text:
    Vonda Darlene PROCTOR v. STATE of Alabama ex rel. Dwight DUKE, District Attorney.
    Civ. 2405.
    Court of Civil Appeals of Alabama.
    Oct. 8, 1980.
    Robert L. Hodges of Campbell & Hodges, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The State of Alabama sued Charles Michael Proctor and a 1950 Chevrolet pickup truck seeking to condemn the vehicle because of the illegal transportation of marijuana therein. Mr. Proctor did not contest its condemnation; however his estranged wife, Mrs. Vonda Darlene Proctor, intervened and claimed to be its owner. After an ore tenus trial, the circuit judge, without stating the reasons therefor, found that Mrs. Proctor’s claim was without merit and denied it. She appeals. We affirm.

At the hearing it was stipulated that the truck, on August 27, 1979, was being used for the purpose of transporting marijuana. The claimant testified that her borrowed money from their joint bank account was utilized to purchase the truck in 1976 for $325, and that she later spent $175 of her funds for a motor for that vehicle. She did not bring to court the tag receipt from the seller of the truck by means of which the title to the vehicle was transferred. She admitted that the license tag for the pickup had been maintained in the name of her husband, she having initially purchased the tag in his name. Mr. Proctor primarily used the truck, it being his means of transportation. He retained its possession when the couple separated nine months prior to the trial in this case.

This proof of registration created a presumption that Mr. Proctor was the owner of the truck. State Farm Mutual Automobile Insurance Co. v. General Mutual Insurance Co., 282 Ala. 212, 210 So.2d 688 (1968); Stanley v. Hayes, 276 Ala. 532, 165 So.2d 84 (1964). This presumption is rebut-table, but it serves as evidence until it is overcome by “strong, clear and undisputed evidence.” Thompson v. Havard, 285 Ala. 718, 235 So.2d 853 (1970). The trial judge was faced with a question of fact as to the ownership of the truck, and he could have readily ascertained that the claimant failed to meet her burden of overcoming that presumption especially in view of the possession and use of the truck as well as her admission that she, and not her husband, originally purchased the tag in his name. The learned trial judge was not clearly and palpably wrong.

Since the evidence was supportive of the general judgment of the trial court as to Mr. Proctor’s ownership of the truck, we need not decide nor discuss other issues raised by the appellant. Gamble v. Webb Quarterback Club, Ala.Civ.App., 386 So.2d 455 (1980). Nevertheless we note that if she was not the pickup’s owner, Mrs. Proctor did not have standing to attack its condemnation and her lack of consent or knowledge of any illegal use of the truck would be immaterial.

The foregoing opinion was prepared by retired circuit judge Edward N. Scruggs, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author:
LEIGH M. CLARK, Retired Circuit Judge.
      BOWEN, Judge,

license: Public Domain

text:
    Arthur James WELCH v. CITY OF BIRMINGHAM.
    6 Div. 349.
    Court of Criminal Appeals of Alabama.
    Oct. 7. 1980.

      William Conway and Fred Blanton, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted in each of five separate cases (CC 80-00661 through CC 80-00665) in which he was charged with selling an alcoholic beverage without a license. He had been previously convicted in each case in the Municipal Court of the City of Birmingham and had appealed to the Circuit Court of Jefferson County and demanded a jury trial. Before the trial started, the trial court consolidated for trial all of the five cases, over the objection of defendant. During the process of interrogating the panel of jurors from which the jury to try the case was selected, the following occurred:

“THE COURT: As I call your name, please stand and give your name, your address, where you work, and if you have a spouse who works, where your spouse works. That’s name, address, employment, and employment of spouse, if any. “(The Court called the roll and the prospective jurors complied with the order of the Court, during which the proceedings were as follows:)
“JUROR WILSON: I live at 1356 Gibson Drive in Forestdale. I’m a clerk in the engineering department of the City of Birmingham. My husband is a retired life insurance salesman.
“MR. CONWAY: We challenge for cause.
“THE COURT: On the basis of her employment?
“MR. CONWAY: Yes, sir.
“THE COURT: Overruled.
“MR. CONWAY: This lady here, Robbie M. Wilson, I believe you said you work for the City of Birmingham?
“JUROR WILSON: Yes, sir.
“MR. CONWAY: Let the record show that No. 220, Robbie M. Wilson, is an employee of the City of Birmingham. And in what capacity?
“JUROR WILSON: I’m a clerk in the engineering department.
“MR. CONWAY: Clerk in the engineering department. And we challenge for cause, and His Honor has denied the challenge, and we reserve an exception.
“THE COURT: All right. I overrule it.”

It is understood that the jury remained on the panel from which the jury that tried the case was selected by the process of striking.

A major ground of insistence on appeal is that the trial court erred in overruling defendant’s challenge for cause of the juror employed by the City of Birmingham as stated. He relies largely upon Lightfoot v. City of Birmingham, 36 Ala.App. 77, 52 So.2d 398 (1951) and Shapiro v. City of Birmingham, 30 Ala.App. 563, 10 So.2d 38 (1942), in which it was held that it was reversible error for the trial court to overrule a challenge for cause of a prospective juror who at the time was an employee of the city of Birmingham. In taking issue with appellant on the point, appellee relies upon McAdory v. State, 37 Ala.App. 349, 68 So.2d 68 (1953) and Brown v. State, 37 Ala.App. 516, 74 So.2d 273, aff'd 261 Ala. 696, 74 So.2d 277 in which it was held that in a prosecution by the State of Alabama, the trial court was not in error in overruling defendant’s challenge for cause of a prospective juror who was employed at the time by the state of Alabama. In attempting to distinguish between cases in which it was held that the juror in question was subject to the challenge for cause and those in which it was held that he was not, appel-lee states in its brief:

“The cases he recites in support of this contention were decided in 1942 and 1951 by the Alabama Court of Appeals. However, several years later in 1953 and 1954 the Alabama Court of Appeals held that bias would not be implied as a matter of law merely on the basis of employment by the State where the employee is in no manner involved in the present prosecution.”

We prefer the language of, and the reason for, the distinction made by Judge Carr in McAdory v. State, supra, at 68 So.2d 69:

“It is our view that these authorities [Shapiro v. City of Birmingham and Lightfoot v. City of Birmingham] are not in point or controlling. These prosecutions were quasi criminal in nature. The municipality was a party to the cause. Therefore, we held that the situation was in effect analogous to a civil action against a city. City of Birmingham v. Gordon, 167 Ala. 334, 52 So. 430.
“ ‘Prosecution’ is a term of criminal law. It is descriptive of the means adopted to bring an accused to justice by due process of law. It is a proceeding in which the whole community, considered as a community in its social capacity, is involved. In this aspect society is designated or described as ‘The State’, ‘The People’, ‘The Commonwealth.’ The ‘State,’ etc., is acting simply as the instrument of the public in enforcing penal laws in order that society may be protected from infractions thereof.
“If appellant’s insistence were extended to an ultimate rationale, each citizen of a State would be disqualified to serve as a juror in a criminal prosecution. What possible interest has a State employee merely as such, different from that of any citizen who desires to see crime properly punished?”

There has been no change in the principle stated and applied in Shapiro, supra, and Lightfoot, supra, to the effect that employment of a juror by a party to litigation is in and of itself generally calculated to affect adversely the desirable balance one should have as a juror and for that reason a juror employed by a municipality is subject to challenges for cause in a case in which the municipality is a party. It follows that the trial court was in error in overruling defendant’s challenge for cause of the particular juror.

We do not agree with appellant’s contention that the complaint in any of the five cases was subject to demurrer on the ground that it failed to state the name of the person to whom the defendant allegedly sold an alcoholic beverage. Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973) and Manson v. State, Ala.Cr.App., 349 So.2d 67 (1977) are to the contrary in prosecutions for the sale of a controlled substance and a sale involving a transaction in securities respectively.

In view of the necessity for a reversal for the reasons stated and the probability that the two other issues presented by appellant will not arise again, we make no determination of them at this time.

For the error indicated, the judgment in each of the cases from which this appeal was taken should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur except BOWEN, J., dissents.

BOWEN, Judge,

dissenting.

The majority states that a municipal employee is subject to challenge for cause as a juror to try a case in which the prosecution is based on a violation of an ordinance of that municipality. Lightfoot v. City of Birmingham, 36 Ala.App. 77, 52 So.2d 398 (1951), Shapiro v. City of Birmingham, 30 Ala.App. 563, 10 So.2d 38 (1942), but that bias would not be implied of a state employee in a prosecution involving a violation of the criminal law of the State. Thigpen v. State, 355 So.2d 392, 398 (Ala.Cr.App.), affirmed, 355 So.2d 400 (Ala.1977), McAdory v. State, 37 Ala.App. 349, 68 So.2d 68 (1953). I see no valid distinction justifying the differentiation.

“Government” or “public” employees should be distinguished from “private” employees.

“Generally, on the basis of interest, the relation of employer and employee or master and servant between a party to an action and a prospective juror is sufficient ground for a challenge for cause.”
if: % ¡k sfc ¡J:
“Government employees are not disqualified per se for jury service even in a case where the government is a party, regardless of whether the case is civil or criminal.”

47 Am.Jur.2d, Jury §§ 326, 327 (1969). If a city employee is subject to a challenge for cause in a case involving a criminal violation of a municipal ordinance, so should a state employee be subject to a challenge for cause in a case involving a violation of the criminal laws of the State.

I find no fault with Shapiro, supra, where a city police officer was subject to challenge for cause in a prosecution for the violation of a city ordinance. However, there the challenge for cause was proper not only because the officer was an employee of the city or only because he was a policeman, Brackin v. State, 31 Ala.App. 228, 14 So.2d 383 (1943), Annot. 72 A.L.R.3d 895 (1976), but the challenge for cause should have been granted due to the nature of the officer’s employment with the city and the type of case involved.

Here the prosecution was for selling an alcoholic beverage without a license. The challenged venireman was a clerk in the city engineering department. I do not think that this particular relationship in and of itself could be said, as a matter of law, to give rise to an implied bias on the part of the juror. Consequently, I do not think that the trial judge abused his discretion in refusing to grant the defendant’s challenge for cause.

With high respect for the opinions of my learned brothers, yet for the reasons stated, I dissent.


author: TYSON, Judge.

text:
    Willie McDANIEL v. STATE.
    7 Div. 725.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      A1 Shumaker of Burns, Shumaker & Davis, Centre, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Qen., for ap-pellee.
   TYSON, Judge.

Willie McDaniel was charged by indictment with the unlawful possession of Meth-aqualone, a controlled substance, contrary to law. The jury found the appellant “guilty as charged,” and the trial court entered judgment which set sentence at two years imprisonment in the penitentiary.

Billy Ray, a deputy sheriff of Cherokee County, appeared before District Judge William Lumpkin and gave an affidavit indicating that two informants, within the forty-eight hour period just prior to making the affidavit, had given him information, stating that beer, Marijuana and Methaqualone were being sold at the residence of Willie McDaniel, the appellant. He stated that the two informants had been to the residence and had bought Quaalude (which contained Methaqualone), Marijuana and beer within the forty-eight hours pre*. ceding August 8, 1979.

Upon receiving the search warrant from Judge Lumpkin, Deputy Ray, accompanied by ABC Agent Leonard Kiser, and ABC Agent L. P. Wetzel, went to the home of Willie McDaniel between 3:30 and 4:00 o’clock on the afternoon of Friday, August 3, 1979. The officers found McDaniel seated inside a cinder block building just to the rear of his residence with a companion named Robert L. Davis. Deputy Ray then read the search warrant to McDaniel and handed him a copy, whereupon Smith, Ray, and Kiser went inside the building and began looking in coolers and deep freeze within the cinder block building. The search warrant specifically authorized a search of the appellant’s home and the cinder block building located on the premises.

Inside the building, Ray found a brown paper bag in the cooler. He directed McDaniel to open the lid and remove the brown bag, stating to the appellant, “Go ahead and get your money,” and McDaniel at that point picked up the bag and told Deputy Ray, “Forget about the sack,” to which Ray replied, “Hand the sack to me, I need to see what’s in it.” He stated that Agent Kiser came in the building at this time and he opened the sack and observed some off-white rounded tablets which were scored lying loose in the brown bag. Ray showed these tablets to both Smith and Kiser at the doorway to the building.

Upon the three officers’ return to the courthouse, the tablets, some eighteen in number, and stamped “Rorer 714,” were placed in a manila envelope and labeled, then taken by Investigator Danny Smith, who kept the envelope locked in his footlocker from August 3 to August 6, 1979, at which time Smith delivered the envelope to Criminalist Joseph Gary Wallace at the Department of Forensic Sciences in Jacksonville.

Criminalist Joseph Gary Wallace testified he received the manila envelope containing the eighteen off-white tablets from County Investigator Danny Smith on August 6, 1979. Wallace made several tests and determined that these tablets contained Meth-aqualone, which was a controlled substance under Alabama law.

ABC Agent Kiser corroborated Deputy Ray’s and Investigator Smith’s testimony.

The appellant’s motion to exclude the State’s evidence was overruled.

Robert L. Davis identified himself as a friend of the appellant, Willie McDaniel. He was seated inside the cinder block building with McDaniel on the afternoon of August 3, 1979, when the several officers came to make a search. Both Davis and McDaniel admitted the officers read them the warrant and that they handed a copy of the search warrant to McDaniel before making a search. Robert Davis and McDaniel contended that the brown paper bag contained “cash money,” belonging to McDaniel, and that each of them looked inside the bag as it was handed to Deputy Ray, and that there were no white tablets or any other kind of drugs contained in the bag. McDaniel insisted that he “did not fool around with drugs.”

On cross-examination, McDaniel admitted a number of arrests and several convictions for “misdemeanors,” but he could not remember how many.

There was no exception to the oral charge of the court.

I

The appellant contends that he was denied a thorough and sifting cross-examination of Deputy Ray and Investigator Smith as to the information which they gave Judge Lumpkin and which was contained in the affidavit made before Judge Lumpkin, which constituted the basis for the search warrant.

Specifically, the appellant contends he was entitled to know the identity of informants one and two, whether or not they were paid by any state or governmental agency, and where the informants were employed.

The trial court allowed the two officers to state that they had received the information from the two informants within the forty-eight hours immediately preceding the filing of the affidavit. Informant No. Two indicated that he had purchased six twelve-ounce cans of beer from Willie McDaniel at his home; Informant No. Two was under thirty years of age and had purchased drugs from Willie McDaniel. The officers also indicated that Informant No. Two had voluntarily given this information to the officers and stated that the white tablets were known as Quaalude and contained Methaqualone. Informant No. One had identified the white tablets as being scored on one side and stamped on the other side with “Rorer 714,” which is the manufacturer’s identification for Quaalude. He had purchased these from Mickey McDaniel, the appellant’s son, at the appellant’s residence.

The two officers also indicated that both informants had given information on three or four prior occasions which had led to convictions in drug and alcohol related cases, and also in the recovery of stolen property. Informant No. One was identified as being twenty-four or twenty-five years of age, and a male, but the two officers declined to identify the two informants based- upon objections by the district attorney and rulings by the trial judge that the name, occupation, place of business, and whether or not either informant had a past criminal record, were matters which did not need to be testified to.

Both counsel for the appellant and counsel for the State of Alabama cited this Court to Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

In Davis v. State, 46 Ala.App. 45, 237 So.2d 635, affirmed, 286 Ala. 117, 237 So.2d 640, this Court noted:

“In Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, it is fairly well established that the prosecution is entitled to withhold the identity of the informant for at least two reasons: (1) to foster its activities in detecting crimes by keeping open lines of communications with the underworld and (2) to protect informers from harm and reprisal.”

See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); and Kenny v. State, 51 Ala.App. 35, 282 So.2d 387, cert. denied, 291 Ala. 786, 282 So.2d 392 (1973).

It should be here noted that the two informants simply supplied Deputy Ray and Investigator Smith information which Deputy Ray used to obtain a search warrant. There is nothing in this record to indicate that either informant participated in any way in the crime for which the appellant is charged. Therefore, clearly, the trial judge properly sustained the State’s objection to questions which sought to elicit the identity, place of employment, salary, residence, or whether or not either had a prior criminal record since neither Informant One nor Informant Two was involved in the instant case.

Moreover, it is clear that the trial judge allowed a sifting cross-examination as to those matters which made up the basis of the information the two informants supplied to Deputy Ray, i. e., (1) that sufficient data was elicited to conclude that the informants’ information was reliable and (2) that sufficient information was set forth to determine the circumstances concerning the source of the informants’ information pertaining to the criminal activity. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See also Hearsay and Probable Cause: An Aguilar and Spinelli Primer, by Judge Charles E. Morylan, Mercer Law Review, Volume 25, No. 3 (1974).

We are of the opinion that the appellant has failed to show that the trial judge abused his discretion with reference to the question on cross-examination of the two officers concerning the identity of Informants One and Two. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied, 288 Ala. 735, 265 So.2d 202 (1972).

We have carefully examined this record and find no error therein. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex Parte Willie McDANIEL (Re: Willie McDaniel v. State of Alabama).
    79-869.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   JONES, Justice.

WRIT DENIED-NO OPINION.

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


author: DeCARLO, Judge.

text:
    Jimmy E. COBLE v. CITY OF BIRMINGHAM.
    6 Div. 94.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied July 29, 1980.

      Ferris Ritchey, Birmingham, for appellant.
    W. Otis MacMahon III, Asst. City Atty., Birmingham, for appellee.
   DeCARLO, Judge.

This appeal involves a violation of § 16-18, General Code of Birmingham. Appellant was fined $350.00 and sentenced to 180 days hard labor.

The City of Birmingham charged in a Complaint that Jimmy Coble, the appellant, knowingly and unlawfully “sold an obscene book or magazine or matter entitled . . . ‘Special No. 20’ to D. S. Luker which depicted or portrayed the following sexual conduct: Actual act or acts of homosexuality between males, homosexuality between females, sexual intercourse, fellatio, contrary to and in violation of Section 16-18 of the General Code of the City of Birmingham, Alabama, 1964, as amended.” The appellant was tried in the Municipal Court without a jury, and was convicted. He appealed to the Jefferson Circuit Court.

The appellant filed, in the circuit court, a motion to suppress evidence and a motion to quash, both of which were overruled after supporting evidence was presented at a hearing prior to trial. The appellant was tried by a jury in the Jefferson Circuit Court and was found guilty as charged in the Complaint.

At the hearing on the motions, Richard Townes, Commander of the Administrative Vice Division for the City of Birmingham, acknowledged that he had discussed with Sgt. Triplett, Lt. Webb, and Officer Luker the type of bookstores in which arrests for obscenity violations would be made. Townes denied that they had decided not to make arrests of distributors of publications such as “Hustler,” “Oui,” “Playboy,” and “Penthouse.” Townes stated, “We just decided that we would enforce the City Ordinance that was pertaining to pornography.” The record reveals the following:

“THE COURT: Captain, tell me what policy if any, y’all have about enforcing those laws with reference to the various places.
“THE WITNESS: The policy is to enforce it against everybody that violates the obscenity laws of the City, taking into consideration the fact that these things have to be taken as a whole, the entire magazine. As much as I may dislike a number of other magazines, I just don’t feel that it’s within the policy of the Birmingham Police Department to move at this time against them.
“THE COURT: Are you in effect telling me that these officers when they make an arrest go get the worst they can find?
“THE WITNESS: Yes, sir.
“Q. And that’s the only arrest that you make, just against the worst that you can find?
“A. Yes, sir.
“Q. You are aware, of course, that for-Well, I withdraw that question.
“You are saying then, Captain, that it is the policy of your detail, the Vice detail, not to make arrests of publications that are sold monthly, national publications that are sold monthly no matter what may be contained within their covers?
“A. No, sir, I didn’t say that.
“Q. What do you say, sir?
“A. I’m saying that we-of course, I don’t-at my direction Lt. Webb and to the members in the Pornography Section are to arrest those persons who violate the City Ordinance, taking into consideration the complete text and alignment of the material contained in the total piece of the merchandise-or the worst.”

James Melvin Burns, Magistrate of the City of Birmingham testified, that on June 5, 1978, he was familiar with the guidelines in the City Code for issuing arrest warrants. After viewing “Special Number 20,” the witness recognized two photographs in the magazine. Burns, when asked whether he knew in June, 1978, the criteria necessary to constitute obscenity, answered, “I don’t remember what my thought processes were.”

Regarding the determination of probable cause, the record reveals the following:

“Q. Do you recall whether or not you took into consideration contemporary community standards in making your determination of probable cause that Special Number 20 was obscene?
“A. All I can say is I do not have any specific recollection of what I thought at the time.
“THE COURT: Did you know these guidelines, these criteria back on June-whatever this thing is dated?
“THE WITNESS: It was in the City Code. That’s what I used, yes.
“THE COURT: Did you look at the book?
“THE WITNESS: At that time I probably did, sir. I don’t remember specifically-
“THE COURT: Well, when you looked at the book did it come back to you?
“THE WITNESS: I can remember a photograph or two in the book, yes, sir.
“THE COURT: Well, when you looked at the book did it come back to you?
“THE WITNESS: I can remember a photograph or two in the book, yes, sir.
“THE COURT: At that time did you consider it obscene?
“THE WITNESS: Yes.
“THE COURT: Issue the warrant?
“THE WITNESS: Yes, sir.
“THE COURT: Go ahead.
“Q. In any event, Mr. Burns, when you looked at that magazine it is a fact, is it or not, that you, in making the determination whether or not to issue this warrant, to find probable cause that this magazine was or was not obscene, you did apply the three criteria set out in the City of Birmingham' Ordinance, did you not?
“A. I assume so. I do not remember what my thoughts were at the time.
“Q. Then you did take into consideration the three criteria?
“A. I’m sure I did.”

According to Burns, no adversary hearing was held when D. S. Luker brought to the Magistrate the affidavit which resulted in the appellant’s arrest.

Counsel for the defense, questioning Burns regarding his basis for determining probable cause, was allowed to read into evidence a portion of the transcript from a previous trial involving the appellant, the appellee, and the magazine now under review, “Special Number 20.” That transcript reads:

“Q. What did you use as a guide to determine what those community standards are, and what criteria did you use to determine what the community standards were prior to issuing the arrest warrant for the allegedly obscene publication?
“A. My experience in the community.
“Q. Did you call anyone that may be an expert or an authority on this?
“A. No, sir.
“Q. In other words, what you’re stating is, is the determination, the final determination, that final determination is yours and not anyone else’s of what community standards are?
“A. Yes, sir.”

Detective Sgt. L. H. Triplett testified that he was in charge of the Birmingham Vice Division Gambling and Pornography Detail. According to Triplett, plans for arrest or investigations of employees of adult bookstores or for purchases of magazines from adult bookstores were made by him, not by his superiors, although he kept his superiors aware of his activities. The witness admitted that he discussed with his superiors the type of materials which would be purchased to secure arrests for violations of Ordinance 16-18, as amended.

Also, Triplett admitted that they decided to limit their arrests to operators of adult bookstores who sold publications such as “Special Number 20.” Triplett explained this decision by stating:

“A. At this point in time myself, my captain, my lieutenant, we were all new down there. We had never been exposed to this type of material before. We were just getting guidance on what we can make a case on or what we can’t make a case on. We were literally almost told that you can’t make a case on other type stuff such as Hustler, Playboy, so we didn’t. We decided periodically we would probably check this kind of stuff and look at it. Other than that, we probably wouldn’t be able to make a case so why go through the motions and spending everybody’s money.
“THE WITNESS: [W]e were told that we had to look at this thing in the long-run. First of all, we did not believe that if we took the Playboy in front of the jury we would get a conviction. We didn’t want to waste our time and the State’s time, everybody’s time going through the motions of this. We knew we was going to be in front of a jury. You could look at the material itself. You can see the difference between the two publications.
“THE WITNESS: Playboy has articles, book reviews, record reviews, advertisements. The president of the United States gave an interview in Playboy. This kind of stuff has some kind of value. You take a thing like Special Number 20, it’s just got sex from one end to the other. There’s not even a place on there where it’s manufactured, copyrighted, printed. It’s just a title of a book and boys and girls, and boys and boys, and girls and girls. You can just look at the thing and see the difference.”

Triplett testified that the decision was made to make arrests whenever publications such as. “Special Number 20” could be purchased and that adult bookstores were the only places where such publications could be purchased.

Triplett denied that he and his men were instructed “not to worry about or to consider” publications such as “Hustler,” “Playboy,” “Oui,” and “Penthouse.” The witness explained that the decision to occasionally look at such publications was made; however, the decision to “ignore” those publications was not made. Although the witness never made any arrests involving those publications, the publications were purchased by his men. According to Triplett, publications such as “Hustler” are sold throughout the City of Birmingham; however, magazines such as “Special Number 20” are sold only in adult bookstores.

Triplett stated that some books which were purchased from adult bookstores had never been presented to the Magistrate for the purpose of making arrests. When asked whether those books were obscene, the witness stated:

“I know a couple of times I think we bought some and David didn’t think-Officer Luker didn’t think they were strong enough to have to get in front of a jury with them. When we buy them we don’t really know what we’ve got until we get back to the office and unwrap them, because they are sealed when we purchase them.”

During further questioning, Triplett denied that he had instructed the men in his detail “only to make arrests of adult bookstore operators. . . . ” According to the witness, arrests were made “anywhere we can buy a book that we think we can win a case.”

David Luker testified that he was employed with the Gambling and Pornography Detail of the Birmingham Police Department Vice Bureau and that his immediate superior was Sgt. Triplett. According to Luker, he had discussed with Triplett the type of publications for which convictions could be obtained and the type of publications for which convictions probably could not be obtained. Luker explained:

“The idea was tossed around about soft-core pornography and about the possibility of ‘Hustler.’ I understand that it was decided that we would stay with what we had been doing in the past because we were successful.”

Luker acknowledged that he had received, from his superior, instructions to make purchases of magazines at adult bookstores. However, Luker had not received any instructions to purchase magazines such as “Hustler” and “Playboy” from various Birmingham stores nor had he or the men in his detail ever made such a purchase for the purpose of obtaining an arrest warrant. Although, Luker stated, “As for the books, we only make purchases in adult bookstores,” he did remember that he had made a case “on fifteen books at a book-selling and trading store in the 2000 block of 5th Avenue North.” Luker acknowledged that the store was selling material similar to that which is sold in adult bookstores.

During further questioning, Luker also acknowledged that, after one series of arrests was completed, another series of arrests of the same people was made.

When testifying concerning the affidavit presented by Luker to the magistrate on June 5, 1978, Luker admitted that he could not remember exactly what had transpired on that occasion. The witness did recall that the affidavit was not prepared in the presence of the magistrate and that neither the defendant nor his attorney was present. Luker also recalled that the magistrate did not state that he had probable cause for believing that “Special Number 20” was obscene and that he, Luker, had not described to the magistrate any conversations with the defendant which had occurred at the time the magazine was purchased. Luker could not recall whether the magistrate had read the magazine; however, the witness did remember the magistrate “thumbing through it.” Luker admitted that he had not described, in his affidavit, the type of material contained in “Special Number 20.” When asked to describe the difference in “Hustler,” defendant’s Exhibit No. 5, and “Special Number 20,” defendant’s Exhibit No. 6, Luker explained that “Hustler" shows “simulated sex acts” while “Special Number 20” shows “actual sex acts.”

Luker admitted that he had never tried a case involving a publication such as “Hustler,” “Penthouse,” “Oui,” or “Playboy.” He also admitted that he had no personal knowledge of whether a jury would render a conviction for such a publication.

Having heard the evidence presented, the trial court overruled both the motion to quash and the motion to suppress.

At the jury trial, Luker gave substantially the same testimony that he had given at the hearing on the motions. Luker testified that, on June 1, 1978, he went to “Pleasure Books East,” a public adult bookstore in the City of Birmingham. After entering the store, he picked up a magazine, took it to the counter, and paid the appellant, Jimmy Coble, six dollars and thirty-six cents. Luker identified City’s Exhibit No. 1, a magazine called “Special Number 20,” as the magazine which he purchased. The witness also identified, in court, the appellant as the man from whom the magazine was purchased. According to Luker, the purchase was made with money supplied to him by the City of Birmingham and was made under instructions from his superior in the vice detail.

After purchasing the magazine, Luker went to his car, removed the cellophane cover from the magazine, and marked it for identification purposes. The magazine was then placed in Luker’s evidence locker until the trial date. Luker testified that he had the only key to the locker. The witness stated that while in his office prior to obtaining the arrest warrant, he examined the magazine from beginning to end.

At a later date, Luker presented to the City Magistrate the magazine, “Special Number 20,” and an affidavit which contained the appellant’s name, the date, time and place of purchase, and the allegation that the sale of the magazine violated City Ordinance 16-18. Subsequently, the appellant was arrested by Luker.

According to Luker, “Special Number 20” showed actual sexual intercourse, cunnilingus, fellatio homosexuality among men, and homosexuality between females.

On cross-examination, Luker acknowledged that the bookstore, “Pleasure Books East” did not cater to customers under nineteen years of age. Luker also acknowledged that magazines such as “Hustler,” “Club,” “Penthouse,” and “Oui” are regularly sold in Birmingham business establishments other than adult bookstores and that those magazines contain stories of explicit sexual activity along with pictures of nude male and female bodies. When questioned as to whether he had received complaints “from mothers or fathers that stated that their juveniles have gone in and seen magazines at a particular establishment here in the City of Birmingham,” Luker responded, “I have had complaints, yes, sir.”

I

The first issue raised by the appellant is whether, in obscenity cases, a jury trial is required on the issue of community standards. The appellant argues that “trial by jury after appeal to Circuit Court from bench conviction in Municipal Court does not satisfy Constitutional requirements.” Appellant argues that, although such a finding by this court would render Section 16-18 of the General Code of the City of Birmingham, Alabama, 1964, as amended, unenforceable because juries are not permitted in the Municipal Court, the City, nevertheless, prosecutes obscenity matters under § 13-7-181, Code of Alabama 1975. This issue was addressed in Holderfield v. City of Birmingham, Ala.Cr.App., 380 So.2d 990, and is dispositive of the issue now before this court on appeal.

In Holderfield v. City of Birmingham, supra, this court held that “while the jury system may be the best method for determining obscenity as defined in Miller v. California, [413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419], it is not a constitutional requirement. The statute requiring that all cases in municipal courts shall be tried by a judge without a jury is not unconstitutional as it applies to an obscenity prosecution in the municipal court.” See City of Duluth v. Sarette, Minn., 283 N.W.2d 533. Therefore, under the holding of Holderfield, we find that the appellant, in the present case, was not denied due process of law.

II

The appellant maintains that Ordinance 16-18, as amended, was systematically and selectively enforced against him as a member of a class operating adult bookstores and that such enforcement resulted in intentional discrimination which is violative of the equal protection clause of the Fourteenth Amendment. This issue was raised in the court below by the pretrial motion to quash.

To show discriminatory enforcement of a municipal ordinance, the appellant must prove the following three elements: (1) Selectivity in enforcement, (2) intentional selectivity, and (3) selectivity based on an unjustifiable standard. Starley v. City of Birmingham, Ala.Cr.App., 377 So.2d 1131. In Starley, this court stated:

“It is insufficient merely to show that other violators have not been prosecuted, that there has been a laxity in enforcement or that there has been a conscious exercise of some selectivity in enforcement.”

Under the facts of this case, we find no evidence to indicate any intentional selectivity based upon an unjustifiable standard. Therefore, because the appellant did not meet his burden of proof, his contention is without merit.

III

The appellant asserts that the magistrate in this case made a finding of probable cause based on an Affidavit of Complaint which, on its face, contained insufficient evidence to support such a finding and that oral testimony failed to cure the defective affidavit. The Affidavit of Complaint, sworn to by Luker, the arresting officer, omitting the formal parts, states:

“Personally appeared before me, the undersigned authority in and for said Municipal Court of Birmingham, D. S. Luker who being first duly sworn, says on oath that he has probable cause for believing and does believe that Jimmy Coble, White Male whose name is otherwise unknown to affiant, did within twelve months before making this affidavit and within the City of Birmingham, or the Police Jurisdiction thereof: Did unlawfully on to-wit: June 1, 1978, at approximately 1:10 P.M. at or near 7606-lst Avenue North, Pleasure Books East, Birmingham, Jefferson County, Alabama, knowingly publish, print, exhibit, distribute, or have in his possession with intent to distribute, exhibit, sell, or offer for sale in the City of Birmingham, Alabama, any obscene matter, to-wit: an obscene book, ‘Special Number 20,’ contrary to and in violation of General City Code 16-18 as amended against the laws and ordinances of the City of Birmingham. . . . ”

Although the affidavit recites the affi-ant’s belief, it contains no supporting facts or circumstances upon which a finding of probable cause could have been based; therefore, the affidavit, in and of itself, is insufficient to support a finding of probable cause for an arrest warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. However, oral testimony is admissible to cure an otherwise defective warrant. Funches v. State, 53 Ala.App. 330, 299 So.2d 771; Oliver v. State, 46 Ala.App. 118, 238 So.2d 916.

In the present case, Officer Luker presented the magazine, “Special Number 20,” to the magistrate when the sworn affidavit was given. The evidence reveals that the magistrate viewed the magazine before issuing the arrest warrant. In Hoiderfield, supra, this court held that the presentation of the alleged obscene matter to the magistrate along with the affidavit was sufficient to support a finding of probable cause. Therefore, under the holding of Hoiderfield, supra, and the facts of the present case we find that the magistrate did not err in finding that probable cause to issue an arrest warrant existed.

IV

The appellant contends that reversible error was committed when counsel for the City commented on the failure of the defendant to testify. The record reveals the following:

“MR. MACMAHON: This Defendant, as a matter of law, can produce witnesses. He can take the witness stand. He can cross examine-
“MR. RITCHEY: Your Honor, Mr. MacMahon knows that’s an improper argument. I move for a mistrial.
“THE COURT: Ladies and gentlemen, that argument is absolutely and totally improper. I am telling you that very, very definitely and it should not be listened to in any means whatsoever. Our Constitution, both State and Federal, and every state in the United States, and every Federal court in the United States says that the defendant never need testify. There is a presumption that he is absolutely and totally innocent until you are convinced beyond a reasonable doubt, and the Defendant need never take the stand. The fact that he does not take the stand in no way whatsoever incriminates him or says anything adverse to him. No comment should ever be made on the fact that he didn’t take the stand, and no comment should have been made at that time. It is totally improper. This man is presumed to be innocent until you are convinced beyond a reasonable doubt that he is guilty. The fact that he did not take the stand should not in any wise, in any moment whatsoever be held against him. I want each and every one of you to understand it, and that’s why I’m so forceful in what I’m saying.
“Going right down the line, do you understand that?
“(Whereupon, all twelve jurors answered individually in the affirmative.)
“And each and every one of you could go and judge this case understanding that completely?
“All right. I overrule the motion.
“MR. RITCHEY: We except.”

According to § 12-21-220, Code of Alabama 1975, if the prosecution comments on the defendant’s failure to testify, a new trial must be granted on motion filed within thirty days from entry of the judgment. In Beecher v. State, 294 Ala. 674, 320 So.2d 727, the Alabama Supreme Court held:

“Where there has been direct comment on defendant’s failure to testify, and the trial court has not promptly acted to cure such a statement, the conviction must be reversed.” [Emphasis added].

See Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43. The trial court can cure such a prejudicial statement, so that any error is harmless, by appropriate instructions to the jury which include “that such remarks are improper and to disregard them; that statements of counsel are not evidence; that under the law the defendant has the privilege to testify in his own behalf or not; that he cannot be compelled to testify against himself; and that no presumption of guilt or inference of any kind should be drawn from his failure to testify. Whitt v. State, Ala.Cr.App., 370 So.2d 736.

In the present case, although the complained-of remark was a comment on the defendant’s failure to testify, the trial court acted immediately to cure the error. We find that the curative instructions given by the trial court were sufficient to meet the “appropriate instructions” requirement of Whitt, supra. Therefore, any error committed by the prosecution’s remark was sufficiently cured and rendered harmless.

Finding no error prejudicial to the appellant, we hold that the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex Parte Jimmy E. COBLE. (Re: Jimmy E. Coble v. City of Birmingham).
    79-859.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   BEATTY, Justice.

WRIT DENIED-NO OPINION.

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


author: BOWEN, Judge.

text:
    Thomas Wilson BARNETT v. STATE.
    8 Div. 330.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied Aug. 19, 1980.

      Wesley M. Lavender, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery. Sentence was ninety-nine years’ imprisonment.

I

The State’s evidence shows that on May 13, 1979, the defendant and another robbed Mustafa Issa Elayan at his drugstore in Decatur. During cross examination by defense counsel, Mr. Elayan admitted that he had been convicted of obtaining drugs by fraud.

Despite this, the trial judge refused the defendant’s written requested instruction which read: “The Court charges the jury that if any witness testifying has been impeached, then the jury may disregard his testimony.” While the substance of this requested charge was not covered in the oral charge of the trial court, the refusal of the charge was not error. “It is the rule that in criminal cases tendered written instructions should be hypothesized on the belief from the evidence and a refusal of instructions in a criminal case not so hypothesized is not error.” Thompson v. State, 369 So.2d 50, 51 (Ala.Cr.App.), cert. denied, 369 So.2d 52 (Ala. 1979).

Furthermore, two other witnesses positively identified the defendant as being one of the robbers. The trial judge and not the jury fixed the defendant’s punishment. Thus, even if the charge had been properly predicated upon the evidence, we do not think that its refusal probably injuriously affected the rights of the defendant. Kennedy v. State, 291 Ala. 62, 66, 277 So.2d 878 (1973).

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

AFFIRMED.

All Judges concur.


text:
    Ex Parte: Thomas Wilson BARNETT. (Re: Thomas Wilson Barnett v. State of Alabama).
    79-906.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   JONES, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Barbara GREEN v. STATE.
    3 Div. 36.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.
    Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

The appellant was indicted by the Montgomery Grand Jury and charged in a seven count indictment with possession of seven different controlled substances. After a jury trial, appellant was found guilty and sentenced to three years in the penitentiary.

The appellant, prior to trial, had filed a motion to suppress and a plea of former jeopardy. Both the plea and the motion were denied. No evidence was taken regarding the plea of former jeopardy, but evidence was submitted on the motion to suppress.

On July 17, 1978, officers of the Montgomery Police Department and Montgomery County sheriff’s deputies went to the residence of the appellant and her husband at 2029 Yancey Street, Montgomery, Alabama. The officers attempted to make a buy of marijuana. When the attempt was unsuccessful, they produced a search warrant to search the premises. The search warrant was based on information from a reliable informant who had personally observed on June 16,1978, a quantity of marijuana growing in the back yard at 2029 Yancey Street, Montgomery, Alabama.

Pursuant to the search warrant, the officers entered the premises and found marijuana in the house and growing in the back yard. They also found seven different controlled substances along with other non-controlled substances.

The appellant and her husband were arrested and were later indicted by the Montgomery County Grand Jury and charged with possession of the controlled substances which were found on the premises. The appellant was not charged in the circuit court with possession of marijuana; however, she had previously been tried in the city court for possession of marijuana. A decision in that case was pending at the time of the circuit court trial.

I

The appellant contends that the trial court committed reversible error when it overruled her plea of former jeopardy. She argues that, at the time of the trial on charges which included possession of seven drugs taken during the search, she had been tried in the city cqurt for possession of marijuana, and the case had been taken under advisement by the judge.

In Hattaway v. United States, 399 F.2d 431, the United States Court of Appeals for the Fifth Circuit stated:

“Offenses are not the same if, upon the trial of one, proof of an additional fact is required which is not necessary to be proved in the trial of the other, although the same acts may be necessary to be proved in the trial of each. Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) ...."

Also, the Supreme Court of the United States in Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), said:

“A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

The appellant, in support of her contention, has cited three cases involving the possession of whiskey. It is our judgment that these cases are distinguishable from the case at bar in that the elements of proof necessary for “possession of whiskey” were the same in the three cases. In the present case, the prosecutions are for separate offenses. One was a trial in the city court on a misdemeanor charge. The other involved charges for the possession of seven different controlled substances in violation of the Uniform Controlled Substances Act.

These prosecutions grew out of the same transaction or facts, but they do not involve a jeopardy question because there are distinct elements in one prosecution that are not present in the other. On a marijuana charge, the prosecution must prove that the green leafy substance found in the possession of the appellant was marijuana. On each of the seven separate charges in the circuit court trial, there had to be proof verifying the contents of each of the individual substances charged in the violation, and this proof was submitted by the toxicologist.

Proof necessary for the conviction of the offense of possession of a controlled substance is different from that of a simple possession of marijuana. Therefore, we find that the prosecution for marijuana in the city court and the prosecution in the circuit court were for separate offenses, although they were based on the same set of facts. The question of jeopardy is not involved because proof of “an additional fact” was required in each prosecution, that “additional fact” being different in each case. Hattaway v. United States, supra. See also United States v. Hinton, 2nd Cir., 543 F.2d 1002.

II

The appellant’s second complaint is that the trial court committed reversible error in overruling her motion to suppress. She argues that the search warrant and supporting affidavit made no mention of any contraband other than marijuana and that the seizure of the other substances which “were not obviously contraband” was illegal.

The affidavit in support of the search warrant, omitting the formal parts, reads:

“On June 16,1978, Affiants J. G. Laing and Larry W. Burdette met in person with a confidential and reliable source hereinafter referred to as ‘A.’ ‘A’ stated to the affiants that he had personally observed a quantity of Marijuana growing in the back yard at 2029 Yancey Street, Montgomery, Alabama, on June 16, 1978. Upon checking with the Alabama Power Company, Affiant Laing found that the power for the residence of 2029 Yancey Street in Montgomery, Alabama, is listed in the name of Cecil Green.
“Further probable cause being that ‘A’ brought one of the Marijuana plants to the office of the Narcotics and Dangerous Drugs Detail and in a controlled field test it did in fact test for Marijuana.
“Source ‘A’ has proven reliable in the past in that on June 24, 1977, Affiant Laing received information from ‘A’ in person that resulted in the arrest of Donald Richard Jones AKA Ricky Pittman for sale of Marijuana. Pittman was convicted for Felony Sale of Marijuana and served six (6) months in the Montgomery County Jail.
“Source ‘A’ has further proven reliable in that ‘A’ has given Affiant Laing information on other drug activity which has led to two (2) Sale of Marijuana cases within the past thirty (30) days of this date. Arrests are pending on these cases.
“This affidavit is based upon facts and personal knowledge and observation of Source ‘A’ as well as a positive field test by Affiant Laing showing that the plant brought to the Narcotics office was indeed Marijuana. This affidavit is made for the purpose of securing a daytime search warrant for the residence at 2029 Yancey Street, Montgomery, Alabama.”

A search warrant was issued by a judge of the District Court of Montgomery County based on the foregoing affidavit. Armed with the search warrant, Officer J. G. La-ing, other Montgomery police officers, and Montgomery County sheriff’s deputies went to the residence of the appellant. On their arrival, they attempted to make a purchase, and, when their effort failed, they presented the search warrant and searched the premises. Larry W. Burdette, a Montgomery police officer, found marijuana plants growing in the back yard. Burdette, the evidence technician, collected from the upstairs front bedroom some of the drugs which were the subject of the present prosecution. Other drugs were found in the kitchen.

An “evidence inventory” was presented as State’s Exhibit No. 1 during the hearing on the motion to suppress. That inventory showed that, in addition to the marijuana found growing in the back yard, marijuana was found in the top drawer of a filing cabinet in the study, in the coffee table in the study, and in a drawer in the kitchen. Also, certain pills were found in the kitchen cabinet. Two large bricks of marijuana were found in a bedroom closet, and marijuana and pills were found in the dresser and in a jewelry box. Also, marijuana was found in an end table.

During the hearing on the motion to suppress, the appellant took the stand and testified that the officers entered the house before the deputy arrived with the search warrant. Further, the appellant stated that the search began after Officer Bur-dette had pulled a gun and stated that the premises were to be searched. The appellant presented two other witnesses at the hearing who gave substantially the same testimony she had given concerning when the search began.

The appellant, in support of her contention, has cited Peavy v. State, Ala.Cr.App., 336 So.2d 199, which states: “General exploratory searches are forbidden by Federal and State courts alike.” However, dis-positive of the issue in appellant’s case is. Brantley v. State, 294 Ala. 344, 317 So.2d 345. In Brantley the Supreme Court of Alabama held that evidence of LSD and cocaine was relevant on the issue of whether the accused possessed marijuana for personal use and that the evidence showed the “complete story.” In the present case, the admission into evidence of the seven different controlled substances revealed ' the “complete story” and was relevant on the issue of whether the appellant possessed the contraband with an intent other than for her personal use. The admission of the other drugs by the trial court was proper. Brantley v. State, supra. See also Satterwhite v. State, Ala.Cr.App., 364 So.2d 345, reversed on other grounds, Ala., 364 So.2d 359.

The appellant maintains that when the officers found the contraband they could not have conclusively known that the substances were, in fact, contraband. Under the rationale of Herrin v. State, Ala.Cr.App., 349 So.2d 103, the officers, after finding marijuana plants growing in the back yard and varying amounts of marijuana in several places in the house, could “reasonably suspect” that other substances were, in fact, contraband.

Under these facts, the trial judge properly overruled the motion to suppress.

111

The appellant’s final contention is that the trial court committed reversible error when it overruled her objection to the prosecutor’s comment in closing argument that she was a “dope dealer.” From the record:

“MR. BELL: I submit to you, ladies and gentlemen, that you have a dope dealer.
“MR. COLLIER: Your Honor, that is totally ridiculous.
“THE COURT: Overruled.
“MR. COLLIER: I move for a mistrial. This is a completely prejudicial statement, and the only reason for making it is to prejudice the jury in this regard.
“THE COURT: Motion denied.
“MR. BELL: I submit to you, ladies and gentlemen, that you have a dope dealer at 2029 Yancey Avenue in Montgomery, Alabama. Now, Mr. Collier has speculated as to whether these are diet pills. He has also speculated as to-”

The remark of the district attorney was “amply justified as a deduction from the evidence.” Gladden v. State, 24 Ala.App. 188, 132 So. 435.

The testimony of Allen Raymond Adair, criminologist with the Department of Forensic Sciences of the State of Alabama, showed that the following items were received from the appellant’s residence:

(1) State’s Exhibit No. 2, a yellow plastic suitcase containing two bricks of greenish-brown plant material identified as marijuana.

(2) State’s Exhibit No. 3, a silver metal pot containing greenish-brown plant material which was identified as marijuana.

(3) State’s Exhibit No. 4, a sealed brown plastic bag containing wet brown paper wrapped around plant material which was identified as marijuana.

(4) State’s Exhibit No. 5, a clear plastic bag containing various capsules and tablets which were identified as Phentermine and a capsule identified as amphetamine, both of which were controlled substances.

(5) State’s Exhibit No. 6, a clear plastic bag containing capsules which were identified as Phentermine and one rolled cigarette which was identified as marijuana.

(6) State’s Exhibit No. 7, a clear plastic bag containing various tablets and capsules which were analyzed to be Phentermine and Mazindol, both of which were controlled substances.

(7) State’s Exhibit No. 8, a large plastic bag containing one round yellow tablet identified as Diazepam, a controlled substance, along with twenty-five small orange tablets identified as Phenobarbital, a controlled substance. There were also two green and yellow capsules identified as Phentermine and one black and green capsule identified as Chlordiazepoxide, another controlled substance.

All of these items were found in different locations in the house. The substances found in varied locations and the several plants of marijuana growing in the back yard would, without too much imagination, give rise to an inference that the appellant was a “dope dealer.” Under the foregoing facts, it is our judgment that the prosecutor’s remark was justified as a “deduction from the evidence.” Gladden v. State, supra.

IV

The evidence submitted by the State was sufficient for the jury to infer defendant’s guilt in possessing controlled substances in violation of the Uniform Controlled Substances Act of Alabama. In view of the fact that there was legal evidence from which the jury could infer the appellant’s guilt, this court will not disturb the verdict. The weight and probative value of the evidence presented a jury question. Rogers v. State, Ala.Cr.App., 353 So.2d 19; Williams v. State, Ala.Cr.App., 335 So.2d 249; Dulaney v. State, 56 Ala. App. 374, 321 So.2d 713.

The appellant’s motion to exclude, motion for a directed verdict, and motion for new trial were properly overruled by the trial court. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have examined the record and have found no error. The judgment and conviction by the Montgomery County Circuit Court is affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and BOWEN, JJ., concur.

BOOKOUT, J., not sitting.


text:
    Ex Parte Barbara GREEN. (Re: Barbara Green v. State of Alabama).
    79-901.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   BEATTY, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Arthur Lee SAXTON v. STATE.
    5 Div. 494.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Oct. 7, 1980.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Lee County returned an indictment for buying, receiving, concealing, etc., stolen property against the appellant, Arthur Lee Saxton. He entered a plea of not guilty, was convicted, and sentenced to ten (10) years imprisonment, and appeals to this Court.

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

The appellant contends in his brief that the issues presented for review to this Court are: 1st. That the trial court committed reversible error in denying the appellant’s motion for a mistrial due to un-sworn testimony of a witness essential to the state’s case; 2nd. That the necessary elements to sustain a conviction of buying, receiving, or concealing stolen property were not proven due to the failure of the state to prove that the appellant did not have the intent to restore the stolen property to its owner.

It appears from the record that state’s witness, Andre G. Williams, was called as a witness, and examined by state’s counsel, and testified that on July 13,1979 he stole a Singer Sewing Machine from Auburn City Board of Education, and sold it to the appellant for thirty dollars. That when he sold the machine to the appellant, he told the appellant it was stolen. That he tried to buy the machine back, but appellant would not sell it to him. That all this took place in the City of Auburn, Lee County, Alabama. At the conclusion of the direct examination of witness Williams by state’s counsel, the following occurred:

“MR. WILKES: That’s all.
“MR. WILLIAMS: Your Honor, I’d like to approach the bench at this time.
“THE COURT: Yes, sir.
“(Whereupon, the following proceedings were had at the bench, in the presence of the jury, but outside the hearing of the jury:)
“MR. WILLIAMS: We would like to move for a mistrial at this time in that the witness’ testimony has not been sworn to.
“THE COURT: Well, I’ll swear him, and we can ask him over again.
“MR. WILLIAMS: Your Honor, we believe that this testimony has already been tainted by the fact that it hadn’t been sworn to, and we don’t know if he’s told the truth or not.
“MR. WILKES: Well, we can ask him and find out.
“(Whereupon, the following proceedings were had inside the presence and hearing of the jury:)
“THE COURT: Raise your right hand. You haven’t been sworn, have you?
“THE WITNESS: No.
“(Witness sworn.)
“THE COURT: That motion is denied.
“MR. WILLIAMS: The defense would like to take exception to that denial, sir.
“THE COURT: Very well. You have an exception. Ladies and gentlemen of the jury, we have omitted swearing this particular juror, so, he’ll have to be questioned again. I mean, this particular witness, not a juror.
“ANDRE G. WILLIAMS, a witness, after having been first duly sworn to speak the truth, the whole truth, and nothing but the truth, was examined and testified as follows, to-wit:
“DIRECT EXAMINATION”

Whereupon, the witness being again examined by state’s counsel, testified to substantially the same facts as stated above.

The appellant made no objection at any time during the first direct examination of the witness, Williams, by state’s counsel, until the direct examination was concluded, at which time he moved for a mistrial because the witness was not sworn.

If a witness is allowed to give evidence before the jury without first being lawfully sworn, it is the duty of the judge, as soon as it is called to his attention, to immediately administer a proper oath to the witness. Code of Alabama, 1975, Sec. 12-21-136; Murphy v. State, 25 Ala.App. 237, 144 So. 114. We hold that the trial court did not err to the prejudice of the appellant when it denied his motion for a mistrial, swore the witness, and allowed him to repeat his former testimony.

The appellant’s motion to exclude state’s evidence and his motion for a new trial properly raise the issue of the weight and sufficiency of the state’s evidence to sustain the jury verdict.

State’s witness, James P. Douglas, testified, in substance, that on or about July 17, 1979 he was the principal of Auburn .High School in the City of Auburn, Lee County, Alabama, when and where a new Singer Sewing Machine of the value of $375.00, the property of Auburn City Board of Education, was stolen. That the stolen sewing machine was returned to him at the Auburn High School on approximately the 22nd day of August, 1979 by the appellant.

State’s witness, Andre G. Williams, testified, in substance, that around July 13 or 14 he stole the Singer Sewing Machine from the Home Economics Room at the Auburn City School in Auburn, Lee County, Alabama, and sold it to the appellant for $30.00. That when he sold the machine to the appellant, he told him it was stolen; that a few days later he tried to get the machine back, but the appellant asked $100.00 for it, and would not let him have it back unless he paid the $100.00 to appellant; that all this took place in Auburn, Lee County, Alabama.

State’s witness, Henry Charles Askew, testified, in substance, that on or about July 17 or 18, 1979 he met the appellant on Martin Avenue in Auburn, Lee County, Alabama, and asked him to take him home; that on the way home, while riding in appellant’s car, the appellant mentioned something about a sewing machine; that he had about $30.00 in it; that he had bought the machine, and did not want it; that appellant had the machine in his car at the time; that witness and appellant drove by the house of Peggy Ann Payne, and witness tried to sell the machine to Mrs. Payne, but was not successful, so they left, and appellant drove him on home.

State’s witness, Peggy Thomas Payne, testified, in substance, that she lived in Auburn; that in the latter part of July, 1979 the appellant and Henry Askew came to her home; that Askew had a box and put it down on the floor and took a Singer Sewing Machine out of it and offered it to her for $100.00; that at about that time Arthur Lee Saxton, the defendant, came in, and asked what was taking so long, and then she asked if the machine was stolen, and Henry and Saxton just stared at each other; that she told Askew and the appellant she had a machine; that she did not buy the machine from them.

The appellant testified, in substance, that he bought the sewing machine from state’s witness, Andre Williams, and paid him $30.00 for it. That Williams told him it belonged to his girl friend; that Williams told him it was not stolen. That later on Williams wanted to buy the machine back, and he told him he could have it back for $30.00, but Williams did not have the money. That later on he found out that the machine was stolen and he informed the police he was going to return it to the school; that he returned it to the school, and thought the charges were dropped.

The essential elements of the crime of buying, receiving or concealing stolen goods are: (1.) That the property described in the indictment had been feloniously taken and carried away, as charged in the indictment; (2.) And that the defendant bought, received, concealed, or aided in concealing, the property, knowing at the time it was stolen, or having reasonable grounds for believing at the time that it was stolen; (3.) And at the time he so bought, received, concealed, or aided in concealing the property, knowing that it was stolen, or having reasonable grounds for believing at the time that it was stolen, he did not have the intent to restore the property to the owner. Code of Alabama, 1975, Sec. 13-3-55; Walker v. State, Ala. Cr.App., 355 So.2d 755; Scott v. State, 55 Ala.App. 318, 314 So.2d 921; Waters v. State, Ala.Cr.App., 360 So.2d 358; Certiorari Denied, Ala., 360 So.2d 367.

We hold that under the state’s evidence in this record the trial court did not err when it refused to grant appellant’s motion to exclude state’s evidence, or when it denied appellant’s motion for a new trial, Code of Alabama, 1975, Sec. 13-3-55; Walker v. State, supra; Waters v. State, supra; Scott v. State, supra. The matter of the intent of the appellant to return the stolen property to its rightful owner was a question to be decided by the jury.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Paul Wesley CROWELL v. STATE.
    5 Div. 502.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Oct. 7, 1980.
    J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph- G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted for the crime of embezzlement and sentenced to eight years in the penitentiary. He was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. New counsel was appointed to represent appellant on this appeal.

At the conclusion of the State’s case there was no motion made to exclude the State’s evidence. At the conclusion of the entire case appellant made the following motion:

“At this time, Your Honor, we’d like to make a motion for a directed verdict to exclude the evidence for failure to make a prima facie case.”

There was no request for the affirmative charge; there was no motion for a new trial; and no exceptions were reserved to the court’s oral charge to the jury.

On August 13, 1979, appellant was employed as a salesman with Plainsman Chrysler, Plymouth, Dodge, Inc., a corporation, located in Auburn, Alabama. On that date, pursuant to his employment, appellant sold a 1978 Dodge Challenger to Marvin Willi-ford, Jr., of Tuskegee, Alabama. The purchase price was seven thousand, six hundred dollars. Mr. Williford paid twelve hundred dollars as a down payment and sought additional financing through Chrysler Credit Corporation. The twelve hundred dollars was paid to appellant and he along with Mr. Williford went to the office of the sales manager, Mr. David Higgins, who wrote Williford a receipt for the twelve hundred dollars and took his application for the additional financing. Williford then returned to his home in Tuskegee.

Mr. Higgins called Chrysler Credit Corporation and advised them of the down payment and the credit application. The next morning, August 14, 1979, Chrysler Credit Corporation called Mr. Higgins and advised him it would be necessary that Mr. Willi-ford get a co-signer on the note and pay an additional three hundred dollars. Mr. Higgins called Mr. Williford and advised him of these additional requirements. Mr. Willi-ford was agreeable and appellant was sent to Tuskegee with the papers to be cosigned. Appellant met Mr. Williford at a pre-arranged place in Tuskegee and he asked appellant why he had to pay three hundred dollars more as a down payment. Appellant gave him no explanation.

Mr. Williford got in the car with appellant and rode to the Veterans Hospital in Tuskegee where Williford’s father was employed. Williford’s father agreed to sign the note and the credit application. After the paperwork was completed and they were leaving the VA Hospital appellant told Williford he could pay him the three hundred dollars and save a trip to Auburn. Williford thereupon gave appellant two one hundred dollar bills and five twenty dollar bills.

Appellant returned to Auburn and gave Mr. Higgins, Plainsman’s sales manager, the completed credit application and the co-signed note but he did not turn in the three hundred dollars which was still in his possession at that time. Mr. Higgins was busy at the time and told appellant he wanted to talk to him in fifteen or twenty minutes. Later Mr. Higgins met with appellant and informed him he was no longer employed by the company. Appellant’s employment was then and there terminated for unrelated reasons. Mr. Higgins got another employee, Mr. Luke McAlister to drive appellant to his home in Opelika. En route to Opelika they stopped at a place and bought a beer. Mr. McAlister who was driving appellant home saw appellant pull a wad of money out of his pocket when they got to Opelika. He saw a hundred dollar bill and some twenties and asked appellant where he got the money, and appellant replied that he always kept money around. When Mr. McAlister returned to Auburn he told Mr. Higgins about the money that appellant had in his possession.

In the meantime Mr. Higgins called Mr. Williford in Tuskegee and asked him when he wanted to come to Auburn with the balance of the three hundred dollars and pick up the car. Williford informed Mr. Higgins that he had paid the three hundred dollars to appellant after his father had signed the papers and the note. Upon learning that appellant had failed to turn in the money at the time he turned in the credit application and the co-signed note, Mr. Higgins dispatched another employee, Mr. Eugene H. Spinks, to Opelika to contact appellant and recover the money. Mr. Spinks went to appellant’s home and found him and his girl friend coming out of the door.

Mr. Spinks explained to appellant that the company knew he had the three hundred dollars and if he would return it the whole matter would be forgotten and that would be the end of it. Appellant refused to surrender the money saying, “Under no circumstances, I’m not giving up nothing.” Appellant ordered Mr. Spinks out of his yard.

From the record:

“Q. All right. What happened then?
“A. Then him and I got into a heated discussion; and I knew he had the three hundred dollars, and I tried to get it from him by putting my hand in his pocket, and you know, pulled it halfway out and by that time he pulled my hand out of his pocket and I let the money go. By that time his girl friend was standing by the car, they were getting ready to go, and he told me that I’d better get out of his yard, which I felt I was wrong; so, I just got in my car and he followed me to the corner and I turned around and came back because he was following me, and then he turned around and went back.
“Q. When you stuck your hand in his pocket and grabbed ahold of the money, did you grab ahold of some money?
“A. It was two one hundred dollar bills and some twenties.”

On cross-examination he was asked how long it took appellant to get his hand around there to prevent him from taking the money and he replied, “Well, at that time he was intoxicated, so it took him a little time to get his balance to even put his hand over it.”

Mr. Spinks further testified that the company had to re-do the contract and change it from a fifteen hundred down payment to twelve hundred dollars down payment and give the customer a three hundred dollar check as a refund.

Appellant testified as the only witness for the defense. He admitted that he had a prior felony conviction for forgery in the second degree and was sentenced to a term of three years in the penitentiary. He pleaded guilty and was placed on probation. The probation was subsequently revoked and he actually served sixteen months of that sentence.

He further testified that he sold a 1978 Dodge Challenger to Marvin Williford, Jr., while he was employed by Plainsman Chrysler, Plymouth, Dodge, Inc., a corporation, and before the sale was completed he permitted Williford to test drive the car. He rode with Williford during the test drive; that Williford told him he had seventeen hundred dollars to make a down payment but for some reason he could not get it financed. Appellant told Williford that he would help him all he could. Appellant talked to the sales manager, Mr. David Higgins, and was told that twelve hundred dollars down payment would be fine. Willi-ford gave him the twelve hundred dollars and he carried the money to Mr. Higgins who wrote Williford a receipt; that Willi-ford was so appreciative that appellant had kept the down payment so low that he gave appellant a one hundred dollar bill. Appellant told Williford that it would not look good if anybody found out about it. He said he didn’t twist Williford’s arm to get the hundred dollar bill; that he told Willi-ford he had his receipt for the twelve hundred dollars and that they should know the next day about the credit application; that when he got to the office the next morning he had a call from Williford wanting to know if his car was ready. He told Willi-ford he would call him back and he tried unsuccessfully to find David Higgins. Upon being unable to find Mr. Higgins appellant talked to the used car manager who told him that Williford would have to get his father to co-sign the note. He then was sent to Tuskegee and picked Williford up and they drove to the VA Hospital where he completed the paperwork and when they left the hospital, Williford slipped him another two hundred dollars for his help in keeping the down payment to twelve hundred dollars.

He further stated that when he got to Tuskegee Williford did not mention anything about an additional three hundred dollars or that he had gotten a call that another three hundred dollars was required to be paid; that when the used car manager sent him to Tuskegee he did not tell him to pick up an additional three hundred dollars and bring it back to the company.

On cross-examination appellant testified that he heard Marvin Williford testify that he got a call from David Higgins in which he was told he had to come up with an additional three hundred dollars; that he heard David Higgins testify to the same thing; that he heard Marvin Williford testify that he gave him the additional three hundred dollars and told him to see that it got to the dealership, but that it didn’t happen that way. Appellant summed up his testimony by saying Marvin Williford slipped him another two' hundred dollars because he had been good to him during the car sale transaction.

On rebuttal the State recalled Marvin Williford, Jr., and he testified that he never gave appellant three hundred dollars for his efforts in getting such a good deal for him in the purchase and sale of the automobile; that he did not slip appellant one hundred dollars while he was test driving the car and that he did not slip him another two hundred dollars after leaving his father’s office at the VA Hospital in Tuskegee, Alabama. He further testified that Mr. Higgins called him and told him he had to get up an additional three hundred dollars in order to get the proper financing.

On cross-examination he stated that he was prepared to pay seventeen hundred dollars as a down payment on the car but that Mr. Crowell told him that he thought twelve hundred dollars would be sufficient. He said that Mr. Crowell filled out the credit application for them in Tuskegee but he denied that he gave him two hundred extra dollars for his help in filling out the credit application.

Appellant contends that the evidence was insufficient to prove the crime of embezzlement and if it was sufficient, the embezzlement took place in Macon County and not in Lee County. We do not agree.

Embezzlement comprehends lawful possession of property of another by virtue of some trust, duty, agency, or employment, and the fraudulent conversion of such property to the use of the person so in possession. Abbott v. State, 27 Ala.App. 87, 167 So. 599.

The initial transaction originated in Lee County where the purchase and sale was partially completed and a receipt for twelve hundred dollars was given to the purchaser. The fact that the Chrysler Credit Corporation would not approve the twelve hundred dollars as a down payment and that three hundred dollars more was needed together with a co-signer on the note which was paid and signed in Macon County did not change the venue from Lee to Macon County. The three hundred dollar conversion did not take place until appellant returned to Lee County and refused to surrender the money which was the rightful property of the company in Auburn, Alabama. This is corroborated by the fact that Plainsman Chrysler, Plymouth, Dodge, Inc., a corporation, reimbursed Mr. Marvin Williford, Jr., for the three hundred dollars which appellant stole or embezzled.

The question of venue cannot be raised for the first time on appeal. In his motion to exclude the appellant only raised the sufficiency of the evidence to make out a prima facie case. The question of venue was not a ground of the motion to exclude. Turner v. State, 266 Ala. 250, 96 So.2d 303; Ward v. State, Ala.Cr.App., 376 So.2d 1112.

Conflicting evidence is for the jury and a verdict rendered thereon will not be disturbed on appeal. Woods v. State, Ala. Cr.App., 344 So.2d 1225; Young v. State, Ala.Cr.App., 346 So.2d 509.

On appeal from a conviction, the Court of Criminal Appeals is required to consider the evidence in the most favorable light for the prosecution. Ala.Dig. Criminal Law, Key No. 1144.13(2).

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

AFFIRMED.

All the Judges concur.


text:
    Benny WATWOOD v. STATE.
    8 Div. 356.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.

      Clyde D. Baker, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for rape and sentenced to ten years’ imprisonment. Two issues are presented on appeal.

I

The defendant contends that the trial court committed reversible error in sustaining the State’s challenge for cause to a venireman who stated that she would not convict the defendant upon the sworn testimony of only one witness even if she believed that witness beyond a reasonable doubt.

In qualifying the venire, the Assistant District Attorney inquired:

“Now, if the State of Alabama only has one witness that can say that this is the individual, that is the person, and you believe that person, that one witness that the State of Alabama had, if you believed that person beyond a reasonable doubt that what they were saying was so, is there any member of the Jury Panel that would feel that because the nature of the case, the seriousness of the charge, that you would have to have somebody else say it, too, that you would have to have two witnesses to come in and say, yes, that is the person.
“If there is, would you please hold up your hand.
“Yes, ma’am, what is your name?
“PJ REA: Jane Rea.
“MR. WALDROP [Assistant District Attorney]: Mrs. Rea?
“PJ REA: Yes.
“MR. WALDROP: Is there anyone else?
“(No response.)”
* * * * * *
“THE COURT: Any challenges by the State?
“MR. WALDROP: Yes, sir. Number 51, Mrs. Rea, who testified that she would have to have two witnesses even if she believed the State’s witness beyond a reasonable doubt before she could convict on the case.
“THE COURT: Any objection?
“MR. BAKER [Defense Counsel]: Yes, sir.
“THE COURT: I think under the law, there is no need for corroborative witness. That as a matter of law would be a challenge. Mrs. Rea — ”

The statutory grounds for a juror’s disqualification stated in Alabama Code 1975, §§ 12-16-150, 152, are not exclusive, and any other ground indicating probable prejudice will also disqualify. Motes v. State, 356 So.2d 712, 718 (Ala.Cr.App.), cert. denied, Ex parte Motes, 356 So.2d 720 (Ala. 1978). “Bias toward a certain kind of evidence is a manifestation of a predisposition against guilt or innocence because of a reason extrinsic to the evidence.” Poore v. State, 39 Ind.App. 44, 384 A.2d 103, 120 (1978). “The decision of a trial court to disqualify a venireman based on a challenge grounded on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an erroneous abuse of discretion.” Motes, 356 So.2d at 718.

A juror who will not be governed by the established rules as to the weight and effect of the evidence is incompetent.

“A juror is incompetent who is unwilling to be governed by the established rules of evidence, who would not convict on legal evidence, or whose answers show that he would follow his own views regardless of the instructions of the court as to the weight and effect to be given to a certain kind of evidence under certain circumstances.”
“However, a juror is not incompetent because it appears from his examination that he has erroneous views as to the law relating to the burden of proof or the weight and effect of evidence if he testifies that he has no prejudice and will follow the instructions of the court.” 50 C.J.S. Juries § 246a (1947).

In State v. Spence, 274 N.C. 536, 539, 164 S.E.2d 593, 595 (1968), the following appears:

“According to the Federal Court decisions ‘the function of challenge is not only to eliminate extremes of partiality on both sides but to assure the parties that the jury before whom they try the case will decide on the basis of the evidence placed before them and not otherwise.’ The purpose of challenge should be to guarantee ‘not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the State the scales are to be evenly held.’ Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Tuberville v. United States, 112 U.S.App. D.C. 400, 303 F.2d 411 (cert. den. 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578.”

See also State v. Noell, 284 N.C. 670, 202 S.E.2d 750, 758 (1974).

While it would have been the better procedure for the trial judge to inquire of the venireman as to whether she would be able to follow the instructions of the trial judge regardless of her personal opinions, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), we cannot say that the trial judge abused his discretion in this matter by granting the challenge for cause. The objection by defense counsel was only general and stated no grounds which would have alerted the court as to any serious objection defense counsel had or whether this was merely an “objection for the record”.

On appeal, the defendant argues that to disqualify a prospective juror the juror must have more than a biased or fixed opinion as to the guilt or innocence of the accused, and that such opinion must be so fixed that it would bias the verdict a juror would be required to render. Bowen v. State, 274 Ala. 66, 145 So.2d 421 (1962); Tidmore v. City of Birmingham, 356 So.2d 231 (Ala.Cr.App.), cert. denied, Ex parte Tidmore, 356 So.2d 234 (Ala.1977). This objection could have been easily remedied had it been presented to the trial judge. This matter was not raised in the defendant’s motion for new trial. Since the judge’s decision is not clearly erroneous, we cannot conclude that he abused his discretion in granting the State’s challenge for cause. Motes, supra.

II

The defendant also contends that the trial court erred in allowing the State, over his objection, to introduce evidence that someone broke into the trailer of the prosecutrix the day after the rape and removed a ballpoint pen and a pack of cigarettes, which allegedly had been left by the rapist, from the floor of the trailer where the rape had occurred. The defendant alleges that this evidence tended to prove a separate crime and asserts in brief:

“The inference to be drawn from the testimony was that the defendant had lost the ballpoint pen and the cigarettes during the alleged rape and had committed burglary the following morning to retrieve the damaging evidence.”

If, as the State so well noted, this evidence actually creates an inference that the defendant suppressed evidence, the defendant’s contention must fail. Any act proving or tending to prove an effort or desire on the part of the defendant to obliterate evidence of a crime is relevant, for from such fact, if unexplained, the jury may justly infer a consciousness of guilt. Robinson v. State, 43 Ala.App. 111, 180 So.2d 282 (1965). An effort to suppress evidence by an accused is evidence of guilt and is admissible even if it involves evidence of a separate offense. Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (1973).

However, even if, as defendant also alleges, there was no evidence, beyond mere speculation, to connect the defendant with the burglary, the evidence was still admissible. We think that this evidence was admissible for 'the very reason advanced by the State, that is, to corroborate the testimony of the prosecutrix. In his reply brief, the defendant does not specifically join issue with the State’s argument but contends, as in his original brief, that there was not a scintilla of evidence presented to connect the defendant with the burglary.

The State’s evidence reveals that the defendant forced his way into the prosecu-trix’s trailer, physically overcame her resistance and raped her on the floor.

The defendant denied having raped the prosecutrix or even being in her trailer. The defense was directed towards proving that the prosecutrix had fabricated the entire incident and had made similar false accusations against other men in the past.

On rebuttal, the State offered evidence to corroborate the prosecutrix’s testimony that she had been raped.

While the testimony of the prosecutrix need not be corroborated to sustain a conviction for rape, it may be and such corroborative evidence is admissible. Waters v. State, 55 Ala.App. 646, 318 So.2d 342, cert. denied, 294 Ala. 7731, 318 So.2d 346 (1975). Corroborating evidence is not required to be direct and positive or conclusive. Adams v. State, 32 Ala.App. 367, 370, 26 So.2d 216 (1946); 98 C.J.S. Witnesses § 648b (1957). Consequently, while the evidence of the alleged burglary and theft of evidence was inconclusive, it was admissible. While the State did not connect this to the defendant, this insufficiency went to the weight rather than the admissibility of such evidence.

We have searched the record for error as required by law. We have found none that was prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: FAULKNER, Justice.

text:
    Ex Parte Benny WATWOOD. (re: Benny Watwood v. State of Alabama).
    79-871.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   FAULKNER, Justice.

WRIT DENIED-NO OPINION.

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