the jury that if they believe from the evidence that Roger McQueen was an accomplice to the crime being charged to the defendant the jury must consider the fact that Roger McQueen has been promised rewards for his testimony and therefore the jury should consider his testimony to be suspect.
“4. The Court charges the jury that if they believe from the evidence that Roger McQueen was an accomplice to the crime for which the defendant is being charged, then they must consider Roger McQueen’s testimony to be suspect.
“5. The Court charges the jury that if they believe from the evidence that Roger McQueen has been offered rewards to testify against Reginald Tinsley then the jury must consider the fact that Roger McQueen may have sworn falsely against Reginald Tinsley in order to save himself from prosecution by the State of Alabama.”

Promptly thereafter, the court welcomed exceptions to the court’s oral charge out of the presence of the jury, if defendant’s attorney preferred it, which he apparently did and expressed an exception, out of the presence of the jury, as shown in the following portion of the transcript:

“THE COURT: All right. Now, Mr. Brutkiewicz, there is a lot in this case. Let’s take it in order. What is your first exception?
“MR. BRUTKIEWICZ, SR.: My first exception is those portions of Your Honor’s oral charge wherein you informed the jury that within their province to make a finding of fact as to whether or not Roger McQueen was an accomplice and the reason I make that exception, Judge, it’s the contention of the defendant that because of the facts presented in this case wherein it was undisputed that Roger McQueen was indicted and convicted of this offense which he is testifying against his companion and he has confessed to being involved in the robbery that was involved in this same offense, whether or not he was an accomplice is a question of law that is within the province of the jury to make that determination.
“THE COURT: Do you agree with that, Mr. Galanos?
“MR. GALANOS: No, sir, based on what you read from the Jack’s case which quotes the Yarber v. State, Alabama Supreme Court decision it would seem that —well, it doesn’t seem — it is the law of this State that where a witness denies his participation in the crime charged against the defendant the issue of his being an accomplice is a disputed fact presenting a question for the jury, despite the additional fact that the witness has previously been convicted for the identical crime.
“THE COURT: Court notes the exception to that.
“MR. BRUTKIEWICZ, SR.: Judge, when I say the last part, it’s within the province of the Court to make that determination. I think I said jury instead of Court. In other words, the basis of my exception is it’s within the province of the Court in this particular case because it’s a question of law, not a question of fact.
“THE COURT: So noted.”

Notwithstanding any question as to the sufficiency of the defendant’s exception, it is clear that in stating the reason for the exception, the exceptor was not on sound legal grounds. The fact that a witness for the State has been convicted for the same crime as the one for which a defendant is being tried does not require the conclusion that he is an accomplice to the crime, as shown by the case cited by counsel for the State, and other cases. Yarber v. State, Ala.Cr.App.., 368 So.2d 868 (1978); Jacks v. State, Ala.Cr.App., 364 So.2d 397 (1978). Furthermore, the fact that the witness had “confessed to being involved in the robbery that was involved in this same offense,” does not require the conclusion as a matter of law that he was an accomplice to the killing of Mr. Green, unless the robbery that occurred is so involved in the murder as to make applicable the felony-murder doctrine prescribed in Code of Alabama 1975, § 13-1-70, which provides in pertinent part:

“Every homicide ... committed in the perpetration of, or the attempt to perpetrate, any ... robbery ... is murder in the first degree.... ”

Whether Roger McQueen was convicted of the murder of Mr. Green under the felony-murder doctrine cannot be decided in this case as the evidence in that case was doubtless not the same as in the instant case. To determine in this case whether he was subject to conviction under the felony-murder doctrine, we can look to the evidence in this case only. From some of the testimony of McQueen as stated above, it is to be seen that a serious question is indicated as to whether at the time Mr. Green was killed, McQueen was still aiding or abetting Wright, who killed Mr. Green, in the commission of robbery or, on the other hand, whether the robbery had been consummated to the extent that the homicide was not “committed in the perpetration” of the robbery, which is required for a conviction of murder under the felony-murder doctrine as prescribed by Code § 13-1-70. Much can be said with reason, pro and con, on the question whether McQueen was properly triable for at least two crimes, robbery and murder of Mr. Green, The resolution of the question would depend to a great extent upon the motive for the killing (whether to insure the success of the robbery or to preclude identification of the robbers), the relation in point of time and the distance between McQueen and Wright and Mr. Green at the time Mr. Green was killed, and other circumstances. In this connection, we keep in mind that according to the evidence, McQueen had been indicted for the robbery and for the murder of Mr. Green and that he had been promised by the State that those cases against him would be nol prossed. The evidence also shows that he was represented by an attorney and that his attorney had concurred in that understanding between defendant and the State. We are not favored by the parties with discussion of whether two separate crimes of robbery and murder of Mr. Green were committed and withhold any final opinion on the subject, but it appears from the evidence in the instant case, which is before us now and which was before the trial court when it charged the jury, that whether McQueen was an accomplice to the murder of Mr. Green was not a question of law for the court to decide but was a question of fact properly submitted for the determination of the jury. The trial court did not commit error prejudicial to defendant in submitting to the jury the question whether McQueen was an accomplice to the crime charged in the instant case.

The fourth contention for reversal is that the trial court was in error, in the absence of a requested charge by appellant, in charging the jury that it was not to indulge any presumption as to defendant’s failure to testify. The contention is directed at the following in the court’s oral charge:

“In this particular case the defendant had elected not to be a witness, which he has the right and the justification to do. The law never puts the burden on any defendant to prove his innocence or to disprove his guilt but that burden remains on the State of Alabama throughout the trial of this case. You are not to indulge any presumption whatsoever from the fact that the defendant has elected not to be a witness in this case.”

After defendant’s counsel had taken, and the trial court had considered, defendant’s exception to the oral charge as to whether McQueen was an accomplice, the following occurred:

“MR. BRUTKIEWICZ, SR.: All right. Now, Judge, I also take exception to that portion of Your Honor’s oral charge wherein you commented on the defendant’s election not to be a witness in his own behalf.
“THE COURT: Oh. I had another lawyer do that, Donald, and later on he came back and told me that he believed that to be the law. I honestly, if I had thought that would have offended you I wouldn’t have said it. I wanted to eliminate the doubt that they may go back there and say why didn’t he testify.
“I don’t what I can undo now. I will note your exception. If you word up any explanatory charge that you don’t think will aggravate the situation I will give it.
“MR. BRUTKIEWICZ, SR.: I will let it go at that.
“THE COURT: I will note your exception to that. What else?
“MR. BRUTKIEWICZ, SR.: That’s all.”

Appellant relies upon Smith v. State, Ala. Cr.App., 370 So.2d 312, 315-318 (1979), in which one reason for a reversal was a portion of the court’s oral charge with reference to defendant’s failure to testify as a witness. In Smith, as here, defendant had not requested any charge on the subject. Extensive consideration was given in Smith, supra, to the danger of error prejudicial to defendant in the trial court’s unrequested instructions to a jury on the subject; a caveat was noted as to an instruction in the absence of a request by defendant. We refrained, however, from holding that an instruction on the subject would necessarily constitute prejudicial error. We noted that under the circumstances of the particular case the particular instruction was subject to a reasonable construction by the jury “that no inference unfavorable to the State could be drawn from the failure of the State to have defendant testify as to his guilt or innocence” and that “if defendant had testified, he would have testified against himself.” We have no such instruction and no such likely consequence in the instant case. Furthermore, any possible prejudice to defendant could have been removed by an additional instruction, for which defendant was tendered an opportunity and declined. The court’s action did not constitute prejudicial error.

Appellant’s fifth and final contention is a conditional one. He says in effect that if the court on appeal holds that defendant’s “confession” was inadmissible, the judgment of the trial court should be reversed and a judgment here rendered discharging the defendant. As no such hypothesis now exists, there is no occasion for a discussion of the proposition.

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . In this charge and in charges 3 and 4, the must was changed to may, and as so changed the charges were read to the jury.


author: EMBRY, Justice.

text:
    Ex parte Reginald Bernard TINSLEY. (Re Reginald Bernard Tinsley v. State of Alabama).
    80-284.
    Supreme Court of Alabama.
    March 26, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.