author: DeCARLO, Judge.

text:
    Richard Wilson WYERS v. STATE.
    6 Div. 124.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Arthur J. Hanes, Jr. of Hanes & Hanes, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant was indicted, tried, convicted and sentenced to ten years imprisonment for bribery to commit a felony under § 13-5-39, Code of Alabama 1975, which provides the following:

“Any person who corruptly gives, offers or promises any gift, gratuity or thing of value to another person, with intent to induce or influence such person to commit any crime or offense punishable as a felony, shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than 10 years.”

Omitting the formal parts, the indictment charged that:

“RICHARD WILSON WYERS, whose name is otherwise unknown to the Grand Jury, did corruptly give, offer or promise one Richard Giannetti a certain gift, gratuity or thing of value, to-wit: One Thousand Five Hundred Dollars of the lawful currency of the United States of America, with intent to induce or influence said Richard Giannetti, to commit a certain crime or offense punishable as a felony, to-wit: the offense of murder by unlawfully and with malice aforethought killing one Joyce M. Wyers.”

The State’s chief witness was Richard Giannetti. In 1977, appellant hired Gian-netti, a private detective in Birmingham, to investigate his wife and her alleged boyfriend in connection with a pending divorce case. Thereafter, on March 23, 1978, while appellant and Giannetti were having drinks at the California Club in Birmingham, appellant told Giannetti that he wanted to find someone to do bodily harm to his wife’s boyfriend. Appellant then said that he had changed his mind and would rather find somebody to kill his wife instead. He asked Giannetti if he knew of anyone who would do the job. The following day, when Gian-netti asked whether appellant was serious about having his wife killed, and appellant replied, “I was never more serious in my life,” Giannetti reported the incident to the Birmingham Police Department.

Thereafter, the police monitored the developments between appellant and Giannet-ti, and advised Giannetti to see how far appellant would go with his plans. Gian-netti was outfitted with a hidden microphone and transmitter, and his conversations with appellant were relayed to police recording unit. The tapes and transcripts of these conversations were later introduced into evidence at appellant’s trial.

Giannetti pretended to go along with appellant’s plan. He told appellant that he [Giannetti] had found a person to commit the murder for $3000. with $1500. down and $1500. to be paid after the job was done. It is undisputed that Giannetti was to receive no payment for his role as the intermediary.

On March 29, 1978, appellant handed over fifteen hundred dollars to Giannetti to deliver to the “hit man.” He also gave Gian-netti the number and combination for a post office box where the remainder of the money would be found after the murder was accomplished. Appellant was arrested outside the California Club after he had delivered the money to Giannetti.

At the close of the State’s case, appellant moved to exclude the evidence, arguing that there was a material variance between the indictment and the proof offered at trial. After a lengthy hearing, the trial judge overruled the motion, and appellant presented no defense.

I

Appellant’s motion to exclude presents us with the question of the sufficiency of the evidence in this rather bizarre and unprecedented set of circumstances. We have been cited to no case, and our own research has uncovered no reported decision with similar facts.

Appellant argues that since Giannetti was to receive nothing for his role as middleman, and was to deliver the entire fifteen hundred dollars to the nonexistent killer, Giannetti could not have been the offer-ee of a bribe. In short, he insists that because the evidence showed Giannetti was a gratuitous intermediary, the State did not prove that appellant did “corruptly give, offer or promise . . . Richard Giannetti . . . $1500.”

We do not agree. In the absence of more direct and persuasive authority, we are inclined to follow the reasoning of the United States Court of Appeals in Malatkofski v. United States, 179 F.2d 905 (1st Cir. 1950). In Malatkofski v. United States, supra, the defendant was convicted of bribery under a federal statute substantially identical to § 13-5-39, supra, and punishing:

“[wjhosoever shall promise, offer, or give . . . any money or other thing of value ... to any person acting for or on behalf of the United States . . . with intent to influence his decision or action ...”

In answer to the defendant’s contention that he could not be convicted of “giving” money to a federal official because the payment was merely a loan, the court stated the following:

“The word ‘give’ in the statute is not, we think, used in the sense of ‘to bestow without a return’ or ‘to make a present of,’ but rather in another well-accepted sense of ‘to deliver or hand over.’ In the latter sense the evidence is undisputed that Malatkofski gave [i. e., handed over to] Cleary one thousand dollars in cash, and this is so whether the transaction was dressed up as an ostensible loan or as a ‘present.’ . . . There is good sense in this interpretation of the statute, for the legal effect of handing over the money to Cleary with the corrupt intent as established by the verdicts was the same whether it was understood as a gift or as a loan. If the latter was the understanding, Cleary nevertheless got title to the thousand dollars, and his promise to repay the ‘loan,’ as part of an illegal transaction, was wholly unenforceable.”

In the case before us, we find the evidence unquestionably clear that appellant “delivered” or “handed over to” Giannetti the fifteen hundred dollars for his wife’s murder. Following the rationale of the Ma-latkofski court, we also find that the legal effect of appellant’s handing the money to Giannetti was the same whether the transfer was characterized as a gift or as a delivery to a mere escrow agent or holding party for a third person. In either circumstance, it is clear that Giannetti’s promise to return the money if the “hit man” did not accomplish the murder would have been unenforceable.

Our construction of the word “give” as found in § 13-5-39, supra, that appellant “gave” Giannetti the money, within the meaning of the foregoing statute, is further supported by appellant’s own statements to Giannetti, taken from the tape transcripts:

“Wyers: Let me tell you something. I’m going to give you $3,000 . . .
“Giannetti: But here’s the thing. I can tell him that, I can go up to him and say look, the guy’s going to give us $3,000 the day before it’s done or the day it’s done. He’s going to say that’s not the way it works, Rich, and you know that. I’ve got to have something up front. I don’t care if it’s all of it or part of it.
“Wyers: I don’t care about that. That’s your problem.
“Giannetti: Thanks. I hadn’t got enough, huh.
“Wyers: I’m going to give you the money. I don’t want anything to do with him. I don’t know him.
“Giannetti: I realize that. I know you were going to give him the money. I don’t think you’ll back out on the money.
“Wyers: You handle the whole money situation.
“Giannetti: All right, there’s no problem.
“Wyers: I’m not dealing with him. I’m dealing with you.
“Giannetti: Yeah, right. But I’ve still gotta say I’ve got it or I ain’t got it. But see, it don’t go to him anyway. It goes to me. None of it goes to him until after it’s completed. You know, you don’t pay for a job before something’s done but you do have to have a mutual holder.
“Giannetti: Okay, that’s not what I’m getting at. When you’re saying you're going to give me $3,000, what do you mean you’re going to give it to me.
“Wyers: Just exactly that.
“Giannetti: When?
“Wyers: Right now.
“Giannetti: Oh fine, no problem there. I don’t want to tell him that, though. See, I’m gonna tell him. . .
“Wyers: I don’t care.
“Giannetti: All right, okay.
“Wyers: You handle that.
“Wyers: As you were gone very briefly and momentarily...
“Giannetti: Yes sir.
“Wyers: I decided to go ahead and take $2500 dollars of that money back.
“Giannetti: You do want to take $2500 back, all right, I don’t care but it’s kind of foolish to me. What is the reason for that?
“Wyers: I don’t really know.
“Giannetti: Well, why take it back. Let me hold this and you hold that.
“Wyers: You hold that and I’ll hold this.
“Giannetti: What the hell is the difference whether you give him three thousand or five dollars, Rick? It’s kind of foolish. Seriously, I don’t understand that.
“Wyers: The guy’s only expecting five, right?
“Giannetti: No, he said, that’s what he said, well, if it’s gonna be done but he wanted the five that day, that day, that’s what he was talking about. He said the other half would have to be put up before.
“Wyers: Let me say this about that. All I was legally or technically obligated to do was to put. . .(inaudible).
“Giannetti: Right. No, 15, 15. You were legally obligated to 5 and as of that day he said get $500 from the guy and he wasn't settling for the 2500 the day before or nothing like that. That’s not what he said. He said get the 500 as a binder from the guy, and if he backs out, at least I’ve got 500 dollars. If you back out, this way if you gave him three and you back out Sunday morning, he might want the three. I don’t know, but he’ll ask for at least 500 for his time and his aggravation. He would have asked for 500, I’m sure, and then I would have given you back 2500. I’m sure of that. That’s the way I feel about it. I would never give him 3,000 dollars if you backed out and he said, well, you know, 3,000 dollars. I wouldn’t give it to him. I’d give him $500. That’s all there is to it. That’s the same thing he told me the other day. Just get $500 from the guy and if he backs out fine, but at least I’ve got $500.
“Wyers: Let me put it this way that being the case.
“Giannetti: And if you still back out, he’s gonna get 5 of this 15.
“Wyers: If I back out, he can have five and you can have the grand.
“Giannetti: That’s fine with me. I’d love that. If you back out. All right?
“Wyers: All right.
“Giannetti: Because if it goes through, I don’t get nothing anyway. All I’ve got is what you gave me before and that’s it. That’s the way I’m going and that’s the way this is set up. He either gets the whole thing or he gets five big ones, and that’s it. If you back out, then you get (inaudible).
“Wyers: How do you want to handle this little problem?
“Giannetti: That’s what I said. You’re going to have to make contact now because afterward he’s gonna want his money. So we’re going to have to make some kind of contact later.
“Wyers: You handle that.
“Giannetti: (inaudible) say when. What I thought, this was working perfect the way we had it set. Look, I don’t give a damn really, but here’s the thing. Once this was in my hands. Right?
“Wyers: Right.
“Giannetti: All right. There was no more contact after that between you him or I. The only time I was to contact him was to give him the money. That’s the only time I had to see him again. In other words, Rick, bring me the money and we’ve got to contact him again. Do you see what I mean? Now this way I’ve gotta contact you. I have to go through this thing again and we’re going to have to contact him and say come get your money and all that crap. This way here I would have give it to him when the job was done and he’d have the whole thing.
“Wyers: Sunday night.
“Giannetti: We don’t even want to have conversation Sunday night. We don’t even want to contact each other Sunday night.
“Wyers: That’s what I was going to say.
“Giannetti: You’re forgetting this is taking place Sunday morning.
“Wyers: That’s what I was going to say.
“Giannetti: I thought I was wrong too. I saw him walking around with a pad. But anyway the only thing that would accomplish that there would be no more contact. That’s the only thing it saves. This one here. Now if you want to give him the whole thing before, all right, Saturday night or seven o’clock in the morning, either way. What the hell is that?
“Wyers: Post Office Box 9023.
“Giannetti: 9023.
“Wyers: This is the post office box. The combination is U1-B3.
“Giannetti: Okay.
“Wyers: Sunday there will be an envelope in it with $1500 cash.” [Emphasis added.]

From the foregoing, it is evident that once appellant delivered or “gave” the money to “Giannetti, he did not intend to trace its path or question its dispersal. It is our judgment, therefore, that appellant gave Giannetti fifteen hundred dollars to induce Giannetti to commit the offense of murder within the meaning of § 13-5-39, supra.

II

Appellant next insists that the trial court erred in failing to charge the jury on the elements of the offense.

It is well-settled that if an oral charge is not as comprehensive as a party would like, then the party must supply the court’s supposed omission by tendering a written requested charge. Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979); Lewis v. State, Ala.Cr.App., 372 So.2d 882, cert. den. 372 So.2d 885 (Ala.1979); Thigpen v. State, Ala.Cr.App., 369 So.2d 291, cert. den. 369 So.2d 297 (Ala.1979); Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974). In the instant case, appellant requested the following written charges numbered 3, 6, and 10, as well as an unnumbered instruction called “Suggested Charge on Element.”

“I charge you that if Richard Giannetti received one Thousand Five hundred Dollars as the agent for a third person, you must find the defendant not guilty. . .
“Defendant # 3.
“Defendant # 6.
“I charge you that unless you find from the evidence beyond a reasonable doubt and to a moral certainty that Richard Giannetti received all or part of one thousand five hundred dollars for himself and not as the agent of some other person, you must find the defendant not guilty.
“Defendant # 10.
“I charge you that unless you find beyond a reasonable doubt and to a moral certainty that the defendant gave, offered, or promised to Richard Giannetti One Thousand Five Hundred Dollars, for his own benefit you cannot find the guilty.
“Suggested Charge on Element.
“I charge you that the gist of this offense is the giving, offering or promising of a gift, gratuity or thing of value to the person to be bribed. The state has charged that Richard Giannetti was the person to be bribed in this case. If you have a reasonable doubt as to whether the defendant gave, offered or promised any gift, gratuity or thing of value to one Richard Giannetti, then you must find the defendant not guilty.”

Appellant’s “Suggested Charge on Element” and requested Charge No. 3, were properly refused because they were not hypothesized on a “belief from the evidence.” Thompson v. State, Ala.Cr.App., 367 So.2d 50, cert. den. 369 So.2d 52 (1979).

Appellant’s written requested charge No. 10 was properly refused because the omission of the word “defendant” rendered it elliptical and grammatically incorrect. Bryan v. State, 18 Ala.App. 199, 89 So. 894 (1921); Moore v. State, 146 Ala. 687, 40 So. 345 (1906); McCurley v. State, 39 So. 1022 (1905).

Finally, appellant’s written charge No. 6 was correctly refused because, as we have set out in Part I of this opinion, the fact that appellant delivered or handed over the money to Giannetti brings the transfer within the offense prohibited in § 13-5-39. Thus, it is unnecessary to determine whether Giannetti received the money as the “agent of some other person.”

We have examined the record and transcript of evidence and find no error prejudicial to appellant. The judgment of conviction by the Jefferson Circuit Court is due to be affirmed.

AFFIRMED.

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

BOOKOUT, J., concurs in result.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex Parte: Richard Wilson WYERS. (Re: Richard Wilson Wyers v. State of Alabama).
    80-614.
    Supreme Court of Alabama.
    July 17, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Elbert M. KING v. STATE.
    6 Div. 417.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Carl Wade Robinson, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Spec. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty under an indictment charging in pertinent part that he:

“with intent to defraud did make, draw, utter or deliver a check, draft or order for the payment of money upon the Bank of Fyffe, Fyffe, Alabama, knowing at the time of such making, drawing, uttering or delivery that the maker or draft drawer did not have sufficient funds in, or credit with such bank for the payment in full of such check, draft or order, upon its due presentation, and with such intent to defraud, did procure an article, or thing of value, to-wit: 1973 Volkswagen automobile, of the value of $925.00, . . . . ”

The jury fixed defendant’s punishment at a fine of $925.00. The court added to his punishment imprisonment in the penitentiary for one year and sentenced defendant accordingly.

Except in one particular that will be discussed hereafter, the indictment charges a crime constituting a violation of Section 4 of Act No. 2479 of the statutorily named Alabama Worthless Check Act, which section is now codified as Code 1975, § 13 — 4— 113, which provides:

“It shall be unlawful for any person to draw a check, or to cause or direct the drawing of a check, with intent to defraud, on any depository, knowing at the time of the drawing of such check that the maker, drawer or payer thereof does not have sufficient funds on deposit in or enough credit with the depository for the payment in full of such check and all other checks upon such fund or credit then outstanding. This section shall also apply to, but not be limited to, postdated check where the person drawing the postdated check, or causing such to be drawn, does not notify the payee that the check is postdated or make an arrangement with the payee to hold check.”

Code § 13 — 4-122 states that a person violating Section 4, as well as some other sections, of the Act “shall be punished upon conviction . . . When the check is for $500.00 or more, a fine of not less than $500.00 nor more than $5,000.00 and/or imprisonment not to exceed three years.”

Appellant insists that by reason of the punishment of imprisonment for one year defendant was convicted of a misdemeanor and not a felony. If this were true, the prosecution according to the undisputed facts and Code 1975, § 15-3-2, was barred by the statute of limitations of twelve months.

Code 1975, § 15-18-l(b) provides:

“In all cases in which the imprisonment or sentence to hard labor is 12 months or less, the party must be sentenced to imprisonment in the county jail or to hard labor for the county. No misdemeanor prisoner may be sentenced to the penitentiary.”

Appellant is mistaken as to the dividing line in Alabama between felonies and misdemeanors. It is not whether the one convicted of a particular crime must be punished by death or imprisonment in the penitentiary, but whether such person may be punished by death or imprisonment in the penitentiary; it is not whether the crime is punished, but whether the crime is punishable, by death or imprisonment in the penitentiary. Lashley v. State, 236 Ala. 1, 180 So. 717 (1938); Jackson v. State, 37 Ala.App. 335, 68 So.2d 850 (1953).

“A felony, within the meaning of this Code, is a public offense which may be punished by death or by imprisonment in the penitentiary; all other public offenses are called misdemeanors.” Code 1975, § 1-1-7.

No contention is made that to comply with Code § 15 — 18-1 imprisonment should have been in the county jail instead of in the penitentiary, as the period was not “for more than 12 months” or one year. As to any discrepancy in this respect, we need take no action in view of our disposition of this case as shown hereafter.

Another insistence on a reversal is that “the prosecution of the Appellant was an unconstitutional application of the Alabama Worthless Check Act as applied against him in that the prosecution was brought for the sole purpose of collecting a civil debt.” As to this question we are greatly aided by Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975) and Harris v. State, Ala.Cr.App., 378 So.2d 257 (1979), but we think it best to withhold further discussion thereof until after we discuss the equally important question: Under the undisputed evidence and the applicable law, was a jury question presented as to defendant’s guilt? We now consider such question irrespective of the fact that it is not directly raised on appeal.

The check described in the indictment was signed and issued by the defendant on May 17, 1978, at the Midfield Car Auction at Midfield in Jefferson County. It was made payable to J. J. Moore, to whom the check was delivered at the time in payment in full of the purchase price of an automobile that Mr. Moore sold and delivered at the time to defendant. The check was received and dishonored by the drawee bank on May 23, 1978, for the stated reason, “Insufficient Funds,” and returned through banking channels to Mr. Moore, the payee. Mr. Moore then called upon Mr. James Prestwood as representative of the Midfield Auto Auction to pay Mr. Moore the full face amount of the check, which Mr. Prest-wood did in accordance with the agreement between Midfield Car Auction and sellers of automobiles under the auspices of the auction company.

A large part, if not most, of the evidence in the case pertained to discussions between the defendant and Mr. Prestwood and efforts or purported efforts by the defendant to pay the amount of the check to Midfield Car Auction. Most of that evidence, though relevant to the issue of whether the prosecution was for the collection of a debt has little bearing, if any, on defendant’s guilt or innocence, which we are now considering.

The defendant lived at Rainsville, Alabama, and conducted a used automobile place of business there, a distance of between five and ten miles from Fyffe. His account at the bank was in the name of King’s Body Shop. The records of the bank as to the account were brought to the court by Mrs. Sue Gray, the assistant vice president and cashier of the bank. Pertinent copies of the records were introduced in evidence. The records include “checking account statements” for each month beginning January 20, 1978, and ending August 21, 1978. The statements show the amount of the “checks and other debits,” the amount of “deposits and credits” and the amount of the “balance” for each of the intervening days for which there were any “cheeks and other debits” or “deposits and credits” posted on the statements. The statements show that on May 16, 1978, there was a balance of $30.06, that on May 18, 1978, the balance was $15.06 and that nothing was posted on May 17, 1978. According to the statement, there had been total deposits and credits of $7,450.00 and total checks and other debits of $7,323.90 between May 18, 1978, and June 20, 1978, both inclusive, and that the highest balance on the days posted during that period was $214.16. However, between January 20, and April 29, the daily balance would be more than one thousand dollars more than it would be less than that amount, the highest amount thereof being $5,110.51 on March 10, and the next highest $4,440.77 on April 1, and that the balances on April 27, 28 and 29, were respectively $1,429.53; $1,039.65 and $1,489.65.

The defendant testified that he did not “fill out” his deposit slips, that the bank tellers did so. He testified that on April 8, 1978, he made a deposit in the amount of $3,490.00 and exhibited a deposit slip, initialed by a purported teller, for the amount of $3,490.00 with a notation thereon “sent for collection.” He introduced in evidence a page of his deposit book with the legend therein “APR 8 1978 3,490.00,” which is apparently initialed with the same initials of the teller on the deposit slip of April 8, 1978.

Much of the testimony and argument on trial pertained to the apparent discrepancy between the checking account statement, which does not reflect a deposit of $3,490.00, or any amount within the range thereof, on or about April 8, 1978, and a reflection thereof in defendant’s deposit book as well as on the deposit slip of that date, on the other hand. It seems that it is clear to the bank and to Mrs. Gray that the amount of $3,490.00 represented two drafts, which, as the deposit slip indicates, were “for collection” and that the same were never collected and for that good reason were never credited to defendant’s account. We are not disposed to doubt that, and likely the jury did not doubt it, and for like reason we are not persuaded that defendant is correct in his testimony to the opposite effect. In other words, the jury was justified, in our opinion, in believing that defendant did “not have sufficient funds on deposit in the bank for payment of the check set forth in the indictment” at the time or about the time it was drawn. This, however, is not a vital issue between the parties in this case as it would be in a civil suit between this defendant and the bank. The vital issue then would be whether on the one hand the bank is right or whether on the other hand Mr. King is right. Nevertheless, in the instant case, a vital issue is whether Mr. King thinks he is right. There can be no valid conviction unless defendant drew the check “with intent to defraud . . . knowing at the time” that he did “not have sufficient funds on deposit ... for the payment in full of such check and all other checks upon such funds or credit then outstanding.” Code § 13 — 4-113. There is no contention that there were checks outstanding of a sufficient amount which, when added to the amount of the check given to Mr. Moore, would exceed the sum of $3,490.00.

To be added to what we have said is the undisputed evidence that the mentioned discrepancy between the records in the possession of the defendant initialed by a representative of the bank and the records in the possession of the bank was never explained to defendant until long after the check to Mr. Moore had been dishonored and then returned to Mr. Moore by reason of “Insufficient Funds.” As to this, the defendant testified in part on cross-examination:

“Q. And your attorney has asked you a lot of questions about this $3,490.00 that was deposited — receipt you got during April 8 of ’78. That was a month before you wrote the check, right?
“A. Right.
“Q. And you heard Mrs. Gray, the lady from the bank, say when she gave you this you came in asking questions about this? And you heard her testify that she explained that that amount represented these two drafts?
“A. Correct.
“Q. Do you remember that?
“A. Yes, sir.
“Q. In other words, they sent these drafts off both on the same day, 4-10-78. One was $1,370.00 and one was $2,120.00. So, that was $3,490.00, is that correct?
“A. Correct.
“Q. So, are you testifying that you made an additional $3,490.00 deposit? Is that what you are up here saying?
“A. That is correct.
“Q. Then, what was that additional $3,490.00?
“A. According to my books I had made an additional $3,490.00.
“Q. Do you have your books here?
“A. Yes, sir.
“Q. Can you show me that additional receipt? In other words, my question is this? You heard her say that they made a receipt when they didn’t normally make — they made a receipt in your book for $3,490.00. And you heard her testify you came in and talked about it and she told you that receipt represented those two drafts?
“A. But, when I went in to talk to her was at least two months when I kept coming up short.
“Q. And did they—
“A. They ran the books. They tried to explain it to me. I researched what she said was in it and it was not. My sister, Public Accountant, she has worked on it and worked on it.
“Q. Let me ask you this, you saw Mrs. Gray come in with all the records and they are all computerized. Can you explain why that $3,490.00 is not on there? “A. No, sir, I can’t.”

The remainder of the cross-examination of the defendant was largely repetitious of what has been quoted above, as to which defendant was persistent in his views. On redirect-examination he testified in part:

“Q. All right. When you have a draft that is deposited and it is made good, do they send that draft back to you? Does the bank send that draft back to you?
“A. No, sir.
“Q. So, you wouldn’t have any reason to have those checks here today, would you?
“A. No, sir.
“Q. Now, there has been a lot of talk about your — about Mrs. Gray’s explanation to you at the bank. Were you satisfied with the explanation they gave you?
“A. No, sir. I went over and asked my sister to do research on it. I wouldn’t have liked so many long distance phone calls trying to chase all of it down.
“Q. All right, sir. I’m going to ask you again, was it ever your intention to defraud Midfield Car Auction out of any money or any automobile?
“A. No, sir. No sir, I dealt with Midfield Auto Auction off and on for twelve or fourteen years. I never beat them out of a penny. Mr. Prestwood will tell you that.”

Testimony in the case .ended with the following recross-examination of the defendant:

“Q. Just one question. Is your sister here today?
“A. No. She could have been if we had needed her.”

Although the testimony of the defendant is not to be taken without due regard for his interest in the outcome of the case, there is much substance in his contention that there was a bona fide dispute between him and the bank as to the sufficiency of funds in the bank to pay the check. There is other evidence that has a material bearing upon the question of his fraudulent intent, which is a material averment of the indictment and of the statute upon which the indictment is based. At the request of the defendant, the court instructed the jury as follows:

“I charge you that no person may be found guilty of drawing a check issued without sufficient funds if you find from the evidence that the Defendant had such credit with the said Bank of Fyffe as to lead him to believe and have a bona fide belief and reasonable belief that the check will be honored by way of overdraft. This line of credit may include an implied understanding on the part of the Defendant from the past course of dealing with the Bank of Fyffe and the course of conduct of the Bank in the past with the Defendant.”

The charge given is substantially in the language of the charge that was requested by defendant but refused by the court in Harris v. State, supra. It was held therein that the refusal of the charge constituted reversible error. In so holding, reliance was placed upon Elliott v. Caheen Brothers, 228 Ala. 432, 153 So. 613 (1934). It was said in Harris v. State at 378 So.2d 261:

“Under the authority of Elliott, therefore, it would seem that the past course of dealing between appellant and the drawee bank (i. e., that the bank had always called appellant and allowed him the opportunity to cover his checks and that none of his checks had previously been returned) constituted credit within the meaning of the statute, and that this evidence was sufficient to rebuff the intent to defraud on the part of the appellant.”

In the defendant’s testimony herein, he said:

“Q. All right, sir. Now, Mr. King, did the bank ever pay any of your overdrafts?
“A. Yes, sir.
“Q. And how many did they pay?
“A. I couldn’t tell you the exact amount but several.
“Q. Well, did they ever refuse to pay a check other than this particular one?
“A. Not that I know of.
“Q. Not that you know of. This is the only check you had they refused for insufficient funds?
“A. Yes, sir.
“Q. Up until May 17, 1978, is that correct?
“A. Yes, sir. We did have some checks from Mr. Prestwood that we had trouble with but we did make those correct.
“Q. You did make those right?
“A. Yes, sir.”

Although the representative of the bank, who testified on call of the State, when first questioned about payment by the bank of any overdrafts of the defendant, said at first, “I don’t believe we did,” he promptly qualified that statement and thereafter verified twenty printed and typed vouchers of the bank to the defendant commencing on February 27, 1978, and ending on May 11, 1978, showing that defendant’s account had been charged $5.00 for a check which the bank had paid in a stated amount resulting “in an overdraft balance” on defendant’s account. The first voucher contained the following, “We have today charged your account $5.00 and paid your check in the amount of $3,000.00 which resulted in an overdraft balance on your account.” The witness testified that “a lot of times we pay them if we know they have made a deposit that day.” In going over the documents showing payments of overdrafts, she recited:

“A. Okay. 2-27-78. We paid $3,000.00 check. 3-16-78 we paid a fourteen hundred dollar check. A check for — 3-10-78, we paid $69.95. Date 3-9-78, we paid a $4,000.00 check.
“Date 3-9-78, we paid a $75.00 check. 3-9-78 we paid a $3,600.00 check. Date 3-9-78 we paid a $100.00 check.
“Date 3-9-78, we paid a $95.27 check. Date 3-23-78 we paid a $300.55 check. Date of 3-23-78, a $350.00 check.
“Date 4-3-78 we paid an $80.00 check. Date 5-1-78 we paid a $68.00 check. Date 5-11-78, we paid a $100.00 check. Date 5-4-78 we paid a $850.00 check.
“Date 5-11-78 we paid a $120.00 check.
“Date 5 — 18—78 we paid an $1,820.00 check.
“Q. Go ahead.
“A. Check No. — Date 5-18 — 78, we paid $175.00 check. Date 5 — 18-78, we paid a $39.00 check. Date 5-18 we paid a $30.00 check. Date 5-11-78 we paid a $54.47 check, Date 5-11 we paid a $55.68 check. Date 5 — 11—78 we paid $140.00. 6-2-78 we paid a $160.00 check.”

It is obvious from the evidence as a whole that appellant was grossly, habitually and censurably lax. However, the repetitive conduct of the bank in honoring his overdrafts, except in the instance directly involved in this case, tends strongly to confirm the position of defendant, as expressed in his testimony, that he had no intention to defraud. Upon a consideration of all the evidence, including the “prima facie evidence of intent to defraud,” etc., we doubt that the State met the burden of proof imposed upon it to show that the drawing of the check by defendant was “with intent to defraud” and with the requisite knowledge of the insufficiency of funds, or credit with the bank, for the payment in full of the check, as alleged in the indictment, and as required by Code of Ala.1975, § 13-4-113. However, it appears that the question of the insufficiency of the evidence was not raised by defendant on the trial and is not raised on appeal, though it was raised in a limited way in defendant’s motion for a new trial; for that reason and because of our conclusion as to the proposition next considered, we make no determination at this time as to whether the judgment should be reversed because of any insufficiency of the evidence.

We now turn to the question whether the prosecution in this case was an unconstitutional application against him of the Alabama Worthless Check Act in that the prosecution was for the purpose of collecting a civil debt. If so, the case should have been dismissed on motion of defendant when the State rested its case.

According to the testimony of Mr. James Prestwood, he was the manager of Midfield Car Auction, Inc., during all of the time between the day the check was drawn and the trial of the case. He described his duties as, “Well, I handle credit, credit collection.” He did not have a clear recollection of all that occurred with reference to the check after the time Mr. Moore, the payee, delivered it to Mr. Prestwood for payment thereof in accordance with the guaranty, but he did write defendant on August 30, 1978, a certified letter, which was returned to Mr. Prestwood without delivery to Mr. King, in which Mr. Prestwood said:

“Your check # 367 for 73VW has been returned to me for insufficient funds.
“This must be paid at once or legal action will be taken.
“Also you still owe me a balance of $180 on your other checks.
“Please contact me at once on this.”

He further said that he saw defendant on June 5, 1979, and that he swore out a warrant for defendant on that day. He also testified:

“Q. So, you didn’t see him until the next following June 5?
“A. I may have seen him in the meantime, but as to specific dates, this is the only date I can pin down.
“Q. So, you remember specifically on June 5 seeing him in Court?
“A. Yes.
“Q. Now, let me ask you this: In between the time you sent that letter and the time you saw him in Court on June 5, had he made any payments to you?
“A. He had on other checks.
“Q. Well, we are just here about this particular check.
“A. No.
“Q. Had he returned the car to you?
“A. No.
“Q. Now, when you did him on June 5, the following June 5th of ’79, what if anything did you say to him then; do you recall?
“A. Yes I told him we still had this $925.00 check outstanding.
“Q. Do you remember what he said?
“A. Not exactly.
“Q. Well, not the exact words, but anything he said?
“A. He would try to take care of it.
“Q. What happened then?
“A. On August 30th of ’79, I received $100.00 from him.
“Q. Now, I want to ask you, and I want you to stop and think about the times that you saw him after the check was written. And, ask you if you recall any statements he made to you about paying the check.
“A. He made statements he would pay it.
“Q. Did this occur several times?
“A. Yes, sir, it had to.
“Q. Did he ever give you an explanation why the check was not paid?
“A. Nothing but he was short of money.
“Q. He was short of money?
“A. Yes. He would try to pay.”

On cross-examination, Mr. Prestwood testified in part:

“Q. And the reason you are here today is so you can collect your money; is that right?
“A. No, sir, I’m here to prosecute him. I don’t have my money.
“Q. Well you have used this threat of prósecution as an attempt to collect a debt; haven’t you?
“A. No, sir.”

Defendant’s Exhibit 2, which Mr. Prest-wood acknowledged that he wrote defendant, was introduced in evidence. It states:

“Dear Elbert,
“This is the only payment I have received from you so far. This will leave you 2 more payments due by September 5,1979.
“Let me hear from you on this.
“Sincerely yours,
“James A. Prestwood.”

When the letter was shown him, the witness continued:

“Q. And so, apparently you did have some payment plans worked out with Mr. King at this time?
“A. Yes.
“Q. And that is to pay off this check?
“A. (Witness nods head.)
“Q. So, you had an oral agreement with Mr. King to pay off this debt, is that correct?
“A. True.
“Q. .. . And you had an oral agreement with him to pay off the existing debt with the $925.00, is that correct?
“A. We had a promise from him to pay.
“Q. And you accepted that promise, didn’t you, upon the condition he pay?
“A. Upon the condition he pay.
“Q. You stated you swore the warrant out on the 5th of June? Do you remember when you entered into the agreement for payment of the check?
“A. It would be about the same time.
“Q. On the 5th of June, the date you swore the warrant?
“A. Probably, I’m not sure.”

Defendant’s testimony was about as vague as Mr. Prestwood’s relative to conversations between the two as to any understanding between them as to what he could or would do as to the unpaid check. There apparently is some conflict between them as to their understanding of any agreement between them, but there is little conflict as to what was said between them. It is reasonably clear that about the same time, or soon after, the check to Mr. Moore was turned down by the bank, two or more checks totaling $180.00 of defendant were turned down by the bank, that they were held by Midfield Car Auction and that defendant made payment of them to Mr. Prestwood. The two seemed to agree that on the day Mr. Prestwood swore out the warrant for defendant as to the Moore check, they were both in court in connection with the other checks. The Case Action Summary in this case shows that the war-, rant was issued on June 5,1979, and that on the same day defendant was released on bond. The indictment was returned on August 15, 1979. The same Case Action Summary shows that on September 4, 1979, the case was “passed to be reset” and that on October 18, 1979, “defendant failing to appear this date duly set for trial,” a forfeiture on his bond was taken, that appropriate writs were issued, that on October 26, 1979, defendant was placed in jail in De-Kalb County, that on the following day he made bond and that on December 6, 1979, “Defendant having made bond case is passed to be reset.” He was arraigned on January 7, 1980, tried and convicted on June 16, 1980, and sentenced at a hearing conducted on September 3, 1980.

As to what occurred between defendant and Mr. Prestwood on June 5, 1979, defendant testified:

“Q. And he testified about a certain agreement you and he had entered into on June 5th, 1979?
“A. That is correct.
“Q. Would you tell the jury, please sir, just what was — what happened or what was said between you and Mr. Prestwood at that time?
“A. Well, I still owed him a balance of $180 on some cashier’s check I had sent him.
“When he notified me I sent him cashier’s checks right back in the mail. And I paid him the balance on that. And he told me I could pay the other however I could the best way I could. I told him I would try to pay him a little every month for two months however I could.
“Q. Did you know at the time you made the agreement to pay it off he had issued a warrant for your arrest?
“A. No, sir, I didn’t.
“Q. When did you first learn of the warrant being issued for your arrest?
“A. Well, he said I would have to sign a bond. It would be our agreement and I could sign my own bond. So, I sent him a couple of payments. And I got a letter from him stating that he got my payments. And in a few days I- got picked up and put in jail. Said I hadn’t appeared in court. And I hadn’t gotten any appearance notice. I didn’t know I was supposed to.
“I thought me and him had got it settled. So, I stayed up in jail about three days and nights, I think. And I got out and I called down here to the court and talked to Judge Reynolds, and made an appointment to come down. And they had forfeited my bond. And I come down and got a new date with him and he appointed you as my lawyer.
“Q. Now, Mr. King, did Mr. Prestwood ever tell you that if you paid the check he would drop the charges?
“MR. SCHILLECI: I object to that.
“THE COURT: Overruled.
“A. Yes, sir.
“MR. SCHILLECI: Self-serving.
“THE COURT: Overruled.
“(By Mr. Robinson:) He did?
“A. Yes, sir.
“Q. What date was this?
“A. The date we made the agreement.
“Q. The date you made the agreement here in the courthouse?
“A. Yes. I paid him $180.00.”

We do not doubt that some of the uncertainty, vagueness and conflict in the testimony of Mr. Prestwood and the defendant as to what occurred relative to the check and any efforts on the part of defendant to straighten the matter out was to a substantial extent by reason of the interval of time of more than two years between the issuance of the check and their testimony. We are also convinced that the confusion was worsened by reason of defendant’s delinquency as to two other checks held by Midfield Car Auction as to which there was a settlement between defendant and Mr. Prestwood. The record is not clear as to whether there were ever any criminal proceedings relative to such checks; but it may be significant that on June 5, 1979, when Mr. Prestwood swore out the warrant for defendant in this case, which defendant says he did not know was sworn out at the time, it appears that defendant was released on his own bond in the amount of $500.00, and that the two men were at the courthouse at the time.

We now mention an item, which has not been discussed by the parties, but which we think has considerable significance in connection with the question whether the Worthless Check Act was unconstitutionally applied in an effort to collect a civil debt. It is a stamped statement on the back of the check that furnishes a basis for the prosecution of this case, though it is partly obscured or obliterated by other stamped material thereon and a punched out portion of the check. It is as follows:

“This Instrument Guaranteed By Mid Car Auction, Inc., Under the Term Its Policies. We Are Not Responsible For Stopped Payment Checks.
“Signed, flnitials or name illegible!”

We consider this item in connection with the following provision of the Alabama Worthless Check Act:

“It shall be the duty of the drawee of any check before refusing to pay the same to the holder thereof upon presentation, to cause to be written, printed or stamped in plain language thereon or attached thereto the reason for the drawee’s dishonor or refusal to pay the check. In all prosecutions under this division, the introduction in evidence of any unpaid and dishonored check, having the drawee’s refusal to pay stamped or written thereon shall be pri-ma facie evidence of the drawing of said check and the dishonor thereof and that the same was properly dishonored for the reasons written, stamped or attached by the drawee on such dishonored check.” Code of Ala. § 13-4-119.

Although the right of Midfield Car Auction, Inc., to the check and the chose in action based thereon is unquestionable and has never been questioned by defendant, it seems that the guaranty of such transactions by Midfield was deliberately limited to such an extent that it would not become liable on its guaranty unless it had the benefit of the last quoted provision of the Alabama Worthless Check Act, or, stated otherwise, it would have the benefit of all of the provisions of the Alabama Worthless Cheek Act. That it had the right to protect itself is not questioned, but the possible intention of the limitation to enable the guarantor to utilize a criminal proceeding, or the threat thereof, to obtain satisfaction, is not to be ignored in connection with the question now under consideration.

We have no doubt that appellant would never have been prosecuted if no one acting in a representative capacity for Midfield Car Auction had ever sworn out a warrant for the arrest of the defendant. We are persuaded that this was postponed for more than a year because of the belief the check would be paid by defendant without the necessity for a criminal prosecution, that, if it had been paid before June 5,1979, no criminal prosecution would have ever been instituted and that, if it had been paid in full by defendant before the testimony of Mr. Prestwood was taken, Midfield Car Auction, Inc., and Mr. Prestwood would have had no further interest in the prosecution.

We adopt and apply the language of Presiding Judge Harris at the end of the opinion in Harris v. State, supra:

“We are clear to the conclusion that this prosecution was instituted for the collection of a civil debt and that the conviction was wrong and unjust. To allow this conviction to stand would be a travesty on justice.”

The judgment of conviction should be reversed and the appellant should be discharged.

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

REVERSED AND RENDERED.

All the Judges concur.

      . “As against the person drawing the check, or the person causing or directing the drawing of the check, the drawing of such check, payment of which is refused by the depository, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with such depository; provided, that such person has not paid the holder of the check the amount due thereon within ten days after receiving notice that payment of such check was refused by the depository....” Code of Ala., 1975, § 13-4-118.

      . The court took the motion under advisement at that time. We fail to find a definite ruling thereon during the trial. However, a motion for a new trial was duly presented in which the same contention of appellant was made. The motion for a new trial was overruled. We believe, and there is no contention to the contrary, that defendant preserved this particular point to the extent that it can now be properly reviewed.

      . A space of approximately 3-5 letters is punched out of the end of the first three lines of the statement.


author: ADAMS, Justice.

text:
    Ex parte State of Alabama. (Re: Elbert H. KING v. STATE of Alabama).
    80-612.
    Supreme Court of Alabama.
    July 17, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Albert C. WASHINGTON, alias v. STATE.
    6 Div. 422.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Jake V. Bivona, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Albert C. Washington was indicted by the Grand Jury for the first degree murder of Neal Haley by “shooting him with a pistol.” Appellant plead not guilty and was tried by a jury. They found him guilty of murder in the second degree and sentence was fixed at thirty-eight years’ imprisonment. Appellant gave oral notice of appeal and filed a motion for a new trial. This motion was denied, hence this appeal.

Tyrone Davis testified that he was charged with murder in the first degree for the same murder for which appellant was being tried in the instant case. Davis stated he had known appellant some thirteen years prior to August 30, 1977, the day the murder occurred. On that day, Davis had driven to appellant’s residence in his 1975 dark brown Honda Civic, arriving at approximately 10:00 a. m. After visiting a lady friend at her home for an hour, the two men drove to the south side of Bessemer to the home of Andre Thomas in the South Bessemer Projects. Present at the home were Andre Thomas, Tyrone Davis, appellant and one James Johnson. During the course of conversation, Thomas suggested to the other three men that it would be a “good day” to rob Haley’s Confectionary located on Dartmouth Avenue in the project area. Davis testified he told Thomas, “I say, you can go and do it yourself, I’m not going to participate in this.” (R. 13-14) Appellant and Davis then left in Davis’s Honda. At appellant’s direction, Davis drove appellant to Haley’s Confectionary to buy a candy bar. Appellant purchased the candy, and the two men then returned to Thomas’s residence, again at appellant’s direction. When Davis asked appellant why he wanted to go back to Thomas’s residence Davis stated appellant said, “. . . I want to go by there and see can I get me a gun. I think I’m going to go and try to take this place off.” (R. 15) Davis told appellant he would take him to Thomas’s house, but that if appellant was going to do that, he was on his own, and he would not be involved in it.

After returning to Thomas’s residence, Davis sat in the automobile, while appellant and Andre Thomas talked. Appellant then got back in the vehicle, and asked Davis to drop him by Haley’s store. Davis testified he told appellant, “. . . Well, Albert, when you get out of my car you are on your own. I’m going on about my business.” Davis then dropped appellant off fifty feet from Haley’s store, and drove away.

Six blocks from the store Davis parked his vehicle and began a conversation with an unknown man, who was washing his automobile. After about five minutes he noticed the man looked distracted by something, and he also looked and saw a man “with no shirt on” running down past the back of some apartments. At first the man was running away from Davis’s vehicle. He then turned and ran toward Davis, who recognized the runner as the appellant. The record reflects the following:

“Q Okay. After he got to your car, what if anything did he say to you? A ‘Let’s go, man. Crank up. Come on, man, let’s go. What’s the problem?’
I said, ‘What is the problem? What is the matter?’ I said, ‘What are you in a hurry for.’ He said, ‘just crank up the car, let’s go. Don’t even sit here and talk about it. Let’s go.’
‘Why, man?’
‘The man got stubborn on me and pulled a gun and I had to shoot him.’ Q Was anything else said by him at that time?
A T tell you what’ — this is my answer. T tell you what, if you done something like that, me and you are going to have to stay away from around each other. Because, if anybody seen you getting in my car they ain’t going to be too interested in the man. They are going to be giving a description of the car they seen them leaving in.’
Q Was you in the same brown car?
A Yes, sir.
Q What kind of car was that?
A 1975 brown Honda Civic.” (R. 21-22)

Davis then took appellant home, and returned to the project. Again he parked six blocks away and walked to Haley’s store. He entered the store, and saw Mr. Haley lying on the floor with a hole in his head. Davis left the store and went home. Sometime in December, Davis accompanied Washington and another man to Cleveland, Ohio, where he remained for five months. Davis stated he did not know appellant was going to rob the store, and that having known appellant for a number of years, he did not believe appellant could even try to do such a thing.

James Johnson testified he went to Haley’s store around 2:30 p. m. on August 30, 1977 to buy cigarettes. As he was leaving the store, he saw appellant, whom, he knew, get out of a small automobile and walk toward Haley’s store. Johnson also observed the small car leave the scene. Johnson then went to a friend’s house about a block away from the store, where he heard what sounded like a gunshot from the direction of the store. This took place some four to five minutes after he saw appellant headed toward Haley’s store. Upon hearing sirens and seeing people run toward the store, Johnson also returned to the store. There he saw Mr. Haley lying on the floor with blood on his head. Johnson also stated the vehicle from which appellant disembarked was a Honda or Toyoto and was driven by Tyrone Davis.

Officer C. E. Pitts of the Bessemer Police Department testified he answered a call on August 30, 1977 in response to a reported shooting. An ambulance driver on the scene told Officer Pitts that the victim appeared to be dead. Pitts entered the store and discovered Mr. Neal Haley, a fifty-nine year old man, lying on the floor face up. There was a small caliber gunshot wound in his forehead above his right eye. Pitts checked for pulse and respiration, found none, and then proceeded to secure and investigate the area.

Charles Robey, a Jefferson County Coroner-Medical Examiner, investigated the Haley homicide after a call on August 30,1977. He found an elderly deceased black man with a single gunshot wound to the head above the right eye. An autopsy was later performed on Mr. Haley, at which Mr. Ro-bey was present. Robey gave his opinion that Haley’s death was caused by a gunshot wound to the head.

Sergeant Douglas Acker of the Bessemer Police Department testified he also investigated the Haley homicide and testified concerning pictures and a diagram he had made at the scene of the murder. He also stated the murder weapon had never been found.

Sergeant E. N. Franklin of the Bessemer Police Department testified he participated in the extradition of appellant from Louisiana in January of 1980. He, along with another officer, went to New Orleans, Louisiana to pick up appellant at the city jail and bring him back to Bessemer.

The State rested and appellant moved to exclude the State’s evidence. Appellant also presented the court with a written request for the affirmative charge. The trial court denied appellant’s motion and refused the charge.

The defense called the appellant, Albert C. Washington, to testify in his own behalf. Appellant testified he was in Orville, Dallas County, Alabama staying with relatives on August 30, 1977. He stated he did not shoot Mr. Haley and had never been inside Mr. Haley’s store. Appellant stated he knew nothing of the murder or of his having been charged with it until January 1980. He stated he did not object to or contest his extradition as he had nothing to hide. Appellant presented no witnesses from Orville to verify his alibi of having been with relatives on the day the murder took place. Inez Washington, the appellant’s mother, did testify her son spent some time during the summer months of 1977 with relatives in Dallas County, but she did not recall the specific dates. Following Mrs. Washington’s testimony, the defense rested.

I

Appellant argues that Tyrone Davis was an accomplice as a matter of law, and that as such, appellant would not be convicted for a felony unless Davis’s testimony was corroborated by other evidence connecting him with the crime, citing § 12-21-222, Code of Alabama 1975. He asserts further that there was not sufficient evidence to corroborate the testimony of Tyrone Davis.

In order for a defendant to invoke the § 12-21-222 prohibition mandating corroboration of an accomplice’s testimony, the evidence must present an undisputed question of fact for the trial judge that the witness giving the testimony is an accomplice. Yarber v. State, Ala., 375 So.2d 1229 (1978); Clifton v. State, Ala.Cr.App., 359 So.2d 853 (1978). The question of law for the court resolves itself into one of undisputed evidence. Leonard v. State, 43 Ala. App. 454, 192 So.2d 461 (1966). Where there is doubt or dispute under the evidence as to whether a witness is an accomplice, a question of fact for the jury, not the trial court, is presented. Jacks v. State, Ala.Cr.App., 364 So.2d 397, cert. denied, Ala., 364 So.2d 406 (1978).

The mere fact that a witness is indicted for the same crime as the defendant does not per se raise a presumption that he was an accomplice. Jacks, supra. Here, as in Clifton, Yarber, and Jacks, supra, the witness denied his participation in the crime charged against the defendant. The witness never admitted any involvement in the crime. Hence, under the witness’s testimony, the issue of whether the witness was an accomplice was a disputed fact for the jury, not the trial court. Yarber, supra. Because this issue remained a question for the jury, the denial of the appellant’s motion to exclude the State’s evidence for insufficient corroboration was not error. The jury was appropriately charged, the issue was placed fairly before them, and was determined adversely to appellant. Having determined that the issue of whether the witness was an accomplice presented a question of fact for the jury, we pretermit discussion of the sufficiency of the corroborative evidence.

II

Appellant contends the verdict of the jury must be set aside as a quotient verdict. At appellant’s motion for new trial it was stipulated that after the verdict was returned, defense counsel entered the jury room and found a sheet of paper. The sheet contained a column of numbers ranging from ten to 100 which had been totaled to reflect a sum of 455. This figure was then divided by twelve, giving the number thirty-eight. The jury fixed the appellant’s punishment at thirty-eight years’ imprisonment. Appellant contends this sheet of paper creates a fair inference that the verdict was a quotient verdict reached by previous agreement of the jury. As such, he contends it is not a true verdict and must be set aside.

The general rule is that where there are figures shown to have been used by the jury in its deliberation from which a fair inference may be drawn that the verdict was a quotient, the court will hold that it was a quotient verdict conditioned on a previous agreement, unless satisfactory countervailing evidence to the contrary is introduced by the State. Copeland v. State, 252 Ala. 399, 41 So.2d 390 (1949). This rule is founded upon the belief that “ ‘Verdicts found by lot are the issue of ignorance, passion, or indifference to the rights of life, liberty, and property, and [show] an utter disregard for the rules of law and fair deductions that should be made from the evidence.’ ” (Citations omitted). Harris v. State, 241 Ala. 240, 2 So.2d 431 (1941). However, it must appear that the jury consciously adopted such a plan and in fact agreed in advance to be bound by the quotient figure. Therefore, the vitiating fact is the agreement in advance to be bound by the result. Copeland, supra.

“So, if there be no previous agreement that the average estimate to be arrived at shall be binding and this plan of deliberating is adopted merely for the purpose of achieving a working basis, which the jurors are free to accept or reject as they see fit, a verdict to which the jurors subsequently agree is not regarded as a quotient one but is binding whether it is for a sum which is the average of the amounts fixed or for some other amount. Harris v. State, 241 Ala. 240, 2 So.2d 431; City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 268, 122 A.L.R. 637; Ewart v. Cunningham, [219 Ala. 399, 122 So. 359,] supra.” Copeland, supra.

Lewis F. Patrick, the foreman of the jury, testified at the hearing on the motion for new trial as follows:

“Q Now, if you would, tell us what procedure you and the other jurors used in determining the sentencing aspect of your decision?
A Well, first it was unanimous that he was guilty. I was the foreman. So, I gave each juror a piece of paper and told them to put down the number of years that they thought he should serve.
And they ranged anywhere from ten to one hundred. And while we were counting them up, I put each one down on a sheet of paper and added the total of them. And I divided that by twelve which came to 38.
I said, this is not a unanimous decision. We have a difference of opinion here. But, the average is 38 years. Is there any deliberations here? (sic) Is there any questions or anything and naturally there were. I said — ” (R. 133)
A “I asked each individual, not secretly, but around the table — we went around the table. I said, would everybody be in agreement with 38 since it is not a unanimous decision and each one said yes that was perfectly all right with them. That is what they would suggest.
Q Let me ask you this, Mr. Patrick; did you have an agreement or was it the agreement of the jury to be bound by the outcome or your mathematics on this thing?
A No, sir, I did not. There was no agreement whatsoever. The only time that they knew of the 38 was after I figured it up.
They didn’t even know what I was doing. There was no agreement whatsoever.
Q And I believe you said there was some discussion after this occurred?
A Right.
Q And do you recall after you handed your decision to the Judge, you being asked whether or not that verdict was your verdict?
A Right.
Q And all of the jurors were asked that same question, were they not?
A Right.
Q And to the best of your recollection, did everybody respond yes that was their verdict?
A Right.” (R. 134)

After reviewing Mr. Patrick’s testimony, we are of the opinion that there was no prior agreement among the jurors that a binding verdict was to be reached by the quotient formula. Rather, the method was used as a springboard for deliberation and discussion. The final verdict reached appears to have been the verdict of each and every individual juror. As such, the challenge to the jury’s verdict is without merit. Copeland, supra. Storie v. State, Ala.Cr.App., 390 So.2d 1179, cert. denied Ala., 390 So.2d 1184 (1980).

No prejudicial error to the substantial rights of appellant having been found in our review, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Albert C. WASHINGTON. (Re: Albert C. Washington v. State of Alabama).
    80-640.
    Supreme Court of Alabama.
    July 24, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


text:
    Walter Ray MATTHEWS v. STATE of Alabama.
    6 Div. 445.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Walter Ray Matthews was indicted for the February 28, 1980, first degree robbery of Mrs. Debra Perkins. The jury found the appellant “guilty as charged”. Pursuant to the Temporary Rules of Alabama Criminal Procedure, a sentencing hearing was held, and the trial court set the appellant’s punishment at twenty years’ imprisonment. From the conviction, he now appeals, in forma pauperis.

During the afternoon and evening of February 27 — 28,1980, Mr. and Mrs. William Perkins, Jr. attended the Southeastern Conference Basketball tournament being held at the Birmingham-Jefferson Civic Center. They left between 10:15 and 10:30 p. m. and had dinner at a local restaurant located in Homewood and three or four minutes from their motel, the Rodeway Inn. Around midnight, they left the restaurant and drove to their motel. As they drove into the parking lot, they noticed a car containing three or four people closely following them. Mrs. Perkins described the car as a big, heavy, light colored, older model with large headlights.

Mrs. Perkins testified that after they had parked their car, a 1979 two-door Oldsmobile Cutlass, the car following them sped around the motel corner. She could not identify the vehicle and never saw it again. While exiting from their car, two armed black males assaulted the couple and threatened to shoot them if they did not give them their money. Mrs. Perkins stated that one of the robbers grabbed her purse, containing $7.00 and some credit cards, held her arm, and pushed her into the motel wall. She saw his partner hit her husband on the jaw, breaking it, and take his billfold and car keys. The robbers then made the couple “stoop over” next to the motel as they fled in the car. The purse and billfold were subsequently returned.

Mrs. Perkins testified that the robbery was consummated within three or four minutes and that the area was well lit. She stated that she got a good look at her assailant and described him as a young black male in his late teens or early twenties with brown eyes, black hair, but without facial hair, wearing army colored fatigue pants and cap and a red-orange coat. She stated that she watched him and his gun because he appeared nervous and was shaking it.

The couple went inside the motel wherein they reported the robbery to two Jefferson County Deputy Sheriffs. Within five minutes Homewood Police Officer Phillip Dodd arrived and questioned them. Within thirty minutes of the robbery, the Perkinses were taken to another location in Birmingham where they identified their car and Mrs. Perkins identified one of two suspects in custody as her assailant. He was wearing the same clothing as when the robbery occurred. Mrs. Perkins testified that while being driven to their car, the police told her that they wanted them to identify their car and look at some individuals who had been fleeing from the car although they might not be their assailants. She made an in-court identification of the appellant as being the same person she had previously identified. After their car was processed for fingerprints, the Perkinses were taken to a local hospital where Mr. Perkins received medical treatment. Surgery was subsequently performed on his jaw.

Mr. Perkins testified to the events of the robbery in substantially the same manner as his wife. He stated that he could not describe or identify his wife’s assailant. He stated that while being transported to their car, Officer Dodd told them that they had apprehended a couple of suspects that they wanted them to view.

Birmingham Police Officer Michael Crawford testified that on February 27, he was working the 11:00 p. m. — 7:00 a. m. shift. Around 12:12 a. m. on February 28, 1980, he was on routine patrol and saw two cars parked in the parking lot at George Ward Park in Birmingham. He knew that the park closed at 11:00 p. m. Officer Crawford had not received any radio dispatch concerning the robbery. When he drove toward them, the two cars hastily exited the park. Officer Crawford met the cars as the left the park and identified them as a Chevrolet Impala and an Oldsmobile Cutlass each containing two occupants. His description of the passenger of the Cutlass was similar to that given by Mrs. Perkins of her assailant. He described the driver of the Chevrolet as a black male wearing a red shirt and a brown colored jacket.

Officer Crawford pursued the vehicles and found them abandoned on a street with their engines running, lights on, and doors open. During the chase he placed a bulletin on the radio concerning the vehicles, the driver of the Chevrolet, and the passenger in the Cutlass. He secured the scene and heard a dispatch concerning the Cutlass. Officer Crawford called for an evidence technician to process the vehicles. Officer Bobby Zeanah responded to the call and upon his arrival, Officer Crawford’s partner, Officer Ben Herron, turned over a .22 caliber pistol he had found in front of the Cutlass. About five to seven minutes after the chase, Officer Crawford saw the passenger from the Cutlass in the back of another patrol car. Officer Crawford identified the appellant as the passenger. Officer Crawford witnessed the Perkinses’ identification of the robbers as well as their car.

Birmingham Police Officer Bert Bowlin testified that in the early morning hours of February 28, he heard the bulletin placed on the radio by Officer Crawford and went to the scene of the abandoned cars. After talking to Officer Crawford, he began to search the area. Not more than ten minutes from the time he had heard the bulletin and within three or four blocks of the abandoned cars, he saw two black males, one wearing an orange colored jacket. He stopped and frisked them and transported them to the scene, telling the suspects that he was taking them to let someone look at them. When he returned to the scene, Officer Bowlin testified that Officer Crawford identified one of the suspects. Afterwards, Officer Bowlin arrested the suspects, gave them their Miranda rights, and transported them to jail.

Birmingham Police Officer Larry McDonald testified as to his fingerprinting of the appellant at the city jail and identified a copy of them. He stated that they were made in the regular course of business and that with the exception of some numbers on the fingerprint card, it was in the same condition today as when he had made it.

Homewood Police Officer Phillip Dodd testified to his February 28, 1980 interview with the Perkinses. He transported them to identify their car and the suspects.

Birmingham Evidence Technician Robert Zeanah testified to his February 28, 1980, processing of the two abandoned vehicles. He lifted several latent fingerprints from both cars. He received the pistol found by Officer Herron but could not lift any fingerprints from it. He separated the latent fingerprint lifts, placed them in separate envelopes, and on the same day placed them in a locked box located at the ID Bureau at City Hall. After examining the lifts, Officer Zeanah stated that with the exception of some writing on the lift cards, they were in the same condition as when he had made them.

Birmingham Fingerprint Technician Sandy Triplett testified that she was in charge of the ID unit of the Birmingham Police Department. After testifying on her qualifications, Mrs. Triplett stated that she made the copy of the appellant’s fingerprint card which is submitted, as all fingerprint cards made at the city jail to her unit, as a matter of routine business. She stated that she had seen the latent fingerprint lifts made by Officer Zeanah and that they had been under her unit’s custody and control since February 28, 1980.

Mrs. Triplett testified that with an employee' in her unit she made independent comparisons of the submitted fingerprints. She stated that several prints found on the Cutlass and one found on a beer bottle found in the Chevrolet were made by the appellant.

Mrs. Triplett’s testimony concluded the State’s presentation of its case.

The appellant moved to exclude the state’s evidence, which the trial court overruled.

I

Appellant contends that the trial court erred in overruling his motion to exclude the state’s evidence and denying his motion for a new trial on the ground that the state failed to prove a prima facie case of first degree robbery.

After a careful review of the state’s evidence, we find the evidence sufficient for the jury to have found the appellant guilty of the charged crime. Consequently, the trial court properly overruled both motions, §§ 13A-8—41, -43 Code of Alabama 1975 (Supp.1977); See generally Warren v. State, 261 Ark. 173, 547 S.W.2d 392 (1977).

II

Appellant asserts that the trial court erred in overruling his demurrer to the indictment, contending that it is vague and confusing.

Omitting the formal parts, the indictment reads: (R. 207)

“. .. WALTER RAY MATTHEWS, whose name is otherwise unknown to the Grand Jury, did, in the course of committing a theft of one lady’s purse and Seven Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the property of Debra Virginia Bell Perkins, used force against the person of Debra Virginia Bell Perkins, or against the person of another present, with intent to overcome her physical resistance or physical power of resistance, while the said WALTER RAY MATTHEWS was armed with a deadly weapon, a pistol, in violation of § 13A-8-41 of the Alabama Criminal Code. . . . ”

Section 13A-8-41(a)(l) Code of Alabama 1975 (Supp.1977), states:

“A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
(1) Is armed with a deadly weapon or dangerous instrument; ...”

Section 13A-8-43(a)(l) Code of Alabama 1975 (Supp.1977), states:

“A person commits the crime of robbery in the third degree if in the course of committing a theft he:
(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; ...”

If there is no indictment form for an offense set out in Code § 15-8-150, then an indictment which closely parallels the language of the statute creating the offense is generally valid. Harrison v. State, Ala.Cr.App., 384 So.2d 641 (1980).

Pursuant to § 15-8-25 Code of Alabama 1975, an indictment must state the facts constituting the offense, in ordinary and concise language, in such a manner as to enable a person of common understanding to know what is intended. It must likewise inform the accused not only of the nature of the offense, but also of the particular act or means by which it was committed. Harrison, supra, at 643.

We find the indictment form used in the instant case to have clearly, intelligently, and properly apprised the appellant of the crime with which he was charged. Thus, the trial court correctly overruled the appellant’s demurrer.

Ill

Appellant contends that his in-court identification by Mrs. Perkins should have been suppressed as it was impermissibly tainted by a suggestive showup at the scene of the abandoned vehicles, and an improper display of his photograph to Mrs. Perkins at his preliminary hearing.

A

There is no prohibition against a viewing of the suspect alone in what is termed a “one-man showup” when such occurs near the time of the alleged incident. It does not tend to being about misidentifi-cation, but rather, tends to insure accuracy. Bates v. United States, 405 F.2d 1104 (D.C.Cir.1968).

In the case sub judice, the view was of two suspects. It occurred within thirty minutes of the robbery after Mrs. Perkins had viewed, under good lighting conditions, her assailant for three to four minutes. Furthermore, her description of his clothing was made with detail and specificity. In addition, Mrs. Perkins testified during the appellant’s motion to suppress hearing that her identification at the scene of the abandoned vehicles was based upon her observations made at the time of the robbery.

Under these circumstances, we see no impermissible suggestiveness in the two-man showup so as to taint the in-court identification. Donahoo v. State, Ala.Cr.App., 371 So.2d 68, cert. denied, Ala., 371 So.2d 74 (1979); Douglas v. State, Ala.Cr.App., 366 So.2d 373 (1979); Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623 (1973); Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972). Thus, appellant’s assertion is without merit.

B

At appellant’s motion to suppress hearing, which focused primarily upon his second assertion of error, Mrs. Perkins testified that at the appellant’s preliminary hearing she identified the appellant as her assailant. She stated that she was shown a photograph of the appellant by a police officer after she made her identification. She testified that each identification of the appellant was based upon the events which transpired during the robbery and her observations thereof at that time.

Mr. Tim Massey, a practicing attorney in Birmingham, testified that on the day of the appellant’s preliminary hearing he was representing the appellant’s co-defendant and was present during Mrs. Perkins’ identification of the appellant. Mr. Massey testified that “she seemed to be a little doubtful as to the identification” of the appellant. He stated that Mrs. Perkins was shown the appellant’s photograph prior to her identification of him. Mr. Massey stated that he did not know if she had made any prior identification of the appellant.

When an in-court identification is shown to have a basis independent of any pretrial identification or confrontation, it is properly admitted in evidence. Welch v. State, Ala.Cr.App., 384 So.2d 638 (1980); Speigner v. State, Ala.Cr.App., 369 So.2d 39, cert. denied, Ala., 369 So.2d 46 (1979).

As we stated in Matthews v. State, Ala.Cr.App., 361 So.2d 1195, 1198 (1978),

“Whether an in-court identification has been so tainted by an extrajudicial identification as to vitiate the in-court identification is not to be determined solely by the circumstances of the extrajudicial identification, but all of the circumstances relative to the identification of defendant by the witness are to be taken into consideration, and if it is determinable therefrom that an in-court identification was independent of the extrajudicial identification, evidence of the in-court identification is admissible.” (Citations omitted)

The mere fact that a witness is shown photographs does not establish suggestiveness. Henderson v. State, Ala.Cr.App., 373 So.2d 1218, cert. denied, Ala., 373 So.2d 1221 (1979).

In view of the totality of the circumstances, we do not find the in-court identification of the appellant tainted by the exhibition of his photograph to Mrs. Perkins. The evidence is uncontradicted that she based each identification of the appellant upon her recollection of the events surrounding the robbery and observations thereof.

We are convinced that Mrs. Perkins’ view of the appellant’s photograph had little if any influence upon her in-court identification of him.

Consequently, we find no error in the trial court’s denial of the appellant’s motion to suppress and its overruling of his objection to this in-court identification.

IV

Appellant contends that the trial court denied him the opportunity to confront and cross-examine Officer Crawford, by refusing to allow him to conduct a voir dire examination of the witness. Appellant’s request was made during the direct examination of Officer Crawford and immediately prior to his identification of the appellant as the passenger in the Cutlass. The appellant conducted a thorough cross-examination of Officer Crawford.

In Shelton v. State, Ala.Cr.App., 384 So.2d 869, 870, cert. denied, Ala., 384 So.2d 871 (1980), we stated:

“A trial court is not obliged to take witnesses out of turn merely because opposing counsel wants to examine them on voir dire at counsel’s convenience. The trial judge is vested with discretion in the conduct of a trial, and appellate courts will not interfere unless there has been a clear abuse of that discretion.... The trial judge has a duty to move the testimony expeditiously along.” (Citations omitted.)

No abuse of the trial court’s discretion occurred in its refusal to interrupt the examination of a witness to allow opposing counsel to examine the witness on “voir dire.” Harris v. State, Ala.Cr.App., 371 So.2d 979, cert. denied, Ala., 371 So.2d 984 (1979).

V

Lastly, appellant contends that the trial court erroneously admitted evidence illustrating his commission of a separate and distant offense.

During the direct examination of Birmingham Evidence Technician Robert Zeanah the following occurred:

“Q The lifts that you made on both of these automobiles, what did you do with them?
A They were placed—Each case being separate, they were placed in their appropriate . . .
A And both manila envelopes were placed in that box at City Hall.” (R. 103)

We see no error. Officer Zeanah could have been referring to the separation of the fingerprints by vehicles, defendants, crimes, or defendant and crime. Furthermore, this portion of his testimony was offered to establish the requisite chain of custody for the subsequent introduction of the relevant fingerprints into evidence.

The record does not support the appellant’s contention. Thus, the trial court did not err in overruling his objection to the admission of this testimony.

We have carefully examined the record and find same to be free of error. The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Walter Ray MATTHEWS. (Re Walter Ray Matthews v. State of Alabama).
    80-619.
    Supreme Court of Alabama.
    July 24, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Harlin Philip SERRITT, Jr., alias v. STATE of Alabama.
    6 Div. 487.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.
    Albert C. Hultquist, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Harlin Philip Seritt, Jr., was indicted for the robbery of David Wilson by taking some two hundred dollars ($200.00) from his person, against his will, etc., the money being the property of Howard Johnson Motel at Vesta via, Jefferson County, Alabama.

The jury found the appellant “guilty of robbery in the first degree as charged” and after a separate sentencing hearing, at which the appellant’s past criminal record was placed before the trial judge, the appellant was sentenced to life imprisonment without parole under the Alabama Habitual Offender Act. It is from these proceedings at the trial that appellant prosecutes this appeal.

David Wilson testified that on May 6, 1980, he was employed at the Howard Johnson Motor Lodge in Vestavia, Jefferson County, Alabama, located on the Montgomery Highway. Wilson indicated that he had just been to one of the branch banks and cashed some checks for the motel and one for a customer, returned to the motel and walked behind the registration desk where he handed one hundred dollars in five dollar bills to his fellow employee, Christine Pennington.

Wilson related that he placed the two hundred dollars in twenty dollar bills in his pants pocket and as he turned around a white male, whom he positively identified in open court as the appellant, approached him and stated, “Give me the money.” Wilson testified that he replied “No” to the appellant and the appellant then stated that if he did not deliver the money to him that he “would shoot him.” The appellant then came around the registration desk and placed a knife in his side and again demanded the monies. Wilson testified that Seritt then slit the front of his slacks with his knife, making approximately a four inch cut, and removed the two hundred dollars in twenty dollar bills from his pants pocket. Seritt then turned to Ms. Pennington and demanded the funds which she had and she handed him one hundred dollars as he pointed the knife at her.

Seritt then ran out of the motel and got into a Buick automobile being driven by a white female with a black female seated on the passenger seat and then drove away.

Wilson stated that he followed the appellant to the front door and wrote down the license plate number and gave it to Ms. Pennington, who had the Vestavia Police Department on the telephone.

Wilson identified in court several photographs made of the motel and also identified a knife which had been pointed at him in the motor lodge by the appellant.

Wilson also testified that a short time later he went to the Vestavia Police Department and there identified the appellant, Seritt, as the party who had taken the monies from him at the motel a short time before.

Christine Pennington testified that she worked with David Wilson at Howard Johnson Motor Lodge in Vestavia, located at the intersection of Green Springs Road and U. S. 31 on May 6, 1980. Ms. Pennington testified that David Wilson went to a branch bank to cash a check for a motel guest and to get some funds for the motel shortly before one o’clock p. m.

A few moments later, as Wilson handed her one hundred dollars in five dollar bills, she observed a white male, whom she identified in open court as Seritt, approach David Wilson. Ms. Pennington corroborated Wilson’s testimony as to appellant’s threat to shoot them, the cutting of Wilson’s slacks and removal of the cash therefrom and pointing the knife at her, and the turning over by her of the one hundred dollars in five dollar bills. She also testified as to Wilson writing down the tag number of the vehicle which Seritt left in and that she reported this number to the Vestavia Police Department. Ms. Pennington stated that in less than thirty minutes she and Wilson went to the Vestavia Police Department and identified Seritt and also the knife he used in the robbery.

Mountain Brook Police Officer Kenneth Watkins, Sr. testified he received a lookout call on his police radio shortly after one o’clock on the afternoon of May 6, 1980. The call described a 1972 Buick automobile, giving the tag number and describing a white male and the other two occupants as being a white female and a black female. Officer Watkins stated that he encountered a vehicle in the 3700 block of Shades Crest Road in Jefferson County fitting the description given and that he noticed that the car was stopped by a Vestavia Police vehicle.

Officer Watkins stated that he walked to the vehicle, told the appellant, whom he identified in open court, to get out and place his hands on the vehicle where he patted him down and removed a knife from the appellant’s pocket, which he subsequently marked with his own initials, “K.W.”, and several hundred dollars in U. S. currency. Watkins stated he placed the currency and the knife in a brown paper bag which he initialed and carried to the Vestavia Police Department and delivered same to Sergeant Kines. Officer Watkins testified that the Buick was being driven by a white female and a black female was on the passenger side as he drove up. He then identified a photograph made of the vehicle at the scene by another officer.

Sergeant Joe Kines of the Vestavia Police Department testified that Mountain Brook Police Officer Kenneth Watkins brought him a brown paper bag about 1:15 or 1:30 on the afternoon of May 6, 1980, and that Officer Watkins cut his initials in a knife in his presence and identified the knife as the one having been removed from the appellant, Harlin Philip Seritt, Jr. Sergeant Kines also stated he received three hundred dollars in U. S. currency from Officer Watkins, two hundred dollars being in twenty dollar bills and one hundred in five dollar bills, all monies which had been removed from the person of appellant. These funds were then photographed and marked.

The appellant’s motion to exclude the state’s evidence for failure to produce a prima facie case was overruled and thereafter the case was presented to the jury without the appellant testifying or offering any other testimony in his behalf.

The trial court gave an extensive oral charge to which no exception was taken.

Following the jury verdict, the cause was adjourned for thirty days for a presentence investigation. The sentencing hearing was conducted approximately one month after trial.

I

We have carefully examined the record and determined that the State of Alabama properly presented a prima facie case. Tarver v. State, 53 Ala.App. 661, 303 So.2d 161 (1974); Herndon v. State, Ala.Cr.App., 373 So.2d 1244 (1979); Golston v. State, Ala.Cr.App., 371 So.2d 471 (1979) and Casher v. State, Ala.Cr.App., 368 So.2d 565, cert. denied, Ala., 368 So.2d 567 (1979).

II

Appellant asserts that the trial court erred at his sentencing hearing by not considering several offenses which had been committed by the appellant, growing out of a common event or occurrence as one offense, for the purposes of sentencing him rather than several offenses, even though the appellant had plead guilty as to each of four drug offenses after conferring with his attorney. These sentences were all entered on the same date.

We have carefully examined the transcript of the sentencing hearing and found that each of four separate sentences for violating the Alabama Uniform Controlled Substances Act were entered by the appellant on March 5, 1975. Certified copies of each of these proceedings were placed in evidence before the Circuit Judge, being Jefferson County Circuit Court Number 32047, 32048, 32049 and 32098. Harlin Philip Seritt, the appellant, had entered guilty pleas after conferring with his attorneys in each of these cases and had been separately sentenced in each case. The record affirmatively reflects representation by skilled counsel when the guilty pleas were recorded in open court with the appellant being present. Each of these four offenses involved the unlawful sale of prohibited substances regulated by the Alabama Uniform Controlled Substances Act.

Likewise, the records of Jefferson County Circuit Court Number 28264 showing a guilty plea and sentence for violating the Alabama Controlled Substances Act was also placed in evidence at this hearing. This charge also involved the sale of a prohibited substance and was entered in open court following a guilty plea on November 14, 1973. The appellant was also represented by competent counsel in this proceeding.

The appellant’s contentions have been determined adversely to him in an opinion written for this court by Judge DeCarlo and reported as Watson v. State, Ala.Cr.App., 392 So.2d 1274 cert. denied, Ala., 392 So.2d 1280 (1980). See also Rummell v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

This opinion also determines the constitutionality of such punishment under Section 13A — 5—9, Code of Alabama 1975 as amended 1979.

As in Watson, supra and Thatch v. State, Ala.Cr.App., 397 So.2d 246 (1981), the trial court properly determined that the appellant had been represented by counsel at the time of each of his prior convictions showing compliance with Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) and Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975).

Ill

Appellant next contends that the sentences imposed in the ease involved were in violation of the eighth amendment of the Constitution of the United States prohibiting “cruel and unusual” punishment, by retroactively imposing additional punishment for offenses previously committed. This contention was rejected by the Supreme Court of the United States in Rummell v. Estelle, supra, and by this court in Watson, supra and Holley v. State, Ala.Cr.App., 397 So.2d 211 (1981). See also McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901).

Likewise such punishment under the provisions of § 13A-5-9, Code of Alabama 1975, as amended 1979 is not an invasion or usurpation of powers of the legislative or executive branches of government, Holley v. State, supra.

We have carefully examined this record and find no error therein. The judgment of the trial court is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Harlan Philip SERITT, Jr. (Re: Harlan Philip Seritt, Jr., alias v. State of Alabama).
    80-603.
    Supreme Court of Alabama.
    July 31, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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