author: HARRIS, Presiding Judge.

text:
    Jesse Benjamin STONER v. STATE.
    6 Div. 342.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.

      Jesse Benjamin Stoner, pro se.
    Travis Buckley, Ellisville, Miss., for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted on the charge of unlawfully exploding dynamite dangerously near an inhabited dwelling. The indictment reads:

“The grand jury of said county charge that, before the finding of this indictment, Jessie Benjamin Stoner, alias Jesse Benjamin Stoner, alias J. B. Stoner, whose name is to the Grand Jury otherwise unknown, willfully and unlawfully set off or exploded dynamite or other explosive in, under or dangerously near to the dwelling house of, to-wit: Mark E. Roberson, in which there was at the time a human being, to-wit: the said Mark E. Roberson.”

The sufficiency of the evidence is raised by a motion to exclude the state’s evidence and a motion for a new trial. The trial court denied both motions. We are put to a review of the evidence.

This case arose out of the attempted bombing of the predominately black Bethel Baptist Church during the racial tensions that existed in Birmingham in the late fifties and early sixties. In the early morning hours of June 29, 1958, members of the Bethel Baptist Church noticed smoke rising from a paint can placed next to the church. After the men had moved the bomb away from the church, the bomb exploded, causing considerable structural damage to the church and the surrounding inhabited dwellings. After a long delay, appellant was indicted for the crime and tried by a Jefferson County Circuit Court jury. Appellant was found guilty and sentenced to ten years imprisonment.

Summary of the Evidence

The state’s first witness was Reverend Fred L. Shuttlesworth, a prominent leader of the Birmingham civil rights movement. Reverend Shuttlesworth was pastor of the Bethel Church when the church was bombed. Around 1:30 a. m. on the day of the bombing, Reverend Shuttlesworth was awakened in the parsonage by a strong vibration which caused him to fall from his bed. Reverend Shuttlesworth immediately ran to his church and noted that the church had sustained a good deal of damage from some sort of explosion. He then called the local police and the F.B.I.

On cross-examination, Reverend Shuttles-worth testified that he never saw appellant in the vicinity of the church.

Luverne McWilliams lived with her parents across the street from the church and next to the parsonage. Around 1:30 a. m. on June 29, Ms. McWilliams was given a ride home from work. While standing on her porch she noticed near the church a five gallon paint can with smoke rising out of it. She called to the guards who immediately ran to the can and moved it to the street. The can exploded, breaking out the windows of her house.

Ms. McWilliams’ sister, Robbie Revis Smith, testified that, shortly after her sister had come home, she heard a loud explosion which broke out her windows, knocked the front door off its hinges and cracked the plaster. She too noted that the church had been considerably damaged.

Mark Roberson also lived across from the church. After the explosion awakened him, he noticed that the explosion had blown out his windows, causing sheetrock to fall, and had broken household objects. Debris from the explosion also dented the house’s structure.

C. S. Johnson, a member of the Bethel Church, was on guard the morning of the explosion. He and the other guards were behind the parsonage when Ms. McWilliams called out that she saw smoke near the church. The guards, on approaching a paint can, recognized it as a bomb. One of the guards, Will Hall, moved the can to the side of the street where it exploded.

Mr. Johnson also testified that, in June 1958, just prior to the bombing, he and other church members were standing guard outside the church while a church meeting was being held. Mr. Johnson stated that appellant walked up to the church and asked to see Reverend Shuttlesworth so that Reverend Shuttlesworth could pray for him. After a guard refused appellant’s request, appellant paused a moment and then walked away.

Aaron Rosenfield was' the Fire Marshal during the time of the bombing. He had general training in the use of explosives, and had specifically studied the nature of dynamite. On the morning of the explosion Mr. Rosenfield investigated the area around the Bethel Church. He observed a round hole near the church, and detected a distinct odor of dynamite. It was his opinion that dynamite had been used. Mr. Rosen-field also testified that he had periodically returned to the church, the last time being one or two years before the trial.

Sergeant E. H. Cantrell of the Birmingham Police Department testified that, just prior to the trial, he had made measurements at the place of the bombing. The distance from the explosion to Mark Roberson’s house was some 132 feet. Mr. Cantrell also stated that his part of the investigation had been going on for some four or five years prior to the trial and the investigation report in this case was an “ongoing report.”

Lieutenant Tom Cook, a retired Birmingham police officer, was also called to the scene of the church bombing immediately after the explosion. He saw a large hole near the church and noticed that the church was damaged.

Lieutenant Cook testified that he was involved in a conversation with appellant on June 21, 1958, a week before the bombing. Also involved in the conversation were a fellow officer, Captain G. L. Pattie, and a Klan member turned informer, Hugh Morris. Captain Pattie was deceased at the time of the trial.

The conversation occurred inside a parked car in a Birmingham hotel parking lot. The police officers were undercover and Cook introduced himself as “Ted” Cook, while Captain Pattie introduced himself as “Edwards.”

The police detectives told appellant that they were Birmingham steel workers interested in “the movement.” Captain Pattie told appellant that they were interested in a possible bombing similar to the unsuccessful attempted bombing of a Jewish synagogue the previous April. Captain Pattie said that they were interested in helping whoever had been doing this type of thing but they were not interested in a “dud” like the synagogue bomb.

Lieutenant Cook further testified that appellant stated that he could handle any type of bombing and that he had people who were experts at bombing. If these people were paid, they would agree to set a bomb that would go off and damage almost any sort of building. Appellant allegedly claimed that for $2,000 he would get his people to make a bomb and place it wherever the officers suggested. No particular target was designated, but several targets were mentioned including the Bethel Church and the Birmingham News.

When the Bethel Church was mentioned by one of the officers, appellant replied that he knew where the church was and was familiar with the layout because he had been to the church. Appellant observed that the church would be difficult to bomb because of its all black neighborhood location, but he and his boys would bomb any place, including the Bethel Church.

Appellant then said that he could obtain explosives without signing for them. He also stated that he had seen a bomb already made up which consisted of loose dynamite placed in a bucket.

Lieutenant Cook testified that no agreement was made to bomb the church or any other target. The conversation ended when Lieutenant Cook told appellant that his group could raise the $2,000 and decide on a location and they would notify him.

The Bethel Baptist Church was bombed on June 29, 1958. On July 12, 1958, the same participants in the first meeting met again at the same location. Lieutenant Cook testified that appellant began the meeting by stating that “his boys” had done the job and wanted their money. The officers then discussed with appellant the possibility that members of the Bethel Church had committed the bombing to get sympathy and attention. Appellant replied that “we four know they didn’t do it and the blacks know they didn’t do it.” Appellant further stated that his boys had decided to go ahead with the bombing to ease the officers’ fear of a botched job and to show the officers what type of job they could do. Appellant correctly described where the bomb had originally been placed and correctly described the bomb used.

Lieutenant Cook testified that, after the officers refused to pay $2,000, appellant asked for one-half the money and asked to be paid the other $1,000 on completion of another job. When the officers refused appellant replied that he was afraid to go back to his boys empty-handed. When Lieutenant Cook was asked if appellant specifically indicated whether or not he had authorized the bombing, appellant’s only reply was that he had unsuccessfully tried to call his boys and that he knew that they had come to Birmingham.

On cross-examination, Lieutenant Cook testified that Commissioner Conner wanted appellant to come to Birmingham to discuss the attempted bombing of the Jewish synagogue. Lieutenant Cook also testified that, after the second meeting, appellant never asked for the money.

At the close of Lieutenant Cook’s testimony, the state rested. Appellant’s first witness was Lieutenant Cook, who was recalled to the stand. Lieutenant Cook testified that his part of the investigation ended p few months after the second conversation with appellant and in his opinion the most fruitful investigation occurred during the second meeting. Lieutenant Cook further testified that he did not know why the case was delayed but he stated that the investigators turned over all of the information they had to the Justice Department in Washington.

Lieutenant Cook, as well as other officers, had maintained surveillance of the Be-thel Church before the bombing and some of these officers had attended meetings to insure that violence did not erupt. He also stated that the church was bugged on certain occasions.

Appellant next recalled Reverend Shut-tlesworth to the stand. Reverend Shuttles-worth testified that, during 1958, police officers were frequently at church meetings. He further testified that the church members had objected to the presence of the officers.

The first time Reverend Shuttlesworth had seen appellant was just prior to the trial. Reverend Shuttlesworth noted appellant walked with a slight limp.

James Russell, one of the church guards in 1958, was called to the stand. Prior to the explosion, Mr. Russell was in the balcony of the church watching the parsonage. He did not see anyone place the bomb. He did not see the five-gallon bucket before it exploded, nor had he seen the appellant before the trial.

Dean Dawson, an employee of State Farm Insurance Company, took the stand. Mr. Dawson explained the procedure used by State Farm employees when seeking reimbursement for travel expenses. The employees were to keep a record of their travel when traveling on company business. He testified that the records would probably indicate where one of the employees was traveling on a given day.

Appellant recalled Fire Marshal Aaron Rosenfield. Mr. Rosenfield explained the uses and characteristics of dynamite. According to Rosenfield, lit dynamite fuses usually emit black smoke and would therefore be difficult to see on a dark night. Mr. Rosenfield doubted someone could smell dynamite as far as 130 feet away.

Appellant took the stand. Appellant testified that he was born in Walker County, Georgia, and was fifty-four years old. Appellant graduated from law school in 1952 and later began working for State Farm Insurance Company as a claims adjustor. He was assigned to Savannah and then Dublin, Georgia. At the time of the bombing, appellant was working out of Dublin.

Appellant traveled within a seventeen county area, adjusting claims. State Farm required him to keep a daily record of his expenses and submit the vouchers at the end of the week. The vouchers would reflect his whereabouts on any given day. Appellant testified that he had lost the carbon'copies of these records. Appellant made inquiries to State Farm about these records, but he was informed that the records had been destroyed.

Appellant stated that, as a result of having polio when he was young, he had had a slight limp from the time he was 2lk years old.

Appellant testified that in June of 1958 he was staying with a friend outside of Atlanta. While appellant was out in the yard, Hugh Morris drove up. Morris told him that he wanted appellant to bomb Reverend Shuttlesworth’s church in Birmingham, because someone out of the state was needed. Appellant contended that Morris was inconsistent in explaining who wanted to hire him. In any event, Morris told appellant that a Birmingham group was willing to pay appellant for his services at a later date.

According to appellant, Morris later made a second visit stating that he did not have the money yet because the Birmingham group did not trust him. Morris asked appellant to come to Alabama to meet this group and discuss his services. Appellant stated that he was perplexed as to how Morris was able to find him in Georgia.

Appellant did later go to Montgomery to work for a segregationist gubernatorial candidate. Appellant met Morris at the candidate’s house and Morris asked appellant to ride with him to Birmingham. Morris told appellant that he did not have the money to pay for the bombing but that he wanted him to meet the Birmingham group.

In a Birmingham hotel parking lot, appellant met two other men who Morris claimed would pay appellant $2,000 to bomb Reverend Shuttlesworth’s church. The two men were Lieutenant Cook and Captain Pattie. Appellant claimed that the three men told him that if a bomb did not get Reverend Shuttlesworth out of Birmingham they would pay to have him “eliminated.”

Appellant further testified that the men said they did not have the $2,000 at that time but whenever they did they would pay him to bomb the Bethel Church. After the meeting Morris drove appellant by what Morris claimed was the Bethel Church. Appellant denied ever being on the church grounds. The pair then returned to Montgomery. The explosion occurred the next weekend.

Appellant testified that, after the church was bombed, Morris phoned him in Dublin, Georgia and told him that the Birmingham group wanted to see him again in Birmingham. Appellant agreed to meet the group, and an acquaintance, Richard Bowling, rode to Birmingham with appellant. Appellant met Morris at a Birmingham bus station, and rode with Morris back to the same hotel parking lot. Lieutenant Cook and Captain Pattie then joined the two men.

During this second conversation, appellant alleges that he asked the officers what they were up to and that the responses were contradictory. They first told him the blacks had bombed the church. Appellant further testified that Morris told him that the police had furnished him with a black informer who had bombed the church for $500. Appellant claims that the undercover agents wanted to talk with appellant this second time in order to offer appellant $10,-000 to kill Reverend Shuttlesworth. The undercover agents never paid appellant any money.

After the second meeting, Morris and appellant met Richard Bowling. Appellant claims that Bowling knew about Morris, including the fact that he was a police informer, and that Morris and the undercover agents were trying to trap appellant. Appellant claimed he also knew this. Bowling allegedly confronted appellant with this information.

Appellant was asked why he participated in the two conversations if he knew he was being set up. He replied that Morris had earlier approached appellant offering to pay to have Martin Luther King, Jr., assassinated. Appellant testified that he felt that Morris’s offers were an attempt “to entrap and send white people to jail merely because they believed in white supremacy and segregation.” Appellant claimed he participated in the conversations to expose this plot to trap people.

Appellant was then asked if he had ever advocated the use of personal violence against any segment of society to which he replied that he had never advocated the use of such violence. Appellant also denied knowing anything about the design of bombs.

During cross-examination, the prosecution asked appellant if he had made certain extremely prejudicial statements concerning Jews and blacks, many of which advocated the use of violence. Appellant stated that he did not remember making a few of the statements. However, he acknowledged that he had made some of the other statements or at least similar statements.

The prosecution then questioned appellant about the two conversations he had with Hugh Morris and the two undercover .agents. Appellant denied that he offered to bomb Reverend Shuttlesworth’s church or any other target. He further denied that the bomb was already prepared. Appellant also denied telling the officers during the second conversation that his boys had bombed the church.

Appellant claimed that he knew before the meeting that he was dealing with undercover agents attempting to have Reverend Shuttlesworth killed while appellant took the blame. Appellant admitted that he did not report this attempted set-up to local, state or federal authorities.

Appellant denied attempting to collect the $2,000 from the undercover agents. However, the appellant admitted that, while testifying in an earlier proceeding in Georgia, he testified that he had planned to take the $2,000. Appellant then admitted that he did try to collect the money.

Appellant was then asked about his whereabouts on the weekend of the explosion. Appellant claimed that he had worked on Saturday morning of June 28, 1958. That afternoon, appellant returned to Dublin, Georgia and went to see a friend. He and his friend then drove south of Dublin to visit his friend’s girl friend. That night around 10:00 the two men drove to Atlanta. The next morning appellant went by the post office and later returned to Dublin.

Appellant testified that he was the attorney for the National State’s Rights Party. He acknowledged that he had on numerous occasions stated that the party was “the most white racist, anti-Nigger, anti-Jew organization in the entire world.” Appellant had been chairman of the party since 1969. Appellant was also asked if he had made other quoted prejudicial remarks about blacks and Jews.

On redirect, appellant again denied involvement in the bombing.

Appellant’s last witness was John Robert Stallworth, a retired school teacher. Mr. Stallworth met appellant in 1957. Mr. Stallworth stated that he did not personally like appellant because of his methods and terminology used in furthering the cause of “conversation.” Mr. Stallworth testified that appellant told him to beware of Lieutenant Cook, Hugh Morris and Captain Pat-tie. Appellant allegedly then told Stall-worth that he was going to get back at the officers “for what they were trying to do to him and get some money for nothing.”

Mr. Stallworth claimed that appellant told him that men were trying to trap him and that Hugh Morris was working for the police. Mr. Stallworth did not believe appellant had anything to do with the bombing.

Appellant first contends that the statute of limitations barred his prosecution and conviction.

The state argues that, as a procedural matter, appellant improperly raised his statute of limitations claim by including it with other matters in his “Plea of Abatement.” Appellant also raised the issue in his motion for a new trial.

The state correctly states that § 15-15-(40-44), Alabama Code 1975, the statutory “plea of abatement,” does not mention the statute of limitations. However, the code directs that, “In criminal proceedings, a plea is to be determined according to its substance, and not by its commencement or conclusion.” § 15-15-3. This court has stated that “substance over form” is the rule in reviewing a plea. Although appellant does argue the abatement issue in his plea of abatement, numerous other issues are raised, among them the statute of limitations. That the pleading was entitled “Plea of Abatement” does not make the plea invalid. Simpson v. State, Ala.Cr.App., 354 So.2d 317, cert. denied 354 So.2d 324, (Ala.1978).

Also, “In most of the cases it has been held that the statute of limitations is available under the general issue and need not be pleaded specially.” 22 C.J.S. Criminal Law, § 449 (1961). The Alabama appellate courts follow this liberal procedure. This court has consistently held that the statute need not be specially pleaded. Lambeth v. State, Ala.Cr.App., 380 So.2d 925, cert. denied 380 So.2d 926 (1980); Gambling v. State, 22 Ala.App. 442, 116 So. 507 (1928). In fact, this court has held that the state, as part of its burden of proof, must show that the offense was committed within the statute. If such is not shown, the state fails to make out its case. Harris v. State, 54 Ala. App. 10, 304 So.2d 252 (1974).

In light of the court’s preference of substance over form, and of the fact that the statute of limitations issue is part of the state’s burden of proof, the issue is properly before this court.

However, we find that appellant’s prosecution was not barred by the statute of limitations.

Alabama uses a capital/non-capital distinction in determining the applicable statute of limitations. Basically, with certain exceptions, under both the 1940 Code and the 1975 Code, a capital felony carries an unlimited statute of limitations (Tit. 15 § 219, Code of Alabama 1940; § 15-3-5, Code of Alabama 1975) and a non-capital case carries a three-year statute of limitations. (Tit. 15, § 221; § 15-3-1). At the time appellant allegedly committed the crime, the crime was a capital offense, Tit. 14, § 123, Code of Alabama 1940. Subsequently, the U.S. Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) declared the death penalty unconstitutional. At the time appellant was indicted, Alabama’s new death penalty provision was in effect and did not include appellant’s alleged felony. §§ 13-11-1 through 9, Code of Alabama 1975.

Appellant contends that, because of the Supreme Court’s decision in Furman, supra, his felony was no longer a capital offense and thus carried a three-year statute of limitations under Tit. 15, § 221 1940 as of July, 1972, the date of the Furman decision. Appellant also contends that the fact that Alabama’s new death penalty act which went into effect in March, 1976, did not include his felony is further reason to apply a three-year statute of limitation.

We do not agree with appellant’s contentions for a number of reasons.

Although this specific issue has not been decided in an Alabama criminal case, we agree with the Florida Supreme Court that the statute of limitations in a criminal prosecution is a substantive right, rather than being merely a procedural matter.

We believe that the Florida Supreme Court in Manucy v. Wadsworth, Fla., 293 So.2d 345 (1974) clearly and concisely addressed the issue. In Manucy, as in the present case, the defendant had committed the felony before the Furman decision invalidated Florida’s death penalty. Appellant was arrested, subsequent to the decision but prior to the enactment of Florida’s new death penalty provision which reinstated the death penalty for his crime. Florida’s statute of limitations, like Alabama’s, was based on a capital/non-capital distinction in which capital felonies carried no statute of limitations.

The Florida court, in rejecting defendant’s argument that the two year “non-capital” statute of limitations should apply, stated:

“Petitioners therefore assert that the limitation statute should be given the status of procedure wherein the court looks to the limitation period in effect at the time of the arrest to determine whether the prosecution was timely instituted.
“[1] A review of the authorities indicates that the statute of limitations in force and effect at the time of the incident giving rise to the criminal charges is controlling in determining whether prosecution has been timely commenced.
“[2] Statutes of limitation in criminal prosecutions (‘Limitation on Prosecution’) are strictly creatures of statute; State v. Hickman, 189 So.2d 254 (Fla.App.1966); and such are considered as vesting a substantive right, rather than being a procedural matter.
“ ‘. .. Whenever, however, it so clearly appears that the time of the commission of the offense was so long ago as that the accused is protected from accusation by the statute of limitations, he may be awarded this right on habeas corpus. There is as much a denial of what we have called the first right of every accused person, by holding him to answer an offense for which he cannot be lawfully prosecuted, as there is for one wholly unsupported by proofs. Whether the question is properly raised by demurrer, by special plea, or by the general issue plea, makes no difference. The right of protection is not a mere right.’
“[3] Therefore, the period of the statute begins to run from the time of the alleged criminal conduct. In United States v. Auto Rental Co., 187 F.Supp. 603, 605 (W.D.Pa.1960), the criminal conduct arose out of the alleged illegal payments of money. There the Court held:
“‘. .. Of course, if all the money was paid prior to the 5-year period, the Statute of Limitations would bar prosecution. Protection from prosecution under a Statute of Limitations is a substantive right, and the actual date or dates of payment may be of vital importance to the defendants.’
“[4] In Florida, it has been held that the time of the commission of the offense is the point at which the court commences to have jurisdiction for the computation of the limitation period.
“To hold otherwise might be to create a situation which is clearly unconstitutional. This could allow the Legislature to enlarge the statute of limitations until the criminal in question was tried and sentenced; clearly an application which is ex post facto.
“[5] In the cases before us, the crimes were both allegedly committed prior to the decision in Furman v. Georgia, and therefore since the statutes of limitation are substantive, the two year period to institute prosecution is not applicable, [to bar the prosecution] (Footnotes omitted.)”

In adopting the reasoning and law of Manucy, supra, we find that the trial court properly applied the statute of limitations in effect at the time of the crime.

Also, this court addressed the general issue of whether a statute in effect at the time of the crime controls or whether a subsequent new statute passed after its commission controls.

In Hansen v. State, Ala.Cr.App., 375 So.2d 564 (1979), the defendant committed the crime of murder on March 27,1978. On April 27, 1978, the legislature enacted a law changing the method of jury selection. The defendant was indicted on May 12, 1978.

The court, in holding that the statute in effect at the time of the crime, not at the time of the indictment, controlled, stated:

“At the outset, we note that the Supreme Court of Alabama, in Bracewell v. State, Ala., [401 So.2d 123 (1979), reversed on other grounds, 449 U.S. 915, 101 S.Ct. 312, 66 L.Ed.2d 143 (1980),] in determining the effective date of a statute applicable to juveniles, stated:
“Absent a clear expression in the Statute to the contrary, we think the law applicable at the time of the offense was intended to govern the offense, the offender, and all proceedings incident thereto, and we so hold. [Emphasis added.]”

At the time of the appellant’s commission of the crime, the statute was a capital offense. Since that statute controls in determining the statute of limitations, appellant’s act carried an unlimited statute of limitations. § 15-3-5, Code of Alabama 1975.

Appellant filed a motion to quash the indictment alleging a due process violation resulting from the long delay between the commission of the crime and his indictment. Appellant specifically alleges that, because of the death of certain witnesses along with the loss of certain records and dimming of memories, he was denied a fair trial in violation of the due process clause.

The Supreme Court held in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), that a defendant’s Sixth Amendment right to a speedy trial applies only to prosecutions formally begun, not to pre-accusation delays. Appellant does not argue a speedy trial violation.

Since appellant’s prosecution is not barred by the statute of limitations, the possible due process violation must be addressed.

Although Marion, supra, recognized a due process protection separate from the statute of limitations, the due process clause has a limited role against oppressive delay, United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, cert. denied, Ala., 373 So.2d 1211 (1979), and mere passage of time per se is not a constitutional violation. U. S. v. Lovasco, supra, United States v. Doe, 10th Cir., 642 F.2d 1206 (1981). A defendant is charged with a heavier burden of proof in showing a pre-indictment delay due process violation than in showing a denial of his speedy trial rights. The Marion court requires a showing by defendant of actual prejudice, not the mere possibility of prejudice, and that the delay “caused substantial prejudice to appellee’s rights to a fair trial.” The proof of actual and substantial prejudice due to the loss of potential witnesses must be “definite and non-speculative.” This actual prejudice must be shown and cannot be presumed. Marion, supra; Chambliss, supra.

The central question becomes whether appellant met the heavy burden of proof by showing an actual and substantial prejudice resulting from the lengthy delay. We hold that he did not.

Appellant, in attempting to prove “actual prejudice,” argued that the memories of witnesses had dimmed during the delay. However, in light of the protection afforded by the applicable statute of limitations, diminished recollection alone does not constitute substantial prejudice. Marion, supra.

More significantly, appellant claimed actual prejudice resulted from the death during the pre-indictment delay of certain potential witnesses, who, he alleges, would have testified in a manner significantly beneficial to his defense. The only “proof” appellant offered in showing actual prejudice was affidavits that he alleged contained what the potential witnesses would have testified to at trial.

The offered affidavits are simply self-serving assertions which do not prove actual prejudice. The affidavits are bare allegations of what the potential witnesses would have said with no extrinsic support in the record. The nature of such affidavits is much too speculative and non-definite to meet the heavy burden of proof required by Marion. Merely because appellant alleges that certain dead witnesses would testify for him and in a certain manner does not prove that the potential witnesses would testify in such a manner or even testify at all. We cannot accept such self-serving declarations as proof of actual prejudice resulting from the absence of these witnesses, and the affidavits alone do not satisfy the requirements of Marion. United States v. Hauff, 7th Cir., 395 F.2d 555, 556 (1968); United States v. Mays, 9th Cir., 549 F.2d 670, 674 (1977); U. S. v. Hood, 8th Cir., 593 F.2d 293, 296 (1979), United States v. Revada 10th Cir., 574 F.2d 1047 (1978); United States v. King, 7th Cir., 593 F.2d 269 (1979); United States v. Saunders, 9th Cir., 641 F.2d 659, 665 (1980); United States v. Mills, 9th Cir., 641 F.2d 785, 789 (1980); United States v. Surface, 5th Cir., 624 F.2d 23, 25 (1981); See also Judge Barnett’s concurring opinion in United States v. Radmall, 10th Cir., 591 F.2d 548 (1978).

Even if we speculate that the potential witnesses would have testified as appellant claims they would in his affidavits, we believe that the lack of most, if not all, of the allegedly lost testimony does not constitute actual prejudice.

First of all, much of the alleged testimony is rank hearsay, and it would be highly speculative as to whether a good deal of the alleged testimony would even be admissible. For example, appellant claims that one potential witness would have testified “that appellant told him that Hugh Morris claimed, etc.”

Also, it is contested as to whom the testimony alleged in the first affidavit would benefit. Appellant claims that the potential witness would have testified that Hugh Morris, the informer, told appellant that he had hired someone else to bomb the church in order to gain appellant’s confidence. However, the state argues that the alleged testimony might help the state. In light of Cook’s testimony that appellant was anxious to participate in the bombing, the alleged testimony may have been further evidence that appellant, as an accomplice, had started the process that ultimately led to the bombing.

A second affidavit alleged that another of appellant’s deceased friends would have testified that appellant told him that appellant knew Hugh Morris and the others were trying to trap him and that he was “playing them along.” If we ignore the great speculation that the potential witness would have even been allowed to testify to appellant’s self-serving declaration as evidence of the matters declared, the alleged testimony would have been at best cumulative and would have added little to appellant’s defense. At the trial, John Robert Stallworth testified to essentially the same thing. Appellant also gave the same account when he took the stand.

Finally, two of the four affidavits deal with potential alibi testimony which appellant claims would place him in Georgia at the time of the bombing. Appellant also contends that certain State Farm Insurance Company employee records would tend to prove the same. However, the trial court noted and the state concurred that appellant was on trial as an accomplice. There was never any contention by the state that appellant had actually ignited the bomb.

Moreover, even if appellant had proven actual prejudice, the Supreme Court has held that proof of actual prejudice is generally a necessary but not a sufficient element of a due process claim. Proof of actual prejudice is only the first step. If such proof is given, then the focus turns to the reasons for the delay. Lovasco, supra. Marion held that evidence of an intentional delay by the state to gain a tactical advantage would be a due process violation. Lo-vasco apparently includes evidence of “reckless disregard of circumstances known to the prosecution...” 431 U.S. at 796, n.7, 97 S.Ct. at 2048 n.7.

We are hampered by our search in determining reasons for the delay because of the meager evidence on this issue in the record. In essence, no real reason for the delay can be found in the record. Thomas Cook, the Birmingham policeman who participated in the conversation with appellant, stated that he did not know why the prosecution was delayed and that he had no reason to believe any other evidence would have been forthcoming after the conversations. However, the other state investigators at least imply that the investigation had continued after two conversations with appellant. A fire and bombing expert testified that he had periodically returned to the site of the bombing, and a Birmingham police officer testified that the investigative report was an “ongoing report” and that his part of the investigation had been going on since four or five years previous to the trial.

During a post-trial hearing appellant placed both prosecutors on the stand. Neither prosecutor had been involved with the case before the indictment had been returned, and neither could give a reason for the delay. The prosecution did expressly deny that the delay had been more advantageous to the state than to appellant.

The only other reference to the subject arose during a post-verdict discussion in which appellant alleged that the state purposely delayed to gain a tactical advantage. Appellant claimed that the state, fearing a verdict from a 1958 all-white jury, deliberately delayed until blacks were allowed to serve. Appellant offered absolutely no proof of this allegation. After appellant alleged such an improper delay, the following discussion occurred:

“THE COURT: I doubt if anybody sat down in 1958 and said we have to wait until the jury system isn’t all white.
“MR. BUCKLEY: [appellant’s counsel]: I think they may have said we can’t get a conviction.
“THE COURT: That very well may have been. This prosecution will not be successful on this evidence. (Emphasis added.)
“MR. BUCKLEY: That’s what I assume.
“THE COURT: I would almost find that as a fact for the reason of delay the State did not feel they would successfully prosecute in 58. Would you?
“MR. DUNN: [prosecution]: I would say it would be a fair statement but not the reason of the jury.”

The state also denies appellant’s assertion of improper delay in its brief and arguments before the court, claiming that the prosecution delayed because it felt it did not have enough evidence to convict in 1958 in light of the relatively weak evidence then gathered. As stated before, there is at least an implication from the record that the investigation had not closed in 1958. The court in Lovasco, supra, noting the lack of evidence on the issue in the record, accepted the arguments of the government that the government delayed for investigative reasons. The court held that, even if prejudice were shown, such delay did not violate due process. See also United States v. Surface, 5th Cir., 624 F.2d 23 (1980).

In any event, without any proof in the record, we will not assume from the record that the state intentionally delayed to gain a tactical advantage or made a knowingly reckless disregard of appellant’s ability to defend himself. Appellant’s bare allegations of improper tactical delay on the state’s part is insufficient to establish the necessary malevolent purpose. United States v. Medina-Arrellano, 5th Cir., 569 F.2d 349 (1978).

A calculated delay hurts the prosecution just as much as the defense. Since the prosecution in a criminal case has the burden of proving its case beyond a reasonable doubt and to a moral certainty, dimmed memories, evidence and unavailable witnesses have a special impact on the burden cast upon the prosecution. In light of the presumption of innocence, and the burden of proof, no prosecutor could reasonably believe that a nineteen-year delay in a case would improve the chances of a conviction. Indeed, the state lost the testimony of Captain Pattie, Commissioner Conner and Will Hall, the church guard who moved the bomb. A conviction was gained in the case inspite of the long delay. See Chambliss, supra.

We find that the pre-accusation delay did not violate due process guarantees.

Appellant also argues that there was not sufficient evidence for the jury to convict appellant. Appellant basically relies on one sentence in the record in which Lieutenant Cook, when asked if appellant had specifically authorized his boys to bomb the church, replied that appellant only stated he had unsuccessfully tried to call his boys and that he knew they had come to'Birmingham.

This court in Chambliss, supra, addressing the same issue, stated:

“We have held on numerous occasions that, where there is legal evidence from which the jury can by fair inference find the accused guilty, this Court has no right to disturb the verdict; (Alabama Digest, Criminal Law, Key 1159.2(8). Whether there is such evidence is a question of law, its weight and probative value are for the jury.
“A reviewing Court does not determine if the evidence proved defendant’s guilt beyond a reasonable doubt and to a moral certainty but rather whether there was legal evidence presented from which the jury could draw an inference of guilt; where legal evidence is presented at trial from which the jury can, by fair inference, find the accused guilty, the reviewing court will not disturb the verdict of the jury. Daniels v. State, Ala.Cr.App., 343 So.2d 566.
“In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court said:
“ ‘Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial does not constitute error.’ ”

We believe there is indeed sufficient evidence, if believed by the jury, to sustain appellant’s conviction. There is testimony that, during the meeting immediately prior to the bombing, appellant bragged that he and his boys were experts at bombing and would bomb any target for $2,000, including Reverend Shuttlesworth’s church. Appellant also at this meeting described a bomb already made matching the description of the bomb used. Appellant finally told the officers that he had been on the church grounds and studied its layout. This testimony was corroborated by a church member.

One week later the church was bombed.

There is testimony that appellant began the meeting subsequent to the bombing by claiming that his boys had done the bombing and “they wanted their money.” When asked why his boys had gone ahead with the bombing, appellant responded that they wanted to ease concern about their competence. Appellant also gave a description of the bomb used and exactly where it was originally located that matched the description given by the church guards. Finally, appellant allegedly agreed to take $1,000 for the Shuttlesworth bombing and bomb another target for the remaining $1,000.

This court has held that a defendant is charged with the foreseeable consequences of any joint enterprise or conspiracy whether he directly authorized or contemplated the act or not. Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976). Likewise, a defendant will also be held responsible for any act that a reasonable person could infer would result from such joint enterprise or conspiracy. Witherspoon v. State, Ala.Cr.App., 356 So.2d 743 (1978).

To be an accomplice in a crime one need not enter any formal agreement or express conspiracy. All that is needed is a community of purpose, and a community of purpose can be formed in a flash. Landry v. State, 56 Ala.App. 421, 321 So.2d 759 (1975). Community of purpose is normally proved by the conduct of the parties rather than by direct evidence. Stinson v. State, 55 Ala.App. 629, 318 So.2d 325, cert. denied, 294 Ala. 772, 318 So.2d 329 (1975).

Allegedly, after studying the church and its layout, appellant offered to bomb the church for a price. Appellant gave a general description of the type of bomb ultimately used. The church was bombed, appellant correctly described the bombing, and appellant demanded payment. This evidence, if believed, is certainly “legal evidence presented from which the jury could draw an inference of guilt”.

Appellant next asserts that certain questions asked appellant concerning his views of the use of violence against minorities and his views of minorities in general constituted reversible error. We do not agree.

Appellant, just prior to his questioning on this issue, emphatically stated that he had never advocated the use of violence against other segments of society. The majority of statements appellant was questioned about dealt with such use of violence. Thus the questioning was properly conducted to impeach the witness.

Also, the remaining statements, if not directly advocating violence, certainly evidenced an intense hatred and aversion towards blacks and Jews. Such questioning was proper to prove motive for the bombing. This court in Chambliss, supra, in finding that certain testimony elicited which linked appellant with the Ku Klux Klan, was proper, held that:

“In cases where, as here, the evidence is circumstantial, a wide range of testimony is admissible to show the motive of defendant for committing the crime charged. Turner v. State, 224 Ala. 5, 140 So. 447, Harden v. State, 211 Ala. 656, 101 So. 442.
“In a case where the evidence is circumstantial, evidence of motive becomes of great importance. Harden v. State, supra; Hardy v. State, 51 Ala.App. 489, 286 So.2d 899. When circumstances point to the guilt of an accused, evidence of his motivation, even though weak, is admissible.”

The record contains ample circumstantial evidence from which a jury could reasonably draw an inference of guilt. (1) Appellant himself admitted meeting the undercover agents and discussing'the bombing of the Bethel Church before the bombing occurred. (2) He further admitted that, shortly after the bombing, knowing that he had previously discussed the bombing of this church and that the church had been bombed, he agreed to meet with the undercover agents again. (3) There was testimony from a church member that appellant was seen at the church prior to the bombing. (4) Lieutenant Cook also testified that appellant had been to the church and had studied its layout. (5) There was testimony that, during the first meeting, appellant bragged about how he and “his boys” could handle any type of bombing, including bombing the Bethel Church. (6) There was also testimony that, during this first meeting, appellant gave a general description of a bomb already constructed that matched the description of the bomb ultimately used. (7) After the first meeting, the Bethel Church was bombed. (8) There was testimony that, at the second meeting, appellant told the officers that his boys had committed the bombing and wanted their money. (9) Appellant correctly described the bomb used and where it was originally placed, according to the testimony of Lieutenant Cook.

Appellant’s final contention is that Jefferson County’s “one for one” strike method, in comparison to a defendant’s “two for one” strike method in other counties, is unconstitutional in that it violates due process and equal protection under the law. This court has upheld the constitutionality of such procedure. Tucker v. State, Ala.Cr.App., 383 So.2d 579, cert. denied, 383 So.2d 586 (Ala.1980).

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

      . The lack of supporting evidence that would tend to prove that the potential witnesses would testify as appellant claims would perhaps not be considered as adverse to appellant in a situation where he had no notice of the possibility of a criminal indictment. However, the heart of appellant’s defense is the allegation that he was being “set up” or entrapped. It follows that appellant, a licensed attorney, would be aware that he would very likely be charged with the bombing some time in the future.


source: Caselaw Access Project

author: PER CURIAM. FAULKNER, Justice

license: Public Domain

text:
    Ex parte Jesse Benjamin STONER. (Re: Jesse Benjamin Stoner v. State of Alabama).
    81-709.
    Supreme Court of Alabama.
    Aug. 13, 1982.
    Jesse Benjamin Stoner, pro se.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for respondent.
   PER CURIAM.

WRIT DENIED.

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

FAULKNER, J., dissents.

FAULKNER, Justice

(dissenting).

I would grant the petition for writ of certiorari.

A bombing of a black church occurred in Jefferson County on June 29, 1958. Over 19 years later, September 26, 1977, Stoner, a white man, was indicted for the bombing and was convicted in the circuit court.

The Court of Criminal Appeals affirmed, and conceded that no explanation appears in the record justifying the 19 years’ delay. It can be inferred that the 19 years’ delay was for the State to gain a tactical advantage over Stoner. In other words, wait long enough and a climate for conviction will emerge, whereas, if Stoner had been tried within a reasonable time after the bombing, chances were greatly in his favor that he would have been acquitted. The trial judge stated, “I would almost find that as a fact for the reason of delay the State did not feel they could successfully prosecute in 1958.”

The Court of Criminal Appeals upholds the delay by implying there was a continuing investigation. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). But, the court states in its opinion, “In essence, no real reason for the delay can be found in the record.” Both Marion and Lovasco mandate that the court consider the reason for the delay, and the prejudice to the accused. Cf. United States v. West, 568 F.2d 365 (5th Cir. 1978). By denying the petition for a writ of certio-rari to the Court of Criminal Appeals, the majority of this Court have also failed to consider the reasons for the delay and the prejudice to the accused.

In my opinion Stoner has been deprived of his due process rights to a fair trial. The fundamental conceptions of justice have been discreetly “swept under the rug.”

I would grant the petition to consider whether fundamental due process of a fair trial has been denied Stoner.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Andrew Jackson DANIELS, III v. STATE.
    1 Div. 243.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied Aug. 27, 1982 Alabama Supreme Court 81-874.

      James M. Byrd and Thomas M. Haas, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty on a trial on an indictment that charged in pertinent part that defendant:

“. .. being sixteen years of age or older, did subject to sexual contact_ -[a named female whose name is not here given, in justice to her], who is less than twelve years of age, in violation of § 13A-6-66(a)(3) of the Code of Alabama.”

Said subsection of the Code provides:

“A person commits the crime of sexual abuse in the first degree if:
“He, being sixteen years or older, subjects another person to sexual contact who is less than 12 years old.”

Section 13A-6-66(b) provides that “Sexual abuse in the first degree is a Class C felony.” By § 13A-5-6(3) the punishment prescribed for a Class C felony is “not more than 10 years or less than 1 year and 1 day.” The court sentenced defendant to imprisonment for 10 years.

The term “sexual contact” as found in § 13A-6-66(a)(3) is defined in § 13A-6-60(3) as follows:

“Any touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.”

Appellant challenges the constitutionality of the quoted subsections of the Code as “unconstitutionally vague, ambiguous and indefinite.”

We find no valid criticism of the term “sexual . . . parts” of the statutory language. Any normal person sixteen years of age or older should and would know the meaning thereof. The term “or other intimate parts” is troublesome, but the language as a whole is sufficient to have advised the defendant that it included a part of the child that the evidence shows the defendant touched, i.e., her vagina. We think also that appellant’s criticism is too severe of “any touching” in arguing that it could include “the touching of another person’s clothed body with an object held or manipulated by the actor.” The touching must be construed in the light of the qualification that it be “done for the purpose of gratifying the sexual desire of either party.” We do not agree with appellant that the language “done for the purpose of gratifying the sexual desire of either party” is not sufficient to apprise defendant of the offense proscribed.

At the conclusion of the State’s evidence and just after it announced that it rested, defendant moved to exclude the evidence. At that time, the alleged victim, a girl six years of age, had testified, and a stipulation had been entered into between the parties as to the proposed testimony of another girl about the same age, who was with the alleged victim at the time and place of the occurrence. According to the stipulation as found in the transcript, the two girls “were on their way home from school . . . they were in an apartment complex general area ... a man approached them and asked them to go behind a building to allegedly look at some squirrels or rabbits, that once behind that building the man pulled down their pants and touched the genital area of both of them and that when one girl cried ... the man fled the scene.” A detective had testified prior to the motion to exclude the evidence that defendant had made a statement identifying himself as the person with the girls at the time and place of the alleged crime. Such statement was admitted in evidence after its voluntariness and all requirements for the admission of a confession had been established. Appellant does not question the admissibility of the statement. We think the evidence indicated was sufficient; it was substantial evidence that defendant had committed the crime charged in the indictment. The court was correct in overruling defendant’s motion to exclude the evidence.

The court refused two charges requested in writing by defendant, one with hypothesis and one without hypothesis, that the jury should return a verdict finding defendant not guilty by reason of insanity. The court also overruled defendant’s motion for a new trial grounded in part upon the claim that the evidence was so greatly in favor of defendant on his plea of not guilty by reason of insanity that a new trial should be granted. Appellant’s contention that the court was in error in its rulings presents an extraordinarily difficult question. Before discussing the evidence pertaining to whether defendant was sane or insane at the time of the commission of the crime, we note a change in the language as to what constitutes legal insanity that prevailed before the adoption of the present Criminal Code of Alabama (Code of Alabama 1975, Title 13A, effective January 1, 1980), which was prior to the crime involved in the instant case. Prior to January 1, 1980, and pursuant to Parsons v. State, 81 Ala. 577, 2 So. 854 (1886), the rule was established that an accused could successfully plead insanity if he:

“... was so affected by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product solely of such disease of the mind.”

The quotation is from the Commentary to Code of Alabama 1975, § 13A-3-1, for which it cites the following authorities: Streeter v. State, 278 Ala. 272, 177 So.2d 826 (1965); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957); Lakey v. State, 258 Ala. 116, 61 So.2d 117 (1952); Parsons v. State, 81 Ala. 577, 2 So.2d 854 (1886).

Alabama Code 1975, § 13A-3-1 provides: “(a) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
“(b) ‘Mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
“(c) Lack of criminal responsibility under this section is a defense. (Acts 1977, No. 607, § 501.)”

Code of Alabama 1975, § 15-16-2, which has been the codified law of Alabama since 1896 has not been changed. It provides:

“Every person over 14 years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.”

In contending that defendant fully met the burden of proof upon him and that the evidence was so strong and conclusive that defendant was insane at the time of the commission of the crime that the verdict should not stand, appellant relies heavily upon Christian v. State, Ala. 351 So.2d 623 (1977); Herbert v. State, Ala.Cr.App., 357 So.2d 683 (1977), cert. denied, Ala., 357 So.2d 690 and Sasser v. State, Ala.Cr.App., 387 So.2d 237 (1980), cert. denied, Ala., 387 So.2d 244. In each of the cases, it was held that the trial court should have charged or directed the jury to render a verdict finding the defendant not guilty by reason of insanity. To those cases so holding, can be added a fourth. Pickett v. State, 37 Ala.App. 410, 71 So.2d 102 (1954), cert. denied, Ala., 260 Ala. 699, 71 So.2d 107.

Three highly qualified psychiatrists, two employed by defendant and one employed by the State, testified as witnesses called by defendant. No psychiatrist, or other professional in the field of medicine, testified as a witness for the State. Each of the psychiatrists testified in effect that it was his opinion that at the time of the commission of the alleged crime and “as a result of mental disease or defect” the defendant lacked “substantial capacity ... to conform his conduct to the requirements of law” or, as one of them stated, there was an “irresistible impulse” to commit the particular kind of crime that he committed in the instant case. None testified that he lacked “substantial capacity to appreciate the criminality of his conduct.” The psychiatrist who had interviewed and treated the defendant over a much longer period of time than either of the other two psychiatrists testified:

“Q. Did you discuss with him the offense with which he was charged?
“A. Yes, I did.
“Q. What did he say to that, how did he respond to what he was charged with?
“A. He felt pretty embarrassed about it.
“Q. Embarrassed?
“A. Yes.
“Q. Did he recall the incident?
“A. He did.
“Q. Did he relate those incidents to you?
“A. He related several of them to me.
“Q. Was there any type of pattern or, I had to use the term modus operandi, or M.O., was there a basic pattern in the relation of those incidents as he related them to you as to how those incidents occurred?
“A. There seemed to be a connection between the amount of stress he was under at any given point in time and the frequency of occurrence.
“Q. And that would go to the point that they occurred or his first problem according to his family history occurred when he was eighteen and then again in ’72, I believe and then earlier this year?
“A. Seemed to have been something of a chronic nature that sometimes (sic) more frequently than others.
“Q. The incidents themselves, was there any similarity in the incidents, in the way they occurred and the persons involved with them?
“A. Well, they were generally, well, of course, they were all young girls, generally between the ages of, I think, the youngest might have been two or three, the oldest around six or eight, and frequently there was some sort of initiation made on the part of the Defendant towards the little girls, some sort of seductive ploy, such as offering them a toy, or wanting to talk to them about something, or something along that line.
“Q. Would asking them if they had to go to the bathroom be [a] familiar phrase he would use in each of these incidents? “A. Yes.
“Q. Did the girls being alone or an attempt by him, an overt attempt by him to isolate the young girls, would that be a recurring fact of it?
“A. Yes, I’d say so.”

There was undisputed evidence that during the three months that defendant was under continuous daily observation by medical personnel, including the psychiatrist who was the principal witness for defendant on the issue as to his insanity, defendant was thoroughly checked, and tested for physical and mental trouble. His principal medical witness testified: “Well, the conclusions reported to me were that all the tests were within normal limits and that there was no evidence of any organic pathology.” Radiological tests included an electroencephalogram. He repeatedly used the term “personality disorder” as expressive of his diagnosis of the defendant. He testified that according to the Weschler Adult Intelligence Scale, the “Draw A Person Test, Bender Gestalt Test, the Ror-schack and the Sentence Completion Test” defendant had a “normal I.Q.” There was also interspersed in his testimony, as well as in other evidence presented by defendant on the issue raised by his plea of not guilty by reason of insanity, the diagnosis of his trouble as “pedophilia,” which we understand, by the aid of dictionaries, to mean “erotic love” of an adult for children, which is derived from Eros, the pagan god of love of ancient Greece.

There was evidence of statements made by defendant after he was arrested as to some experiences he had recently had with other children similar to what occurred in the instant case. In defendant’s statement as to one of such incidents, he said: “I did not orgasm, I only got an erection.”

There was evidence other than testimony of the psychiatrists, from other highly credible and respected witnesses, including a preacher and a college professor who had for a long time observed defendant, to the effect that it appeared to them that there was “something wrong” mentally with defendant, that he was “shy and quiet,” that he did not have many friends, that he had difficulty in expressing himself and that he was “antisocial.”

It is to be observed from the testimony of the expert witnesses, particularly the psychiatrist who had professionally studied first hand the defendant for a long period of time, that their opinion that at the time of the crime he “lacked substantial capacity ... to conform his conduct to the requirements of law” was not dogmatic. By saying this, we do not mean to imply that generally dogmatism of an expert witness increases the value of his opinion. Often the reverse is true. Much depends on the circumstances. For instance, an expert witness as to the value of property could be expected to show strength of conviction that the reasonable market value of the property was not more than an amount stated, or, on the contrary, that it was not less than a stated amount, but, when giving his opinion as to what would be the reasonable market value of property, his recognition that other experts would differ with him as to the value would probably cause his opinion as to value to be expressed with less certitude and positiveness. This lack of positiveness, as commendable as it is, is to be noted in the testimony of the psychiatrist who had the best opportunity to analyze defendant’s condition, in answer to some questions asked him on direct examination as follows:

“Q. All right, sir, knowing all of that and being a doctor specializing in the field of psychiatry, I will ask you this: Was he in May of 1980 able to conform his conduct to the requirements of the law — that is the requirements of the law that he not going around putting his hand on young girls’ vagina — was he able to conform his conduct to the law, that law?
“A. I do not feel that he was.
“Q. Did he have or lack the substantial capacity to conform his conduct to the requirements of our law?
“A. I feel that he did.
“Q. He lacked that capacity?
“A. That is correct, yes.
“Q. And at the time that he was doing these acts, assuming that he did them, was he then suffering from a mental disease or defect?
“A. I feel that he was.”

Our review of the evidence leads to the conclusion that, although the evidence is convincing that defendant was “suffering from a mental disease or defect,” it is not as convincing that “as a result of mental disease or defect” defendant lacked “substantial capacity ... to conform his conduct to the requirements of law” as set forth in Code § 13A-3-l(a). Furthermore, whether any lack of substantial capacity to conform his conduct to the requirements of law was a result of mental disease or defect is made doubly questionable in the light of the statutory qualification of such mental disease or defect by Code § 13A-3-l(b), that mental disease or defect “does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

Some, if not all, reasonably minded persons could conclude from all the evidence in the case, which is generally the test whether a jury question is presented on any issue of fact even though the evidence is undisputed, that defendant as a result of mental disease or defect did not lack substantial capacity to conform his conduct to the requirements of law at the time the crime was committed. It was well within the fact-finding province of the jury to conclude that whatever irresistible impulse defendant may have had to commit the crime, or whatever incapacity he may have had to conform his conduct to the requirements of law, was not the offspring of any mental disease or defect but from baser passions of mankind, which had degenerated to unnatural lust, and that the practice thereof is controllable by every person who has the mental capacity to distinguish right from wrong, which the appellant had, according to all the evidence. It would have been an invasion of the province of the jury for the trial judge to have decided the pivotal issue in the case, instead of leaving a determination thereof to the unanimous verdict of the jury.

Among the grounds of defendant’s motion for a new trial was an averment that the “District Attorney’s Office made an agreement with the attorney for the defendant” and that the “District Attorney’s Office did not live up to said agreement.” The record indicates that this ground, as well as all other grounds, was taken into consideration by the trial judge who could well have been cognizant of the facts upon which such assertion was based, but we are not. This leaves the matter beyond our power to determine correctly, and we do not attempt to do so.

There was a ground in defendant’s motion for a new trial that charged that “the District Attorney’s office deliberately caused to be in the presence of the jury panel a number of other children, and their parents, who were called as witnesses in other cases against this defendant that were not being tried at the time this case was being tried” and that “said action by the District Attorney’s office was a deliberate attempt to prejudice the trial jury against the defendant and was highly improper and prejudicial to defendant’s right to a fair trial.” In the ground of the motion there was also the averment, “This matter was brought to the attention of the Court during the course of the trial.” The transcript contains a reference to the alleged matter and shows that to some extent, at least, it was “brought to the attention of the Court during the course of the trial.” However, nothing is shown in the record proper or in the transcript that is sufficient for us to determine therefrom that such ground of the complaint was substantiated.

We find from the record proper and the transcript of the proceedings that there was no error 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: BARRON, Judge.

text:
    Curtis MARSH v. STATE.
    1 Div. 317.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-872.
    James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Curtis Marsh was indicted by a Mobile County Grand Jury in June of 1981 for the murder of Herbert Belt, and was tried and convicted by a jury in August of 1981. The trial court entered a judgment of conviction and sentenced Marsh to 25 years in the penitentiary. Hence this appeal.

During the early morning hours of March 23, 1981, appellant was in a bar, known as Eddie’s Place, located on Davis Avenue in Mobile County and owned by the victim, Herbert Belt. Appellant attempted to go around behind the bar counter and was stopped by Belt who used a gun to put appellant out of the bar. Appellant came back into the bar and Belt put him out again. Appellant once again reentered the bar and went to a table where James Bur-rell was sitting with his head slumped down on the table, apparently sleeping. Appellant attempted to remove something from Burrell’s pocket, when Burrell’s brother, Joe Burrell, intervened. A fight ensued between appellant and Joe Burrell, which was broken up by Belt. Appellant again left the bar.

Another witness, Joe Bronik, then got into a fight with Joe Burrell, and Belt broke up this fight. Bronik then hit Burrell over the head with a club or broomstick or chair. At that point, Belt called the police. Before the police arrived, appellant reentered the bar, aimed a pistol and shot Joe Burrell, injuring him. While appellant was backing out the door to the bar, Belt fired at appellant, hitting him twice. Appellant then shot Belt, who died as a result of the gunshot wound.

Appellant urges reversal on the grounds that (1) the trial judge wrongfully refused to recuse himself, (2) the oral charge to the jury was erroneous, and (3) inadmissible evidence was permitted over timely objection.

I

Appellant alleges that the trial court possessed a personal interest, bias and prejudice in the case, arising by virtue of the court’s acquaintance or friendship with the deceased, and evidenced by certain statements prior to the trial attributed to the court. Appellant timely filed a motion to recuse, which was denied. We find no error in denying the motion.

The Alabama Canons of Judicial Ethics, Canon 3, provides standards in pertinent part as follows:

“C. Disqualification:
“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;”

Appellant relies heavily on remarks of the trial court to the effect that “this was a senseless killing” and “twenty years was an appropriate sentence.” These remarks were made in an informal conversation in the judge’s chambers in a plea bargaining session wherein the State was offering 20 years and appellant’s counsel was offering a lesser sentence. In that context, we consider the trial court’s remarks to be nothing more than a rejection of the offer made by appellant’s counsel in the plea bargaining matter.

Prejudice on the part of a judge should not be presumed. Duncan v. Sherrill, 341 So.2d 946 (Ala.1977).

There is a presumption that a judge or one sitting in a judicial capacity is qualified and unbiased and one who alleges that a judge is unqualified or biased has a substantial burden to show ground therefor. Schillaci v. State, 347 So.2d 556 (Ala.Cr. App.1977).

Appellant falls far short of meeting the required burden of proof.

II

The essential portion of the indictment charged that appellant “did intentionally cause the death of another person, Herbert Belt, by shooting him with a gun, in violation of Section 13A-6-2 of the Code of Alabama.” The trial court’s oral charge to the jury included the alternative charge of “reckless murder” as provided by § 13A-6-2(a)(2), Code 1975. Appellant urges that this constitutes a fatal variance with the indictment in that inclusion of the word “intentionally” in the indictment restricts not only the proof but also the jury instructions to the provisions to § 13A-6-2(a)(1), Code 1975. We do not agree.

Appellant furnished no authority for his theory of variances between the indictment and the jury instructions, and we were unable to locate any such authority.

We find no variance between the indictment and the oral charge. The indictment charged that appellant intentionally killed Herbert Belt in violation of § 13A-6-2, and the oral charge correctly included the alternative provision of § 13A-6-2. The trial court was obligated to charge on the entire statute should the proof so warrant, as in the case at bar.

The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted. Proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled. House v. State, 380 So.2d 940 (Ala.1979). Appellant here was charged with intentionally causing the death of another person in violation of § 13A-6-2, Code 1975. Certainly, this clearly gives the appellant sufficient notice of the charge to enable him to defend himself at trial.

Ill

Finally, appellant urges reversal on the grounds that testimony was improperly permitted concerning a fight between Joe Bronik and Joe Burrell which occurred outside the presence of appellant. The record reveals, on page 15, that such testimony was elicited from Joe Burrell, without objection by appellant. Consequently, the matter is not reserved for review by this court.

It should be noted that there are strong indications that testimony concerning the Bronik-Burrell fight is clearly within the res gestae and is admissible. The fight between appellant and Joe Burrell apparently provoked Bronik to become involved. A short time thereafter appellant reentered the bar and shot and injured Bur-rell, prompting Belt to fire his gun at appellant. Appellant, in turn, shot Belt, who died as a result of the gunshot wound. The sequence of events strongly suggests a lack of error in the admission of the testimony.

For the reasons stated, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Alonzo LASLEY v. STATE.
    1 Div. 342.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-848.

      J. D. Quinlivan, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for receiving stolen property in the second degree. Alabama Code 1975, Section 13A-8-18 (Amended 1977). Sentence was twenty years’ imprisonment under the Habitual Felony Offender Act. Code, Section 13A-5-9. One issue is presented on appeal.

The defendant maintains that the State failed to prove that the market value of the stolen property, Code Section 13A-8-l(14), was between $100.00 and $1,000.00 at the time the property was stolen.

The evidence shows that on the 8th of January, 1981, Ethel Mae Taylor’s home was burglarized and among the property taken were two television sets and one shotgun. Mrs. Taylor testified that she had no opinion of the present value of this property-

She did testify that both sets were black and white, that they both worked, that she purchased one set in 1974 and the other in 1980, and originally paid $500.00 for one set and $600.00 for the other.

Lieutenant G. E. Robinson of the Prich-ard Police Department testified that the fair market value of the type .12 gauge shotgun that was stolen was between $60.00 and $80.00.

Defense counsel moved to exclude the State’s evidence on the ground that “there is no evidence whatsoever . . . that the value of the items taken were more than $100.00.”

“As with the crimes of theft of property and theft of services, the value of the thing stolen is a primary factor in determining the degree” of the crime of receiving stolen property. Commentary following Code, Section 13A-8-19. Value is defined as the “market value of the property at the time and place of the criminal act.” Code Section 13A-8-l(14). “When the value of property cannot be ascertained ..., its value shall be deemed to be an amount not exceeding $100.00.” Code Section 13A-8-1(14).

Just as the corpus delicti of the crime charged and the defendant’s criminal agency may be established by circumstantial evidence, Stewart v. State, 350 So.2d 764, 766 (Ala.Cr.App.1977), so the value of stolen property may be proven by circumstantial evidence. 52A C.J.S. Larceny Section 133 (1968). Jurors may not infer the existence of value from an inspection of the thing itself, or from a description of it by witnesses, as this allows the jurors to become witnesses without being sworn and subject to examination, Mitchell v. State, 24 Ala.App. 570, 139 So. 109 (1932). This rule does not apply where the record reveals the “data” the jury used to assess value. Lucas v. State, 96 Ala. 51, 53, 11 So. 216 (1891). In Mitchell, there was no evidence tending to prove the value of the property alleged to have been stolen. 24 Ala.App. at 570, 139 So. 109.

We hold that the evidence “as to what the stolen property cost at the time it was purchased by its owner” and “the serviceability of the property at the time it was allegedly stolen” furnished an adequate, if not substantial, basis for a finding by the jury that the property was worth more than $100.00. Johnson v. State, 374 So.2d 417, 420 (Ala.Cr.App.1979). See also Deep v. State, 414 So.2d 141 (Ala.Cr.App., 3 Div. 391, Ms. January 26, 1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Jackie Earl BROOKS v. STATE.
    3 Div. 358.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-793.

      Benjamin E. Pool, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Selling cocaine; six years.

On January 24,1980, two undercover officers of the Montgomery Police Department made a buy of a substance identified at trial as cocaine from appellant and one Bob Holmes, alias Boy Mays. At trial, both police officers identified appellant as the person who participated in the sale. Testifying in his own behalf, appellant denied that he was present on the evening in question, that he had ever seen the officers, or that he had sold the cocaine.

I

Appellant contends that the trial court erred when it denied his request to inspect and use, for cross-examination purposes, the written incident report made by Montgomery police officer Willie Lewis Echols. Appellant’s trial attorney argued that as a matter of due process he was entitled to see the report to determine whether there were inconsistencies between it and Officer Echols’ testimony on the stand.

It is clear that the defense has the right to examine a memorandum used by the witness on the stand to refresh his recollection, Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973). Here, although the officer testified that he had reviewed the report prior to his testimony, he did not have the memorandum with him while he testified nor did he use it on the stand to refresh his recollection. Under these circumstances, the defense was not entitled to examine the writing in question. See Russell v. State, 365 So.2d 343 (Ala.Cr.App.1978); Cooks v. State, supra.

II

Appellant claims that his cross-examination of Officer Echols was unduly restricted when the trial court sustained the State’s objection to the following questions:

“Q. [By defense counsel] Now Steve Schmitt, my partner, has been sitting here in the courtroom with me. What color pants did he have on?
“MS. Brooks: [Assistant District Attorney] Objection.
“THE COURT: Sustained.
“MR. HORNSBY: Your Honor, I have a right to test this witness’s memory.
“Q. I’ll ask you: My partner who was sitting here just a minute ago, what color coat did he have on?
“MS. BROOKS: Objection.
“THE COURT: Sustained.
“Q. What color hair did he have?
“MS. BROOKS: Objection.
“THE COURT: Sustained.
“MR. HORNSBY: No further questions.”

Although it is permissible to interrogate a witness on cross-examination about irrelevant matters in order to test his memory or power of observation, the latitude of the questioning rests “largely, if not exclusively within the sound discretion of the trial court,” Cox v. State, 162 Ala. 66, 50 So. 398 (1909); Wright v. State, 49 Ala.App. 539, 274 So.2d 95 (1973). In view of counsel’s prior extensive cross-examination of the officer regarding his ability to recall the events on the night in question, we do not believe the court’s rulings here manifested an abuse of discretion.

III

During appellant’s cross-examination of the forensic witness who identified the controlled substance as cocaine, counsel began reading from a book on drug testing methods, and the trial court sustained the State’s objection.

Although a witness may be cross-examined from a learned treatise, the proper predicate must first be established, see Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953); C. Gamble, McElroy’s Alabama Evidence § 258.01(3) (3d ed. 1977). Here, there was no predicate and the ruling was proper.

IV

Appellant insists that the trial court erred by permitting the State, on re-direct examination of Officer Echols, to elicit the details of a conversation between Officer Echols and Bob Mays, out of the hearing of the appellant, in which Mays referred to the appellant as “Coke Man.” The record indicates, however, that the conversation was first brought out by appellant’s counsel on cross-examination of Officer Echols.

If one party proves part of a conversation, the opponent is entitled to prove the remainder of the conversation. Stockard v. State, 391 So.2d 1060 (Ala.1980); C. Gamble, McElroys’s Alabama Evidence § 316.01 (3d ed. 1977). There was no error here.

V

Appellant argues that the trial court erred by failing to exclude a non-responsive answer. During appellant’s cross-examination of Officer Echols, the following occurred:

“Q. [By defense counsel] What caused you to stop that night on Traction Avenue?
“A. Well, that particular night we knew drugs were being sold up there. We knew—
“MR. HORNSBY: Objection and move to exclude what he knew, Your Honor.
“THE COURT: Overruled. He’s answering your question.
“MR. HORNSBY: My question is: Why did you stop? That wasn’t in answer to that question, respectfully.
“Q. Why did you stop?
“A. We knew drugs were being sold in that particular area and—
“MR. HORNSBY: We now move to exclude that particular answer as not being responsive to the question, highly prejudicial and move for a mistrial.
“THE COURT: Overrule your objection. Motion for mistrial is denied.”

The trial judge is required to rule only on the stated grounds for an objection, and grounds not stated are deemed waived. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). A specific ground of objection waives all other grounds, Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979).

Although the answer may have been inadmissible for another reason, it was responsive to the question asked, and the trial court was not in error by overruling the motion to strike out and denying the motion for mistrial.

VI

Appellant asserts that his requested charges on entrapment were erroneously refused. However, the defense of entrapment is not available to an accused who denies that he committed the offense charged. McCarroll v. State, 294 Ala. 87, 812 So.2d 382 (1975).

VII

Appellant complains of error in the refusal of his written requested charge concerning the jury’s rejection of the testimony of a witness who willfully testifies falsely to a material fact. Appellant, however, did not object, with a statement of supporting grounds, to the refusal of the charge, and there is no longer an “automatic exception” to the refusal of written charges, Allen v. State, 414 So.2d 989 (Ala.Cr.App., 1981).

Appellant also contends that the trial court’s oral charge on the same subject was erroneous because it omitted the word “willfully.” While it is true that only the testimony of a willfully false-swearing witness may be disregarded, Pinkerton v. State, 246 Ala. 540, 22 So.2d 113 (1945); Crumpton v. State, 402 So.2d 1081 (Ala.Cr. App.), cert. denied, 402 So.2d 1088 (Ala. 1981), counsel must, in order to preserve the error for review, except to the court’s oral charge and point out specifically the matter complained of before the jury retires, Pinkerton v. State, supra; Crumpton v. State, supra.

The objection must “select and recite what the court said, and thus specifically bring to the attention of the trial court” the error in the oral charge. Burns v. State, 57 Ala.App. 281, 327 So.2d 920 (1975), cert. denied, 295 Ala. 423, 327 So.2d 927 (1976). Here, in the absence of an objection to the court’s instruction regarding the credibility of witnesses, no error was preserved.

VIII

Appellant maintains that the court erred by refusing his requested charge concerning the good character of the accused. The record, however, contains no evidence of appellant’s character, good or bad.

One witness testified that he had never known appellant to possess or sell cocaine, but this testimony was not evidence of character, which is provable, as a general rule, only by evidence of general reputation. C. Gamble, McElroy’s Alabama Evidence § 27.01 (3d ed. 1977).

In the absence of any evidence of appellant’s character, the charge was abstract and its refusal was not error. Howard v. State, 340 So.2d 838 (Ala.Cr.App.), cert. denied, 340 So.2d 840 (Ala.1976).

IX

Appellant complains of error in the overruling of his objections to certain remarks made by the State in opening argument. The argument, however, is not recorded and we are unable to determine its content or effect. See Williford v. State, 365 So.2d 1257 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1258 (Ala.1979).

We have searched the record for error and have found none. The judgment of conviction by the Montgomery Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Robert Edwin THOMAS, alias v. STATE.
    6 Div. 557, 653.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-863.
    J. Mark White of Smith, White & Hynds, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Peggy Schmitz, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

This appeal is here upon consolidation of two convictions of robbery in the first degree arising from the same fact situation. Appellant was tried before a jury and convicted in the first case and sentenced to 20 years’ imprisonment. In the second case, the facts were stipulated and submitted to the trial judge, who found appellant guilty and sentenced him to 20 years’ imprisonment. The cases were consolidated to allow appellant to raise the issue of his defense of mental disease at the time the robberies were committed.

Jimmy Wayne Thomas testified he was the manager of the Winn-Dixie store in the Brookwood Convenience Center on April 18, 1980. At approximately 3:30 P.M. that day, a black man, identified by Thomas at trial as the appellant, tried to push his way into Mr. Thomas’ office, and then stated “it was a stick up and he would blow my damn head off.” A struggle between the witness and the appellant then ensued over the appellant’s weapon. The gun fired twice, hitting Mr. Thomas in the head and shoulder, respectively. After some more scuffling, the appellant shot Mr. Thomas again, wounding him in the stomach. The appellant then unsuccessfully attempted to open the safe, which contained several thousand dollars, after which he went out into the store and attempted to open the cash registers by beating upon them. Mr. Thomas stated appellant’s speech was clear when he spoke to him that day, and that appellant’s eyes did not appear unusual in any way. The witness was shown a weapon and identified it as appearing to be the same weapon with which he had been shot.

Ernest C. Kendrick, Jr. testified he was in the parking lot outside of the Brookwood Winn-Dixie on April 18, 1980 at approximately 3:30 P.M. He had gone to his truck to get his pistol after having heard of the robbery at the Winn-Dixie store. He entered his truck and drove it into view of the entrance to the Winn-Dixie. As he watched, a black man exited the store at a walking pace, followed at some distance by the store employees. Mr. Kendrick moved his truck to keep the man in view, and saw him approach the driver in an automobile with three occupants. The driver got out, and the man got into the vehicle. Mr. Kendrick then pulled his truck in front of the other vehicle, pulled out his pistol, and aimed it at the man. Kendrick ordered him to exit the vehicle, and the two other occupants got out and ran. The man then exited the vehicle with his hands raised, holding a pistol in one hand. The man then said “I am not going to shoot you, man, but you are going to have to shoot me, because I am not going back to jail.” Mr. Kendrick observed the police approaching, and then the black man got back into the vehicle and backed it into another automobile, and drove away with the police in pursuit. Mr. Kendrick identified the appellant as the same man whom he had observed with the gun on April 18, 1980. He stated appellant appeared to “move fine” that day and did not slur his words when he spoke.

Johnny Thacker, a Homewood police officer, testified he responded to a call to the Winn-Dixie on April 18, 1980. Upon arrival, he was flagged down by a Winn-Dixie employee who pointed out a vehicle in which the robber was attempting to flee. As he approached the vehicle, it backed out of the parking space and headed west. Officer Thacker turned on his light and siren, and the suspect accelerated. As the suspect’s vehicle turned, Officer Thacker began to ram it with his vehicle, and continued to do so until the suspect was forced off the road into a line marker. The suspect abandoned the vehicle and fled on foot, followed by Officer Thacker. Thacker ordered the suspect to halt at gun point, and then took him into custody. Officer Thacker recovered a Charter Arms undercover Model .38 from the vehicle which he identified at trial. He also identified appellant as the same man he apprehended on April 18, 1980. Officer Thacker identified a piece of paper as one he received from the appellant at the Homewood Police Department. The paper contained the words “This is a stick up.”

Officer John Tully observed the appellant for one hour at the Homewood Police Department, directly after the robbery, beginning at approximately 4:55 p. m. on August 18, 1980. In his opinion, appellant did not appear to be intoxicated.

The appellant moved to exclude the State’s evidence at the close of the State’s case. The motion was denied, and appellant called Dr. Robert Estock to testify. Dr. Estock, a psychiatrist and professor of psychiatry at the University of Alabama Medical School, examined appellant on September 15, 1980 at the Jefferson County Jail. Appellant told Dr. Estock he had a long history of drug use, and that he used heroin while in the army. He had also entered a drug treatment program and received counseling before being discharged from the army on January 29,1980. Appellant told Dr. Estock he had resumed his drug habit after discharge from the army, and that he was high on drugs on the day the robbery occurred, having taken Talwin, Pyribenzamine, LSD, and wine. Dr. Estock stated that an organic mental disorder, caused by some chemical or physical effect on the brain, can cause mental illness. Drugs, such as those the appellant stated he took on the day of the robbery, could cause such an organic mental disorder. A person’s thinking processes, judgment, and memory would be temporarily affected by the drug usage. Based upon the information appellant gave Dr. Estock, the doctor formed the opinion that at the time of the robbery, appellant was experiencing accute intoxication, secondary to the ingestion of drugs, which could have influenced appellant’s ability to adhere to the law, even though appellant may have known the wrongfulness of his act.

On cross-examination, Dr. Estock said he found no evidence of any psychosis in his examination of appellant, and that appellant possessed normal intelligence. He stated that if appellant had taken the kind and amount of drugs he indicated he took on the day of the robbery, that he would generally appear intoxicated to a lay person. Further, he stated other equally qualified psychiatrists could differ with his evaluation of the appellant. He also stated that if what the appellant told him was not the truth, it would change his opinion and diagnosis of appellant’s mental competency on the day of the robbery.

The appellant, testifying on his own behalf, stated he was twenty-three years old at the time of trial. He corroborated Dr. Estock’s testimony concerning the drugs he allegedly took on the day the robbery occurred. Appellant stated he could not deny having committed the crime for which he was indicated, because he had no first-hand personal recollection of the events that occurred on the afternoon of April 18, 1980. Appellant denied that he recognized the weapon used in the crime, and stated he did not know from where it was obtained.

Appellant’s only contention on appeal is that the jury arbitrarily rejected the overwhelming evidence of appellant’s mental disease, and therefore the verdict was contrary to the great weight of evidence presented at trial.

The criteria for determining whether the appellant has carried his burden of proof in sustaining the affirmative defense of insanity, are set forth in Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978), as follows:

“1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
“4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.”

There is one exception to the general rules which can require a reversal of the jury determination to convict the appellant. Where the evidence of the appellant’s insanity is both overwhelming and uncontra-dicted, the trial court should instruct the jury that the appellant has overcome the statutory presumption of sanity. Smith v. State, 411 So.2d 839, (Ala.Cr.App.1981). After careful review, we find that the evidence presented at trial below was neither overwhelming nor uncontradicted. Dr. Es-tock’s testimony concerning mental disease was predicated upon the assumed veracity of appellant’s assertion that he took drugs on the day of the crime. The jury could have rejected the truthfulness of appellant’s assertion that he took the drugs.

Additionally, Dr. Estock testified that if appellant took the drugs, he could have been recognized by lay persons as appearing to be intoxicated. Witnesses who testified as to their observation of appellant during the time of the robbery and immediately thereafter, testified he did not appear to be affected. Although Dr. Estock was the only expert witness to testify, even undisputed expert medical testimony is not conclusive upon the jury, but is to be weighed like all other evidence. While expert medical testimony may not be arbitrarily ignored, it may be rejected by the jury, just as any other evidence. Bowen v. State, 386 So.2d 489 (Ala.Cr.App.), cert. denied, 386 So.2d 492 (Ala.1980); Graham v. State, 383 So.2d 892 (Ala.Cr.App.), 383 So.2d 895 (Ala.1980). The evidence of insanity in the instant case was neither overwhelming nor uncontradicted. The statutory presumption of sanity was not overcome, and therefore the jury verdict was not contrary to the preponderence of evidence.

We have examined the record and find no error, therefore; the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.