author: DeCARLO, Judge.

text:
    Willie WHETSTONE v. STATE.
    3 Div. 321.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      Charles Price, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffrey H. Long, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Murder; ten years.

This is a vehicular homicide case. The appellant was indicted under Ala.Code § 13A-6-2(a)(2) (Supp.1977) for causing the death of another person while recklessly engaging in conduct which created a grave risk of death to a person other than himself under circumstances manifesting extreme indifference to human life. The appellant was charged specifically with causing the deaths of Mary Miniará and Floyd Edwards by his operation of a motor vehicle while under the influence of intoxicating liquors or narcotic drugs.

Taken in the light most favorable to the State, the evidence tended to show that the appellant’s Pontiac collided with a Pinto automobile, killing the occupants in the Pinto, Floyd Edwards and Mary Miniará, at approximately 1:00 A. M. on May 3, 1980. In checking the extent of the appellant’s injuries as he lay “slumped over the wheel,” the officers who arrived on the scene detected a “strong odor of an alcoholic nature about his person.” Hospital records were introduced into evidence, over objection which, indicated that appellant’s blood had a .23% ethyl alcohol content. There was no suggestion that either of the victims were under the influence of drugs or alcohol.

The appellant testified in his own behalf that he had had two mixed drinks and half a beer at a party over a period of approximately three and a half hours prior to the accident. He stated that he had his last drink “twenty or thirty minutes” before he left the party.

The crux of this appeal concerns what effect the admission of hospital records has on proving the chain of custody of evidence. Specifically, we are faced with the question whether the introduction of hospital records in conformity with Ala.Code §§ 12-21-5, -6, —7, (1975) dispenses with the requirement that the chain of custody for a blood sample allegedly taken from the appellant be proved.

Mr. Robert L. Baines, a medical laboratory technologist testified for the State that Alabama Reference Laboratories, Inc., the company by whom he was employed, did “blood work” for St. Margaret’s Hospital in Montgomery. Defense counsel questioned the witness on voir dire examination and ascertained that Mr. Baines had not taken the blood sample in question from the appellant. Defense counsel then vigorously objected to any further testimony by Mr. Baines concerning the blood sample until it was “shown that someone duly qualified and licensed took the blood sample from him.”

Outside the presence of the jury, defense counsel argued that the State had not followed the guidelines set out in Patton v. City of Decatur, 337 So.2d 321 (Ala.1976), relating to Ala.Code § 32-5-193 (1975) , which deals with the proper methods approved by the State Board of Health for the admission of intoxication results. This statute is commonly known as the Alabama Implied Consent Law.

The assistant district attorney informed the trial court that “the State is not proceeding under the terms of the Implied Consent Law. We have no intention whatsoever of trying to get into evidence the presumptions that arise therefrom.”

Indeed, there is no requirement that § 32 — 5-193 be used as the exclusive means for admitting intoxication test results. The Alabama Supreme Court recently stated in McGough v. Slaughter, 395 So.2d 972, 975 (Ala.1981):

“The legislature has by statute remedied many of the problems involved in laying a foundation for admission of intoxication test results, at least where the action arises from operation of a vehicle. See Code 1975, § 32-5-193.
“Under [such a statute], the questions of relevancy, and to a large extent of weight, of the evidence, have thus been legislatively resolved. The [statutory intoxication] presumptions have been upheld by the courts . . . and the prescription for test procedures adopted by the state health agency had been taken as acceptance of the general reliability of such procedures in showing blood-alcohol content.
“E. Cleary, McCormick’s Handbook on the Law of Evidence § 209 at 513 (2nd ed. 1972) (footnotes omitted).
“A party offering results from tests shown to be given in conformity with the statute is relieved of the burden of laying the extensive predicate generally necessary for admission of scientific test results.”

While it is unnecessary for the prosecution to resort to a chemical test in order to make out a prima facie case of vehicular homicide, Patton, 337 So.2d at 324; Commander v. State, 374 So.2d 910, 917 (Ala.Cr.App.1978), writ quashed, 374 So.2d 921 (Ala.1979), if a party wishes to have the results of a blood alcohol test admitted into evidence he has two choices; either he must show that the tests were taken in conformity with § 32-5-193, or he must lay the proper foundation for their admission under general evidence principles. McGough, 395 So.2d at 977. The admission of blood alcohol test results for which neither of these procedures is followed results in reversible error. McGough, supra.

Since the State conceded that it was not proceeding under § 32-5-193 because it could not meet the requirements of that section, it was incumbent upon the State to lay a proper foundation for the admission of the appellant’s blood alcohol test results under general evidence principles. McGough, supra. Following this alternative it was necessary for the State to establish that procedures were followed which would insure the reliability of the test results. In order for the test results to be reliable, and thus relevant to the matter at issue, the results must be from generally accepted tests conducted under conditions which do not impeach the reliability of the testing procedure. McGough, 395 So.2d at 977. The burden of laying the predicate generally necessary for the admission of scientific test results is extensive, McGough, supra.

With these principles in mind, we must now look to the record to see how the State attempted to meet its burden of proof under general rules of evidence. After the State’s admission that it was not proceeding under § 32-5-193, the following exchange occurred:

“MR. PRICE: He’s going to have to show the chain, so he’s going to have to bring her in.
“MR. BELL: Judge, on the second page of this document that I have here, and this is really all I care about getting into evidence, it shows that a blood alcohol test was ordered.
“On the page, on State’s Exhibit No. 4, I have another medical record which shows, 5-3-80, which was the date of the accident, at 4:20 A. M., and this is a record from St. Margaret’s Hospital, we show that a specimen was taken from a Willie Whetstone at the Emergency Room. The doctor was Chastain, which is the same doctor that appears on the medical records. The test was a blood alcohol test. . . .”
“MR. PRICE: Your Honor, irrespective of the witness, of Dr. Chastain or Mr. Baines, Mr. Bell is going to have to show the chain, or what happened to that blood test after Dr. Chastain took the blood and then submitted it to whomever he submitted it to, and how it came into the possession of Mr. Baines.
“THE COURT: What about that chain, Mr. Bell?
“MR. BELL: Judge, it’s the State’s position that if this witness can identify the blood sample that he examined as being the same blood sample as appears on that record and as appears on that record then any chain that there might have been-would go to the weight of the blood alcohol test as opposed to the admissibility.”

Continuing on voir dire examination by defense counsel, Mr. Baines testified that he received the blood sample in question from his immediate superior, Mrs. Brenda Dur-den. Mr. Baines stated that he did not know from whom Mrs. Durden had received the blood sample. Defense counsel then remarked:

“Now, there’s no way he can testify that’s the same blood sample. You’ve got too many people in between.”

Mr. Baines then testified for the State that the blood sample he tested “was marked with the date that it was drawn by the patient’s name, the hospital it came from, and the physician who ordered it.” He stated that the above information on the vial of blood he examined corresponded with the hospital records in question. Mr. Baines’s voir dire was concluded with the following exchange:

“MR. PRICE: Judge, those medical records do not cover any action by Mrs. Durden. The medical records from the hospital simply show, catalogue, what the physician and nurses did, and I admit the medical records can come in under this Code of Alabama but they don’t cover Mrs. Durden’s actions of what she did with the blood sample after it was given to her.
“Now, the chain has to be established.
“MR. BELL: Judge, it’s the State’s position that what we have there is a business record—
“THE COURT: And you’re saying the business records establish the chain?
“MR. BELL: I’m saying that I could introduce the business records apart from anything else and of such and such and it would be admissible. In my opinion and judgment, that’s the purpose of the business record is establishing things that were done in the ordinary course of business.
“MR. PRICE: The, Judge, he cannot testify. He can introduce that business record, but Mr. Baines is not competent to testify about the blood test being taken and getting to him, and then I would conclude, and then not about the results of the blood test.
“The business record could be established simply to show business records, and there can be no testimony about them by Mr. Baines about the blood test being taken — ”

The trial court decided to allow Mr. Baines to testify before the jury and to “determine later on whether to leave that testimony in.” Mr. Baines was presented to the jury as “an expert witness on blood alcohol analyses.”

Mr. Baines was permitted to testify from the hospital records in question that he tested a blood specimen corresponding to a “particular entry” on a St. Margaret’s Hospital record, which “identified” the specimen as belonging to the appellant, and “got the results of 0.23% ethyl alcohol.” The hospital records from which Mr. Baines had testified were then introduced over objection.

A close examination of those hospital records reveals the following facts, and the following facts only, which are pertinent to the issue before us:

(1) Appellant was admitted to the emergency room at St. Margaret’s Hospital at 1:20 A. M., on May 3, 1980; (2) sometime after appellant was admitted Dr. Chastain ordered a blood alcohol test on appellant’s blood; (3) someone allegedly withdrew a specimen of appellant’s blood at 4:20 A. M. on May 3, 1980; (4) a laboratory report from Alabama Reference Laboratories, Inc., completed on May 5, 1980, which was introduced as part of appellant’s hospital records, indicated that the blood specimen allegedly taken from appellant had a 0.23% ethyl alcohol content.

There is no evidence in the hospital records, or elsewhere in the record, demonstrating who actually withdrew appellant’s blood or what technique was used in withdrawing the blood sample. For example, the hospital notation does not state whether or not an alcohol wipe was used before the blood was extracted. See State v. Guthrie, 85 S.D. 228, 180 N.W.2d 143 (1970). Assuming that the blood specimen Mr. Baines examined was actually taken from the appellant there is no evidence of what was done with the specimen after it was taken and before it reached Mr. Baines.

The State offered no witnesses from St. Margaret’s Hospital where appellant’s blood sample was allegedly withdrawn. Mr. Baines testified that he was not at the hospital when the blood was taken, that he did not know who took appellant’s blood or how it was taken, that he received the blood sample from Mrs. Durden and that he did not know from whom she received it. Mrs. Durden did not testify.

At the risk of being repetitive, assuming the blood sample in question was appellant’s blood, the hospital records which were introduced shed no light whatsoever on what technique was used in withdrawing his blood, what efforts, if any, were used to preserve the specimen, how many times the blood sample changed hands, or what happened to the sample each time it changed hands. In short, there is a huge gap of missing information concerning the blood sample allegedly taken from appellant. There is simply no evidence that the blood sample tested by Mr. Baines was in the same or in substantially the same condition as the blood sample allegedly withdrawn from appellant.

In contrast, in Delarosa v. State, Ala.Cr.App., 384 So.2d 876, cert. denied, Ala., 384 So.2d 880 (1980), the State’s evidence proved the entire sequence of events from the time the accused’s blood was extracted to the time it was submitted to the testing specialist. This court implicitly recognized the necessity of establishing an unbroken chain of custody for a blood sample in Dela-rosa, supra at 877-78. There, we stated:

“Dr. Austin . .. authorized registered nurse Nina Green to extract blood from appellant for routine lab work.
“While at the scene of the accident Corporal Nelson directed Trooper Raymond Dawson Smith to go to Jackson Hospital and obtain a specimen of blood from the appellant to determine his blood alcohol level. At approximately 1:00 A. M. on May 26,1979, nurse Nina Green extracted a blood sample from the appellant with his consent and turned the sample over to Trooper Smith. This extraction of blood was in addition to the one authorized by Dr. Austin.
“After the proper chain of custody was testified to, Criminalist Allen Adair, a drug identification and blood alcohol analysis expert with the Alabama Department .of Forensic Sciences, testified that his analysis of the appellant’s blood sample revealed a blood alcohol level of .22 grams percent by weight of ethyl alcohol.” [Emphasis added)

Based on the above facts, or lack of facts, we hold that the information contained in appellant’s hospital records falls short of proving the necessary chain of custody for the blood sample allegedly withdrawn from him.

In Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953) the Alabama Supreme Court stated:

“The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time of the offense.”

To establish a sufficient predicate for admission into evidence it must be shown that there was no break in the chain of custody. Identification and continuity of possession must be sufficiently established to afford ample assurance of the authenticity of the item. Ex parte Yarber, 375 So.2d 1231, 1234 (Ala.1979). “A party need not negative the remotest possibility of substitution, alteration or tampering with the evidence.” Mauldin v. State, Ala.Cr.App., 402 So.2d 1106 (1981); Lynn v. State, Ala.Cr.App., 380 So.2d 366 (1980); Murrell v. State, Ala.Cr.App., 377 So.2d 1102, cert. denied, 377 So.2d 1108 (Ala.1979).

In Sexton v. State, Ala.Cr.App., 346 So.2d 1177, 1180, cert. denied, 346 So.2d 1180, we find:

“To warrant the reception of an object in evidence against an objection than an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.”

Unlike the “weak link” in the chain of custody discussed in Langford v. State, Ala.Cr.App., 354 So.2d 297, reversed on other grounds, 354 So.2d 313 (Ala.1977), we are here confronted with “missing links” in the chain of custody. Where “missing links” are involved in the chain of custody the question presented is one of admissibility rather than credibility. Mauldin, supra.

Moreover, it cannot be said that Mr. Baines’ testimony that appellant’s blood sample registered 0.23% ethyl alcohol was harmless. Following Mr. Baines’ testimony the State called Dr. C. J. Rehling, retired Director of the Department of Forensic Sciences. Dr. Rehling testified in great detail as to how one laboring under a 0.23% blood alcohol level would function. Without detailing all his testimony we have set out certain portions which are representative:

“I ... have observed a number of subjects under those levels . . . both with the police department and experimentally. That level of blood alcohol characterizes what is commonly referred to as a dizzy and delirious stage characterized by a staggering gait, a thick tongue, and bleary eyes, heavy eyes. The subject is conscious only of his environment right close up to him. You have difficulty getting his attention. He very often holds on to objects in order to do any walking, and he is obviously under the influence to any observer.
“It would very seriously affect the driving ability of the human subject.. . . The judgment centers are virtually put to sleep by that kind of level....
“The function so involved in driving a vehicle in traffic is very important for it, first of all, judgment and attitude and that is the first thing to be depressed by alcohol.
“Also, the matter of speed of recognition, namely, it takes time to recognize an incident ahead of us as we drive.... That decision making process is gradually slowed down more and more, and it’s well slowed down by this amount of blood alcohol level.
“Also, the hearing of the subject is impaired and he is not cognizant of any sounds which normally he would recognize and respond to.”

In the light of the above, the devastating effect of Mr. Baines’ testimony, was obvious.

In our judgment, Mr. Baines’ testimony regarding appellant’s alleged blood alcohol level should not have been admitted because under general evidence principles the State did not prove a sufficient chain of custody for the blood sample. The final question to be resolved is whether the introduction of appellant’s hospital records, specifically that report from Alabama Reference Laboratories, Inc., indicating that appellant had a 0.23% ethyl alcohol content, negated the requirement which otherwise existed, that the State prove the chain of custody before admitting Mr. Baines’ testimony. We answer that question negatively.

Appellant’s hospital records were properly prepared and certified in conformity with Ala.Code §§ 12-21-6, -7 (1975). The language that causes problems in their admission is found in § 12-21-6 and reads as follows.

“When so prepared and certified, the copy of said hospital records shall be admissible in evidence in any court in the state, if and when admissible, in prima facie proof of the facts therein shown just as if otherwise verified and just as if the copy were the original. . . . ”

At first blush it would seem that if a copy of hospital records was prepared and certified in accordance with §§ 12-21-6 and 12-21-7 then the information therein automatically becomes admissible as prima facie evidence, no matter what information was contained in the original hospital records, and no matter how the information in the originals was developed or by whom. Plainly, that is a misreading of the statute. §§ 12-21-6 and 12-21-7 must be read in conjunction with § 12-21-5.

Section 12-21-5, Alabama Code, supra, in pertinent part reads:

“When the original would be admissible ... a certified copy . .. when certified and affirmed . .. shall be admissible in evidence, without further proof in any court in the state where admissible, if and when. . . . ” (Emphasis added)

Clearly then, for a copy of a hospital record to be admissible and, thus, “be admissible” as to “prima facie proof of the facts therein” the original hospital records themselves would have had to be admissible. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, 369, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975).

Section 12-21-5 does not authorize, without qualification the carte blanche admission of all hospital records. Lowery v. State, 55 Ala.App. 511, 317 So.2d 357 (1974), rev’d on other grounds, 294 Ala. 347, 317 So.2d 360 (1975). As Judge Almon wrote for this court in the first Lowery opinion:

“It can therefore be seen that the statute merely provides a procedure by which copies of hospital records when properly certified may be introduced into evidence without the production of the original and without the custodian of these records being present to lay a predicate. If they are otherwise admissible we see no reason to place any construction on this statute in this regard other than has been placed upon Tit. 7, § 415, (§§ 12-21 -A3, 44) Code, supra. In other words, the test of relevancy still pertains as well as the opinion evidence rule and other applicable rules of evidence. 317 So.2d, at 360 (Emphasis added)

And in the second Lowery opinion authored by Judge Bookout of this court we held the following:

“Hearsay in documents does not become admissible by merely having a custodian certify a copy to be the same as the original document. Here the copies of the hospital records could have been admitted without parol evidence of authenticity only if the original records were admissible. ...
“[T]he State cannot unlock the flood gate with Act No. 77 (§§ 12-21-5, 6, 7), supra, and unleash a torrent of otherwise inadmissible hearsay evidence.
“We further hold that where Act No. 77, supra, is used to prove a material element in a criminal prosecution, there may arise a strong probability that the defendant may be denied his right to be confronted by witnesses and to cross examine them pursuant to Article 1, § 6, Constitution of Alabama 1901 and Amendment Six and Fourteen of the United States Constitution.” 317 So.2d at 369, 370.

Thus, an accused may properly object and have excluded any portion of a copy of his hospital records where the information to which he objects would be inadmissible under general rules of evidence. Since no chain of custody was established in this case for the blood sample which was analyzed in the report by Alabama Reference Laboratories, Inc., that report should not have been admitted along with the other portions of appellant’s hospital records. Defense counsel’s repeated objections to the chain of custody not being established for the blood sample sufficiently preserved this question for review.

We find the following case discussed in Annot., 31 A.L.R.2d 1216 (1952) enlightening to our discussion. In McGowan v. City of Los Angeles, 100 Cal.App.2d 386, 223 P.2d 862, 21 A.L.R.2d 1206, 1211 (1950), a California District Court held the results of a blood alcohol test inadmissible by writing:

“We assume, although neither the paper which was marked for identification nor the bottle which was not offered is before us, that the paper states the analysis showed a concentration of .16% alcohol in the contents of the bottle.
“Section 1920 reads: ‘Entries in public or other official books or records, made in the performance of his duty by a public officer of this state, or by another person in the performance of a duty specially enjoined by law are prima facie evidence of the facts stated therein.’ If it had been proved that the blood analyzed by the county coroner’s office had been taken from the body of Cox before any extraneous matter had been injected into his body, the coroner’s record of the analysis would have been admissible and pri- ma facie evidence of the facts therein stated.” [Emphasis added]

We conclude that while a copy of an accused’s hospital records in Alabama is admissible in criminal prosecutions, see An-not., 69 A.L.R.3d 22 (1976), and can relate to the intoxication of patients where a proper foundation is laid, see Annot., 80 A.L.R.3d 456 (1977), a hospital record cannot render evidence admissible which would otherwise be inadmissible.

The results of Mr. Baines’ test played an extremely important part in the State’s burden of proving the requisite degree of reckless conduct necessary to support a conviction for murder. The evidence of intoxication was conflicting and, under the circumstances, the result of the test was extremely prejudicial to the appellant. Commander, 374 So.2d at 917. This error in proving the chain of custody for the blood sample violated fundamental rules of evidence and requires that the judgment of conviction be reversed.

REVERSED AND REMANDED.

All the Judges concur.

      . Repealed by Acts 1980, No. 80-434, § 15-106, effective May 19, 1980. Replaced by Ala. Code § 32-5A-194 (Supp.1980).

      . Now Justice Almon of the Alabama Supreme Court.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Sherry CONNER v. STATE.
    6 Div. 579.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    James G. Stevens, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On this appeal from a judgment of conviction and sentence for robbery in the first degree (Code 1975, § 13A-8-41), the only insistence upon a reversal pertains to the sustention of the State’s objection to a question asked by the defendant on cross-examination of the alleged victim of the robbery. As the sufficiency of the evidence to support the verdict is not challenged, and is not reasonably challengeable, in our view, we limit a discussion of the evidence to that part thereof that has material bearing upon the issue presented. It suffices, we think, to adopt the statement of facts as it appears in appellant’s brief as follows:

“On September 7, 1980, Mr. Calvin Lambert was in Kelly Ingram Park in Birmingham, Jefferson County, Alabama, searching for coins with a metal detector. Mr. Lambert had been in the park for several hours when he noticed two black men in his vicinity. Mr. Lambert was on his knee digging for coins when the men came up to him, one on each side, and began talking to him. Mr. Lambert placed his knife on the ground and one of the men who he later identified as the defendant, Sherry Conners [spelled without an “s” in the transcript], reached for the knife but Mr. Lambert grabbed the handle and pulled it back. The other man then asked how the metal detector worked and Lambert started to show them when the unidentified man grabbed Lambert and the knife and pushed him to the ground. Lambert then testified that Conners got his billfold with Eighty-one Dollars ($81.00) in it. The two men then ran, but reappeared a few minutes later and stood around a building in the park in view of Lambert. Mr. Lambert then testified that a boy who was in the park came up to him and said that he knew the two men and that he would get the billfold back for a reward. The boy walked off and when he did not reappear Lambert went to City Hall (a few blocks away) and told the police what happened. He then went back to the park with the officers who talked with the boy. The boy gave the officers an address that was allegedly the home of one of the black men who were involved in the incident. The officers and Mr. Lambert went to the home and Officer Johnson went inside and reappeared with a man that Lambert identified as the one who took his billfold. However, the man he identified, Conners, was wearing different clothes and had his hair ‘slicked back’ with grease on it.”

To appellant’s statement of the facts, it should be added perhaps that the alleged victim and one of the officers were the only witnesses who testified. There was no evidence to the contrary; no testimony was presented on behalf of the defendant.

The portion of the cross-examination of the victim that contains the ruling of the court that appellant contends was error is excerpted in his brief as follows:

“Q: I believe Mr. Mahon [the prosecutor] asked you if you got your eighty-one dollars back.
“A: No, sir, I didn’t.
“Q: If you had gotten your eighty-one dollars back would you be here to testify today?
“MR. MAHON: Objection to that.
“THE COURT: Sustained.
“MR. STEVENS: No, sir, Judge. We have just got a recent case on it, it shows bias.
“MR. MAHON: I object to it.
“THE COURT: Sustained.
“MR. STEVENS: We except.”

Appellant contends that the sustention of the State’s objection to defendant’s question constituted an undue restriction upon the right of a party to cross-examine a witness “concerning his interest, bias or prejudice.” We find no disagreement with the proposition that an unreasonable restriction upon a party’s right to cross-examine a witness should never be countenanced. Code of Alabama 1975, § 12-21 — 137, provides: “The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him. . . . ” Uniformly accepted principles on the subject are succinctly and clearly stated by Justice Merrill in Nichols v. State, 276 Ala. 209, 214, 160 So.2d 619 (1964) as follows:

“It is always permissible to cross-examine a witness to ascertain his interest, bias, prejudice or partiality concerning the matters about which he is testifying. [Authorities omitted] The rule is also stated that, generally, anything which tends to show bias, unfriendliness, enmity, or inclines a witness to swear against a party is admissible. [Authorities omitted].”

Notwithstanding the clarity and acceptance of the governing principles of law, it seems difficult at times to apply them correctly to all incidents as to which it ip claimed by the cross-examiner, either on the trial or on appeal, that he is seeking to show interest, bias, partiality or the like on the part of the witness. Appellant cites some Alabama cases that he says support his position. Ap-pellee cites some it relies upon for an af-firmance. We now consider the Alabama eases relied upon by appellant:

In Nichols v. State, supra, it was held that the trial court committed reversible error in sustaining the State’s objection to the question addressed to a State’s witness, “What is the state of your feelings toward this young man [defendant]?”

In Green v. State, 258 Ala. 471, 64 So.2d 84 (1953), questions asked by the defendant on cross-examination were of two kinds. One kind was as to whether witnesses for the State in a murder case had shown animosity toward, or had had a “falling out” with, the victim of the homicide. The other consisted of questions addressed to a State’s witness in an effort to show that he had made statements to certain persons to the effect that he was going to “shoot the defendant on sight” and “bring him in dead or alive.”

In McMullian v. State, 52 Ala.App. 321, 292 So.2d 127 (1973), rem’d, 292 Ala. 248, 292 So.2d 129, rev’d and rem’d after remand, 52 Ala.App. 324, 292 So.2d 132, the questions were whether the witness “would like to see Fletcher McMuilian [defendant] end up in jail” and whether he “wouldn’t like to see him in the penitentiary.”

In Maples v. State, 44 Ala.App. 491, 214 So.2d 700 (1968), the question was, “What is the state of your feeling toward this defendant?” And in Zeigler v. State, 52 Ala.App. 501, 294 So.2d 468 (1973), it was, “You do have a bias feeling, don’t you?”

In Bridges v. State, Ala.Cr.App., 391 So.2d 1086 (1980), the question asked was with reference to a civil suit filed by the victim against defendant, but there was no contention on the trial that it was asked to show bias of the witness. The judgment of the trial court was affirmed.

In Brooks v. State, Ala.Cr.App., 393 So.2d 484 (1980), rev’d, Ala., 393 So.2d 486, the question was as to whether the victim of the alleged crime had filed a civil suit therefor against defendant.

It is to be readily seen that none of the Alabama cases cited by appellant involves a question or questions similar to the question addressed to the victim of the alleged crime in the instant case. We are of the same opinion as to the questions asked in the cases cited by appellee. This is said without any reflection whatever upon counsel for either party. As we view it, it would be difficult to find any precedent for the question under consideration in the instant case. In our opinion, the trial court was not in error in sustaining the State’s objection to the question. To have overruled the objection would have subjected the witness to an ambiguous and perhaps an unintelligible question. The question does not inform the witness as to the time of the hypothesis “If you had gotten your eighty-one dollars back.” It could have been while the victim and the two robbers were all together. It could have been soon after the victim had promised another person a reward for a return of the money. It could have been after the defendant was apprehended and arrested. If so, the question would contain an insinuation that the victim was guilty of compounding a felony. The hypothetical question was predicated upon a false hypothesis, as the undisputed evidence shows that the victim never “got” his “eighty-one dollars back.” The state of the feeling of the victim toward the defendant could not be shown by what the state of his feeling would have been under circumstances entirely different from those shown by the undisputed evidence.

Our search of the record reveals no error prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Lee Roy McCALLUM v. STATE.
    7 Div. 872.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      R. Bradford Wash, Pell City, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Buying, receiving or concealing stolen property; sentence: ten years’ imprisonment.

I

Appellant contends that he was unconstitutionally deprived of a speedy trial. U.S. Const., amend. VI; 1901 Ala.Const., art. I, § 6. The following timetable sets forth the facts governing this issue:

February 9, 1978 — Appellant was arrested for possessing a stolen pickup truck.

February 17, 1978 — Grand jury returned an indictment against the appellant.

April 19, 1978 — Appellant’s first trial was declared a mistrial.

November 29, 1978 — Appellant’s second trial was declared a mistrial.

March 1979 — Appellant was tried and convicted in St. Clair County on another charge. He gave notice of appeal and was released on bond.

August 1979 — Appellant failed to perfect his appeal and a forfeiture was entered against him.

September 1979 — Appellant failed to appear at trial.

November 1979 — Trial court was advised that appellant was in the custody of a federal marshall.

February 1980-May 1981 — While appellant was incarcerated in the Federal Correctional Institution at Seagoville, Texas, prison officials informed appellant that there was a St. Clair County, Alabama, detainer outstanding against him. Appellant attests that he repeatedly wrote to St. Clair County prosecuting officials requesting to be brought back to Alabama for trial.

May 6, 1981 — Appellant demanded a pre-transfer hearing prior to the temporary transfer of custody to Alabama officials. The request was denied.

May 18, 1981 — Trial court appointed appellant’s attorney.

May 25, 1981 — Appellant filed a motion to dismiss for lack of a speedy trial.

May 27, 1981 — Appellant was tried and convicted of buying, receiving or concealing stolen property.

The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), set out four balancing factors which should be assessed in determining whether a criminal defendant has been denied a speedy trial. The Court ruled that in weighing the conduct of the State and the accused the courts are to consider: (1) the length of the delay, (2) the reason for the delay, (3) the assertion by the defendant of his right, and (4) prejudice to the defendant. Corn v. State, 387 So.2d 275 (Ala.Cr.App.), writ denied, 387 So.2d 280 (Ala.1980); Turner v. State, 378 So.2d 1173 (Ala.Cr.App.), writ denied, 378 So.2d 1182 (Ala.1979).

The length of the delay must be “presumptively prejudicial” in order to trigger an inquiry into the remaining Barker factors. Barker, supra; Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980). The speedy trial right is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of that prosecution. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). A person becomes an “accused” when he is formally indicted or else actually restrained pursuant to arrest. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975).

Thus, it would seem that the “triggering” date in this case would be February 9, 1978, the date of appellant’s arrest. Nonetheless, further analysis is mandated by the unique circumstances which occurred here. The State brought the appellant to trial on April 19, 1978, three months following his arrest and clearly within the realm of constitutional expectations. However, the trial was declared a mistrial. The State retried the appellant on November 29,1978, seven months after the first mistrial, and once again the trial judge declared a mistrial. It is our judgment that November 29, 1978, was the date on which appellant’s speedy trial right attached in this case since it was incumbent on the State from this date forward to provide appellant with another trial. Therefore, the length of the delay from November 29, 1978, until May 27, 1981, was a period of two and one-half years. We believe that this time span may be considered as long enough to be deemed “presumptively prejudicial,” Foster v. State, 45 Ala.App. 323, 229 So.2d 913, cert. denied, 285 Ala. 754, 229 So.2d 915 (1969), and merits our review of the other Barker factors.

No formal hearing was apparently held on the motion to dismiss for lack of a speedy trial filed by the appellant on May 25, 1981. Therefore, the record provides scanty evidence with which to assimilate and weigh the remaining Barker factors. The reasons for the delay rest equally on both sides of the fulcrum. A bench note of the trial judge demonstrates that St. Clair County authorities were aware that appellant was in federal custody as early as November 1979. Alabama then had a constitutional duty to make a “diligent, good-faith effort” to secure the convict imprisoned outside the state for a prompt trial on pending charges. Prince v. Alabama, 507 F.2d 693 (5th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 147, 46 L.Ed.2d 108 (1975). Until just prior to trial, we find nothing in the record to show whether the State ever attempted to locate appellant in the federal penal system and offer to return him to Alabama for trial.

Nevertheless, this court has held that negligence on the part of the State must be weighed less heavily than deliberate prosecutorial delay. Corn, supra. Moreover, appellant contributed to this delay. Following the second mistrial in November 1978, appellant was tried and convicted of another charge in St. Clair County in March 1979. He appealed the case and was released on an appeal bond. A forfeiture was entered against the appellant in August 1979 for failing to perfect the appeal. In September 1979 appellant failed to appear for trial of the instant case. Clearly, one year of the delay was attributable to appellant’s own actions. In addition, it appears that once the State did attempt to bring appellant back to Alabama for trial appellant refused to waive extradition demanding a pretransfer hearing before federal authorities. “Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.” Walker v. State, 386 So.2d 762 (Ala.Cr.App.), writ denied, 386 So.2d 765 (Ala.1980).

Appellant’s motion to dismiss incorporated attached “exhibits” including copies of four letters to the prosecuting attorney of St. Clair County. As we will discuss further in another section of our opinion, these copies bear no indicia of receipt, filing or postmarks to prove that they were ever mailed. We have no way to divine whether these letters were actually mailed by appellant and received by the proper officials. We note that the clerk of the circuit court supposedly wrote appellant that “[t]he cases which you were inquiring about are still pending.” (Emphasis added.) Nonetheless, this response does not specify by what means or when the appellant made inquiries to that office — whether by telephone calls, through an attorney’s investigative attempts, or in fact by the aforementioned letters.

Therefore, we have not been shown positive proof that the appellant ever asserted his speedy trial right prior to the motion to dismiss filed on May 25,1981, only two days prior to his trial and conviction. There is no specific showing in the record that appellant was prejudiced by the delay. Only in the letters he purportedly mailed to the St. Clair County prosecutor does the appellant mention that “the detainer is causing an adverse effect upon my treatment while in federal custody.” No more specific information relating to prejudice suffered by the appellant was provided in the record. Under these circumstances we find that appellant was not unconstitutionally denied a speedy trial.

II

Appellant claims that he was not tried within 180 days after he requested a trial under art. 111(a) of the Interstate Agreement on Detainers and, therefore, this case should have been dismissed. Both Alabama and the United States are parties to the agreement. Ala.Code 1975, § 15-9-81; 18 U.S.C.A.App., page 337 (Supp.1977). However, we find that the 180-day time limitation was never properly activated by the appellant, and he may not now claim to benefit from the agreement.

Article III, §§ (a) and (b), of the Interstate Agreement on Detainers provide:

“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decision of the state parole agency relating to the prisoner.
“(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.” (Emphasis added.)

It is clear from (b) that a prisoner need only-give or send a written request for final disposition of an outstanding detainer “to the warden, commissioner of corrections or other official having custody of him” in order to completely fulfill his sole requirement under the agreement. People v. Daily, 46 Ill.App.3d 195, 4 Ill.Dec. 756, 360 N.E.2d 1131 (1977). This was the only provision with which the prisoner had to comply in order to initiate the statutory machinery. A prisoner seeking to benefit from the statutory provisions must first meet the burden of compliance with the agreement. Williams v. State of Maryland, 445 F.Supp. 1216 (D.Md.1978). The record here provides no proof that appellant gave such a written request to the proper federal prison official at Seagoville, Texas.

When a prisoner chooses to bypass the simple procedure provided in art. 111(b), and attempts to deal directly with officials in the receiving state, he must satisfy the additional requirements of the agreement which would normally be executed by officials in the sending state. State v. Grizzell, 584 S.W.2d 678 (Tenn.Cr.App.), cert. denied, (Tenn.1979). Copies of four letters directed to the “Prosecuting Attorney and/or Clerk of the Court” of St. Clair County were attached to appellant’s motion to dismiss. However, since it appears that these letters were not sent by “registered or certified mail, return receipt requested” as provided by art. 111(b), it is impossible to discern whether these “requests” under the agreement were actually received and notice thereby given to Alabama authorities. This same omission by a prisoner proved fatal in Grizzell, supra, at 682, where the Tennessee court wrote that “the requirement that written notice of the inmate’s request for final disposition be sent by registered or certified mail is more than a mere technicality.” Moreover, there is no indication that appellant had the certificate of inmate status drawn by the proper prison official sent to St. Clair County. This omission alone proved fatal to the prisoner in Isaacs v. State, 31 Md.App. 604, 358 A.2d 273 (1976), which held that the required certificate is “mandatory and not directory.”

While the remedial nature of the agreement mandates that it should be construed liberally in favor of those it was intended to benefit, Grizzell, supra, this does not mean that “courts are free to bend the legislation out of shape or to remold it to some other form.” Isaacs, supra, 358 A.2d at 278. It has generally been held that strict compliance with the agreement is not required, but rather “a good faith, diligent effort by a prisoner to invoke the statute” by giving “written notice to the official having custody of him.” People v. Daily, supra, 4 Ill.Dec. at 762, 360 N.E.2d at 1137 (1977). However, once an inmate bypasses the statutory procedure, the burden is on the prisoner to demonstrate strict compliance with the notification and certificate requirements of Sections (a) and (b) of art. III. Whitley v. State, 392 So.2d 1220 (Ala.Cr.App.1980), writ denied, 392 So.2d 1225 (Ala.1981). The 180-day time limitation of the agreement is triggered only when a prisoner has fully complied with the agreement. Isaacs, supra; Daily, supra; and Grizzell, supra. Since appellant failed to properly notify Alabama officials and have the certificate of inmate status sent to them, he did not comply with the agreement and the 180-day period was never activated. Therefore, this claim is without merit.

Ill

Appellant also complains that he was erroneously denied a pretransfer hearing pursuant to art. IV(d) of the Interstate Agreement on Detainers. In Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), the United States Supreme Court recently held that a prisoner involuntarily transferred under art. IV should be entitled to “whatever ‘safeguards of the extradition process’ he might otherwise have enjoyed.” The Court explained that “[tjhose safeguards include the procedural protections of the Extradition Act (in those States that have adopted it), as well as any other procedural protections the sending State guarantees persons being extradited from within its borders.” Here, appellant was incarcerated at a federal correctional institution when Alabama requested custody under art. IV(a); thus, the “sending state” was the federal government. Since the United States has not adopted the Uniform Criminal Extradition Act and does not statutorily provide a federal prisoner with any procedural protections when being transferred to state custody, 18 U.S.C. § 4085, we find that appellant was not entitled to a pretransfer hearing in the instant case.

No question of extradition is involved where a prisoner in the custody of the federal government is turned over to a state for prosecution. Thomas v. Levi, 422 F.Supp. 1027 (E.D.Pa.1976). “This historical objective of extradition — to prevent the territorial boundaries of a state’s sovereignty from frustrating its efforts to bring to justice those who violate its laws — obviously has no application to the dual or ‘vertical’ territorial sovereignty which characterizes the federal-state relationship.” Thomas v. Levi, supra, at 1033. Prior to the United States’ adoption of the Interstate Agreement on Detainers, the federal government could waive its immunity from state process and consent to have prisoners in its custody turned over to a state, Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607 (1922), but only now is the United States compelled to do so. Since appellant enjoyed no preexisting procedural protections under federal law to challenge his transfer to Alabama, either statutory or constitutional, he had no right to a pretransfer hearing.

AFFIRMED.

All the Judges concur.


author:
DeCARLO, Judge.
      BOOKOUT, Judge,

text:
    Steven Douglas JONES v. STATE.
    8 Div. 551.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      Rodney B. Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant was charged in a three-count indictment with burglary, theft of property, and receiving stolen property belonging to one Durrell Mock. After a jury trial, appellant was found guilty of receiving stolen property in the second degree and sentenced to three years.

In a companion case which was consolidated for trial, appellant was indicted for burglary, theft of property, and receiving stolen property belonging to one Carl Stols-worth. The jury determined that appellant was guilty of receiving stolen property in the third degree and the trial judge sentenced him to six months, to be served concurrently with the sentence in the companion case.

The State’s evidence proved that Mr. Durrell Mock and Mr. Carl Stolsworth, who owned neighboring vacation camps at Waterloo, Alabama, had burglaries of their premises in January, 1981. Mr. Mock testified that a number of items, including tools and fishing gear, had been taken from his camp. He stated that after the break-in he made a list of the items that had been stolen and gave the list to Investigator Charles Perkins of the Lauderdale County Sheriff’s office. Shortly thereafter, he identified certain property recovered by the Sheriff’s Department as items which were missing after the January burglary. He identified State’s Exhibit 2 as a photograph of the property he claimed, and estimated that the value of the recovered property was approximately $195.

Mr. Carl Stolsworth testified that following the burglary at his camp he was called by the Sheriff’s Department and asked if he could identify certain property they had recovered. He recognized State’s Exhibit 1 as a photograph of a radio and vacuum cleaner stolen from him in January, 1981. He judged that the value of the recovered property was about $65.

Deputy Sheriff James Richardson testified that he was on patrol at 1:59 A.M. on January 26, 1981, when he began to pursue a vehicle. As Richardson began following the car, the driver increased his speed, ran a stop sign, and pulled into a private driveway. The driver switched off the ignition, turned off the lights and jumped from the vehicle. Deputy Richardson called to the driver to halt, but he ran away. As Richardson approached the car he saw appellant on the passenger side with a rifle between his legs. The deputy testified that, in his opinion, appellant was intoxicated. He stated that he arrested appellant for public intoxication, impounded the vehicle, and arranged for it to be towed to the Sheriff’s Department. Richardson ran a check of the vehicle and determined that it was registered to the appellant.

Investigator Charles Perkins stated that when appellant’s vehicle was brought to the Lauderdale Sheriff’s Department, he looked through the car windows and noticed several items matching the description of property reported stolen from Mr. Durrell Mock. He identified State’s Exhibits 1 and 2 as photographs of the property found in appellant’s automobile.

At the conclusion of the State’s case appellant moved to exclude the evidence on the basis that the State had not presented a prima facie case. He also renewed his earlier motion to suppress the evidence found in appellant’s vehicle as the product of an illegal search. Both motions were denied and the defense rested.

I

Appellant contends that his motion to suppress should have been granted because the warrantless search of his vehicle was unlawful.

We hold that the search was permissible under either the probable cause plus exigent circumstances exception to the warrant requirement, see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Minnifield v. State, Ala.Cr.App., 390 So.2d 1146, cert. denied, Ala., 390 So.2d 1154 (1980), or by virtue of the inventory after impoundment search exception to the warrant requirements, see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Wilkinson v. State, Ala.Cr.App., 374 So.2d 396, cert. denied, Ala., 374 So.2d 400 (1979).

Under the first exception to the warrant requirement noted above, probable cause exists whenever all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed. Hatton v. State, Ala.Cr.App., 359 So.2d 822, cert. quashed, Ala., 359 So.2d 832 (1977). There is no litmus paper test for determining whether probable cause for a warrantless search exists; each case must be determined on its own facts. Hatton v. State, supra.

The “probabilities” implied by the term “probable cause” are not technical; they are the factual and practical consideration of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

In the case before us, the cumulative effect of the following factors would have provided probable cause for Deputy Richardson to have conducted an immediate search of the vehicle:

(1) As Richardson started to follow the car it sped up and ran a stop sign in order to elude the deputy;
(2) The driver tried to hide in a private drive by turning off the motor and the headlights at 2:00 A.M.;
(3) The driver jumped from the car, ran away, and refused to halt on Richardson’s instructions;
(4) The appellant had a rifle hidden between his legs.

Exigent circumstances are present whenever the object to be searched is mobile such as an automobile. Reid v. State, Ala., 388 So.2d 208 (1979); Spencer v. Town of Gordo, Ala.Cr.App., 389 So.2d 182 (1980).

Although the vehicle was not searched when it was stopped by Deputy Richardson, but was impounded, it is our judgment that a search at that time would have been justified because probable cause coupled with exigent circumstances was present.

Once the driver of the vehicle escaped and it became apparent to Deputy Richardson that appellant was intoxicated and in no condition to drive, the reasonable course was to impound the vehicle. Im-poundment is proper if it is pursuant to routine police practice, is reasonable under the circumstances, or there is no reasonable alternative, see Annot., 48 A.L.R.3d 537 (1973); Rivera v. State, 373 So.2d 64 (Fla.App.1979). Here, the deputy would not have been justified in leaving the automobile in the control of an incoherent passenger-owner, see Re One 1965 Econoline, 109 Ariz. 433, 511 P.2d 168 (1979), and his alternative would have been to allow the vehicle to block a private driveway and, perhaps, be driven off later by an escaped driver. Under the circumstances, it is our judgment that impounding and towing the car to the Sheriff’s Department was reasonable and proper. The later inventory of its contents was also constitutionally permissible. See South Dakota v. Opperman, supra; Wilkinson v. State, supra. Appellant’s motion to suppress was, therefore, correctly overruled.

II

Appellant claims the trial court erred when it did not grant his request to conduct a hearing on the motion to suppress outside the presence of the jury.

Generally, it is reversible error to deny a defendant a hearing, outside the presence of the jury, on his motion to suppress evidence, Davis v. State, Ala.Cr.App., 368 So.2d 880, cert. denied, Ala., 368 So.2d 882 (1979). However, the reason for the rule requiring a voir dire hearing is so that the jury will not be prejudiced by hearing evidence that is subsequently ruled inadmissible. See Allen v. State, Ala.Cr.App., 376 So.2d 826 (1979). While we do not condone the failure to allow testimony on a motion to suppress to be taken outside the jury’s presence, our holding that the fruits of the search were properly admissible against the appellant renders the error harmless. See A.R.A.P. 45.

III

Appellant maintains that his motion to exclude the evidence should have been granted because the State did not prove he knew the goods were stolen.

In our judgment, the evidence was sufficient to establish appellant’s guilty knowledge. Appellant was the owner-passenger of the vehicle in which the recently stolen goods were found. Under these circumstances, appellant’s scienter could be inferred as a matter of fact, Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978), and the jury had evidence before it which authorized its verdict. See Stamps v. State, Ala.Cr.App., 380 So.2d 406 (1980).

We have searched the record and have found no error prejudicial to the appellant; the judgments of conviction of the Lauder-dale Circuit Court are therefore affirmed.

AFFIRMED.

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

BOOKOUT, J., concurring specially.

BOOKOUT, Judge,

concurring specially:

I concur in that portion of the opinion holding that the inventory search was legal. However, I do not agree that probable cause coexistent with exigent circumstances also validated the warrantless search. Exigent circumstances ceased to exist when the automobile was impounded.


author: PER CURIAM.

text:
    Ex parte: State of Alabama ex rel. Charles A. Graddick, Attorney General for the State of Alabama. (In re: STATE of Alabama v. Harold PUGH.)
    6 Div. 448.
    Alabama Court of Criminal Appeals.
    Nov. 19, 1980.
    Rehearings Denied Dec. 2, 1980.
   PER CURIAM.

WRIT GRANTED. ORDER ISSUED COMMANDING JUDGE NICE TO RESCIND AND HOLD FOR NOUGHT HIS ORDER OF 9-12-80 GRANTING MOTION FOR NEW TRIAL IN SAID CASE. NO OPINION.

Judgment affirmed, Ala., 407 So.2d 874.

All the Judges concur.


author: MADDOX, Justice. JONES, Justice SHORES, Justice

text:
    Ex parte: Charles M. NICE. (Re: Ex parte: State of Alabama ex rel. Charles A. Graddick, Attorney General for the State of Alabama.) (In re: STATE of Alabama v. Harold PUGH.) Ex parte: Harold PUGH. (Re: Ex parte: State of Alabama ex rel. Charles A. Graddick, Attorney General for the State of Alabama.) (In re: STATE of Alabama v. Harold PUGH.)
    80-186, 80-187.
    Supreme Court of Alabama.
    July 17, 1981.

      David Cromwell Johnson and Ronda H. Lacey, Birmingham, for petitioner.
    Charles A Graddick, Atty. Gen., Douglas A. Valeska, Deputy Dist. Atty., Birmingham, for the State.
   ON REHEARING

MADDOX, Justice.

The application for rehearing by the State of Alabama is granted; the original opinions in these cases are withdrawn and the following opinion is substituted therefor:

Harold Pugh was found guilty of robbery by a jury in Jefferson County and was duly sentenced by the trial judge. Pugh timely filed a motion for a new trial, and the trial judge granted his motion.

The transcript of the proceedings held before the trial judge on Pugh’s motion for a new trial contains the following statement by the trial judge of his reasons for granting Pugh’s motion for a new trial:

It was based largely on the fact that the Court’s strong feelings that the testimony which convicted this defendant, largely the testimony of Ben Fowkes (sic), was dubious in my mind; it was not of sufficient weight, and especially the fact that he did not name the individual that night that he was robbed, that he could still talk. Had he mentioned him that night, it might have been an entirely different thing; but, there was some two weeks later before he actually gave the fellow’s full name.
And that is the real basis. And I just have strong doubts about that case.
* * * * * *
... I feel it is the Court’s responsibility, when it feels that an injustice has probably been done, as may have been done here, that it is the Court’s responsibility to set aside a verdict. And this is probably the first time I have ever done it, but I felt so strongly about this case, and considered it for weeks and weeks before this hearing. And I felt that for the ends of justice [to] be met, that a new trial should be given.

The State filed a petition for mandamus in the Court of Criminal Appeals, and asked that court to reverse the judgment of the trial court which granted Pugh’s motion for a new trial. The Court of Criminal Appeals, with all judges concurring, issued a peremptory writ of mandamus to the trial judge, who, in response to the mandate from the Court of Criminal Appeals, rescinded and held for naught his order granting Pugh’s motion for a new trial.

Pugh timely filed a petition for certiorari in this Court, and on February 3, 1981, this Court granted his petition and entered the following order:

PER CURIAM.
Writ Granted. In the interest of expediting a decision in this cause, the provisions of Rule 39(h) and (i), are hereby suspended under the provisions of Rule 2(b), and the cause is ordered submitted when the Court of Criminal Appeals forwards to this Court the record, one copy of the briefs, and appendices, if any, in this cause. No further briefs will be required, nor will oral argument be permitted.

WRIT GRANTED.

All the Justices concur.

On February 18,1981, this Court reversed and remanded the cause and issued the following opinion:

PER CURIAM.

Upon consideration of the Petition, brief of petitioner, and the State’s brief in opposition thereto, the judgment of the Court of Criminal Appeals granting the State of Alabama’s petition for mandamus is reversed and this cause is remanded for an order consistent herewith. Mandamus will not lie to compel the trial court’s exercise of discretion in a particular manner, nor to review the lower court’s proceedings for error, nor as a substitute for appeal. State v. Cannon, 369 So.2d 32 (Ala.1978).

REVERSED AND REMANDED.

All the Justices concur.

The State petitioned for rehearing and has urged that our original decision was incorrect.

The State’s petition for mandamus in the Court of Criminal Appeals presented the novel question whether a circuit judge has the power to order a new trial, after a jury has returned a verdict of guilty, on the ground “that the testimony which convicted this defendant, largely the testimony of Ben Fowkes (sic), was dubious in my mind. . . . ”

After a more thorough examination of the facts on rehearing, we conclude that the judgment of the Court of Criminal Appeals is due to be affirmed, for the following reasons:

(1) The Court of Criminal Appeals has authority to issue such remedial and original writs as are necessary to give it a general superintendence and control of the circuit courts in criminal matters, over which it has exclusive appellate jurisdiction.

(2) Mandamus is an extraordinary remedy, but is appropriate in exceptional circumstances which amount to judicial usurpation of power.

(3) Mandamus cannot be used as a substitute for an appeal, when no appeal is authorized by law or court rule, but mandamus can be used to prevent a gross disruption in the administration of criminal justice.

(4) Casual resort to mandamus cannot be permitted to undermine an accused’s right against double jeopardy, and only the rarest of circumstances merit an intervention in a criminal case by mandamus; nevertheless, circumstances can arise which present a compelling need for the issuance of mandamus to further important countervailing public interests.

The modern trend in criminal procedure is to permit prosecution appeals from certain adverse rulings made pre-trial and post-verdict, and the absence of a right of appeal militates in favor of exercising supervisory mandamus.

I

The Court of Criminal Appeals had power to issue supervisory mandamus. Amendment No. 328, Section 6.03, Constitution of Alabama, 1901, provides, in part:

le) The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.
(d) The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction; .. .

The Court of Criminal Appeals, by constitutional grant, has jurisdiction not only to issue all writs necessary or appropriate in aid of its appellate jurisdiction, but also has authority to issue such remedial and original writs as are necessary to give it a general superintendence and control of jurisdictions inferior to it in criminal matters. The power of the Court of Criminal Appeals to exercise this broad grant of supervisory power, especially that specifically granted to it in Section 6.03(d), is not dependent upon a right of appeal, whether granted by statute or court rule.

Admittedly, the authorization of an appeal by the State, whether by statute or court rule, would be the best procedure, but the absence of the right of an appeal by the State cannot restrict the right of the Court of Criminal Appeals to exercise its superintendence and control over inferior jurisdictions in criminal matters. Neither could the absence of a right to appeal restrict the right of this Court to supervise any exercise by the Court of Criminal Appeals of its jurisdiction, as we do in this case. Ex parte Louisville & Nashville R. R. Co., 176 Ala. 631, 58 So. 315 (1912).

Having determined that the Court of Criminal Appeals had authority to issue the writ of mandamus, the next question is whether it appropriately exercised that power.

II

Mandamus is an extraordinary remedy, but is appropriate in exceptional circumstances which amount to judicial usurpation of power. Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967).

In Alabama, it is fairly well settled that notwithstanding the fact that the State has a restricted right in criminal cases to prosecute an appeal, the actions of a trial judge as to certain rulings in criminal cases may be reviewed by mandamus proceedings under appropriate circumstances. In Ex parte State ex rel. Lawson, 237 Ala. 591, 188 So. 242 (1939), this Court stated:

Notwithstanding the restricted right of the State in criminal cases to prosecute an appeal (sections 3238, 3239, Code of 1928), occasions have arisen in which the action of the trial judge as to certain rulings in criminal cases have been reviewed by mandamus proceedings. Ex parte State ex rel. Attorney General, 142 Ala. 87, 38 So. 835, 110 Am.St.Rep. 20; Ex parte State ex rel., 115 Ala. 123, 22 So. 115; State ex rel. Attorney General v. Brewer, 19 Ala.App. 330, 97 So. 777; Ex parte Brewer, 210 Ala. 229, 97 So. 778.

The critical question is whether this was an appropriate circumstance for the issuance of the writ by the Court of Criminal Appeals. The writ could not issue “in aid of appellate jurisdiction” of the Court of Criminal Appeals because a state cannot presently appeal from an order granting a new trial in a criminal case, and as already pointed out, the use of supervisory writs to superintend trial courts has strictly limited application. For example, simply because an order may have been erroneous does not mean that an inferior court lacked the power to enter it. Cf. Will v. United States, 389 U.S. 90, 98, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). “Only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of this extraordinary remedy.” Will, supra.

Were exceptional circumstances present here? We conclude that extraordinary circumstances did exist, and even though the Court of Criminal Appeals wrote no opinion setting forth its reasons for granting the writ, we find that the record filed with the Court of Criminal Appeals by the State with its petition demonstrates that the court had a sufficient basis upon which to ground the relief it granted. This case is not substantially unlike a case in the federal system styled United States v. Cravero, 530 F.2d 666 (5th Cir. 1976), which involved the role of the trial judge in ruling on a post-verdict motion and the role of the jury when the credibility of a government witness is involved. In Crave-ro, the Court opined:

One of the oldest established rules of Anglo-American jurisprudence is that the jury is the arbiter of credibility of witnesses. As the Supreme Court stated in Hoffa v. United States, 385 U.S. 293, 311, 87 S.Ct. 408, 418, 17 L.Ed.2d 374, 387 (1966),
The established safeguards of an Anglo-American legal system leave the veracity of a witness to be detected by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.
The trial judge cannot arrogate to himself this power of the jury simply because he finds a witness unbelievable. See, United States v. Weinstein, supra [452 F.2d 704], at 713 [2d Cir. 1971]. Under our system of jurisprudence a properly instructed jury of citizens decides whether witnesses are credible. The trial judge is deemed to have no special expertise in determining who speaks the truth. Glasser v. United States, supra [315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680]; United States v. Parr, 516 F.2d 458, 464 (5th Cir. 1975); United States v. Davis, 487 F.2d 112, 126 (5th Cir. 1973); Williamson v. United States, 365 F.2d 12 (5th Cir. 1965); Puentes v. United States, 319 F.2d 581 (5th Cir. 1963).

Cravero was a direct appeal by the government, not a request for mandamus, but we conclude that the method of review is unimportant, if there was before the Court of Criminal Appeals a sufficient showing that the trial judge was guilty of a “usurpation of power,” as those terms are used in determining the propriety of a grant of mandamus. We conclude that the Court of Criminal Appeals could have found that the trial judge granted Pugh’s motion for a new trial on the ground that the testimony of the victim of the robbery was “dubious.”

In determining motions concerning the sufficiency of the evidence, a trial court should take the evidence in the light most favorable to the State and should not substitute its judgment for that of the jury in determining credibility of the witnesses and the weight to be given the evidence. Smith v. State, 23 Ala.App. 488,128 So. 358 (1930). The rule in federal cases seems to be the same. In United States v. Palacios, 612 F.2d 972 (5th Cir. 1980), the Court outlined the federal rules concerning the determination of the sufficiency of the evidence as it relates to the credibility of witnesses. The Court stated in Palacios that

[t]he jury is the arbiter of the credibility of witnesses, and that for “testimony to be considered incredible (as a matter of law) it must be unbelievable on its face,” i.e., testimony as to “facts that (the witness) physically could not have possibly observed or events that could not have occurred under the laws of nature.

See also, United States v. Cravero, 530 F.2d 666 (5th Cir. 1976), United States v. Burns, 597 F.2d 939 (5th Cir. 1979).

Ill

Mandamus cannot be used as a substitute for appeal, when no appeal is authorized by law or court rule, but mandamus can be used to prevent a gross disruption in the administration of criminal justice. This principle of law is sound and is due to be followed, but equally sound is the principle that mandamus can be used by the government in aid of its lawful rights in the prosecution of criminal cases. In United States v. Dooling, 406 F.2d 192 (2d Cir. 1969), the Court, in granting mandamus, opined:

We will not pause to determine whether, if Judge Dooling entered his proposed order, the government would be able to appeal his determination under 18 U.S.C. § 3731 (1964). Even if it were clear that the government could not appeal the government’s argument for mandamus would not be made more compelling, for mandamus may not do service for an appeal which has been barred by the Congress. Will v. United States, 389 U.S. 90, 97, 88 S.Ct. 269 [274], 19 L.Ed.2d 305 (1967). We think it equally true that the fact that the government may have no right of appeal does not act as a conclusive bar to the issuance of mandamus in its favor. Certainly the restrictions placed upon the government’s right to appeal do reflect important policy judgments by Congress, at their core protecting the right against double jeopardy, which must not be undermined by casual resort to mandamus. But circumstances can arise which present a compelling need for the issuance of mandamus in order to further important countervailing interests. Here we find this need in our responsibility for preventing gross disruption in the administration of criminal justice, and we act pursuant to our supervisory power over the district courts. Cf. United States v. Bryan, 393 F.2d 90 (2d Cir. 1968). The Supreme Court, in affirming the issuance of a writ of mandamus by the Court of Appeals for the Seventh Circuit, expressed in the clearest terms its support for the power we now exercise:
We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. La Buy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S.Ct. 309, 315, 1 L.Ed.2d 290 (1957).

IV

Casual resort to mandamus cannot be permitted to undermine an accused’s right against double jeopardy, and only the rarest of circumstances merit an intervention in a criminal case by mandamus; nevertheless, circumstances can arise which present a compelling need for the issuance of mandamus to further important countervailing public interests. United States v. Dooling, supra, In re United States, 565 F.2d 173 (1st Cir. 1977).

V

The modern trend in criminal procedure is to permit prosecution appeals from certain adverse rulings made pre-trial and post-verdict, and the absence of a right of appeal militates in favor of exercising supervisory mandamus.

Unquestionably, the trend in criminal procedure is to permit prosecution appeals, both before trial and after the factfinding process of the trial is concluded. ABA Standards of Criminal Justice, 21-1.4, and Commentary. Rule 15 of the Proposed Alabama Rules of Criminal Procedure provides for limited prosecution appeals. The primary constraint on the power of the prosecution to appeal stems from the double jeopardy clause of the United States Constitution and similar clauses in state constitutions.

Alabama has not yet adopted a procedure for prosecution appeals, except in very limited circumstances, but this failure does not militate against exercising supervisory mandamus. To the contrary, the absence of a right of appeal “militates in favor of exercising supervisory mandamus.” In Re United States, 565 F.2d 173 (1st Cir. 1977). The absence of a right of appeal here could be especially harmful to the State because the trial judge did not grant the new trial because he found that the State had failed to produce sufficient evidence to prove guilt, rather because he himself thought the victim’s testimony was “dubious.” The ruling of the trial judge, even if conscientiously made, was in excess of his judicial power. If the State could not obtain appellate review of this ruling, which the Court of Criminal Appeals has inferentially determined was beyond the power of the trial judge to make, the defendant could not be retried. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). In Hudson, the trial judge granted Hudson’s motion for a new trial, stating: “I heard the same evidence the jury did[;] I’m convinced that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict of the homicide committed by this defendant of this particular victim.” 101 S.Ct. at p. 971. In Hudson, after a hearing on Hudson’s motion, the trial judge stated: “[Tjhere was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict”; and he commented, “[Hjow they concluded that this defendant committed the act from that evidence when no weapon was produced, no proof of anyone who saw a blow struck, is beyond the Court’s comprehension.” 101 S.Ct. at p. 972.

It is interesting to . note that in Hudson, the Louisiana Supreme Court refused to exercise its supervisory power to grant the State’s request to review the trial judge’s ruling in that case but held that “[tjhe trial court’s grant of a new trial has not been shown to have been an abuse of discretion.” Louisiana v. Hudson, 344 So.2d 1 (La.1977). Hudson was retried and was again convicted; he then sought a writ of habeas corpus in a Louisiana state court, contending that the double jeopardy clause barred the State from trying him the second time. Hudson relied on the decision of the Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The trial court denied Hudson’s writ and the Louisiana Supreme Court affirmed. The Supreme Court of the United States reversed, and in an opinion by Mr. Justice Powell, opined:

We considered in Burks the question “whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.” 437 U.S. at 2, 98 S.Ct., at 2142. We held that a reversal “due to a failure of proof at trial,” where the State received a “fair opportunity to offer whatever proof it could assemble,” bars retrial on the same charge. Id., at 16, 98 S.Ct., at 2149. We also held that it makes “no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient.” Id., at 11, 98 S.Ct., at 2147 (emphasis in original), or that “a defendant has sought a new trial as one of his remedies, or even as the sole remedy.” Id., at 17, 98 S.Ct., at 2150.
Our decision in Burks controls this case, for it is clear that petitioner moved for a new trial on the ground that the evidence was legally insufficient to support the verdict and that the trial judge granted petitioner’s motion on that ground. In the hearing on the motion, petitioner’s counsel argued to the trial judge that “the verdict of the jury is contrary to the law and the evidence.” After reviewing the evidence put to the jurors, the trial judge agreed with petitioner “that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict”; and he commented, “[H]ow they concluded that this defendant committed the act from that evidence when no weapon was produced, no proof of anyone who saw a blow struck, is beyond the Court’s comprehension.” The Louisiana Supreme Court recognized that the trial judge granted the new trial on the ground that the evidence was legally insufficient. The Supreme Court described the trial judge’s decision in these words: “[T]he trial judge herein ordered a new trial pursuant to LSA-C.Cr.P. art. 851(1) solely for lack of sufficient evidence to sustain the jury’s verdict . .. . ” [State v. Hudson], 373 So.2d [1294] at 1298 [La. 1979]. (emphasis in original). This is precisely the circumstance in which Burks precludes retrials. 437 U.S., at 18, 98 S.Ct., at 2150. See Greene v. Massey, 437 U.S. 19, 24r-26, 98 S.Ct., 2151, 2154-55, 57 L.Ed.2d 15 (1978); id., at 27, 98 S.Ct., at 2155 (POWELL, J., concurring). Nothing in Burks suggests, as the Louisiana Supreme Court seemed to believe, that double jeopardy protections are violated only when the prosecution has adduced no evidence at all of the crime or an element thereof.
The State contends that Burks does not control this case. As the State reads the record, the trial judge granted a new trial only because he entertained personal doubts about the verdict. According to the State, the trial judge decided that he, as a “13th juror,” would not have found petitioner guilty and he therefore granted a new trial even though the evidence was not insufficient as a matter of law to support the verdict. The State therefore reasons that Burks does not preclude a new trial in such a case, for the new trial was not granted “due to a failure of proof at trial.” 437 U.S., at 16, 98 S.Ct., at 2149.
This is not such a case, as the opinion of the Louisiana Supreme Court and the statements of the trial judge make clear. The trial judge granted the new trial because the State had failed to prove its case as a matter of law, not merely because he, as a “13th juror,” would have decided it differently from the other 12 jurors. Accordingly, there are no significant facts which distinguish this case from Burks, and the Double Jeopardy Clause barred the State from prosecuting petitioner a second time.

101 S.Ct. 972, 973 (1981).

We are aware that the Supreme Court, in Hudson, has noted that the adoption of the “13th juror” rule is a “question of state law”; but we refuse to adopt the “13th juror” rule because as we have already stated, the jury is the arbiter of the credibility of witnesses in Alabama; therefore, the grant of supervisory mandamus by the Court of Criminal Appeals to prevent the trial judge from sitting as a “13th juror” was appropriate, and the grant of supervisory mandamus by the Court of Criminal Appeals does not require the defendant to stand retrial. In short, no double jeopardy problems are presented such as were presented in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), and Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). In fact, without mandamus, the legitimate interests of the State in having a valid jury verdict stand would be completely frustrated, and the State would be faced squarely with the plea of double jeopardy if it sought to retry Pugh.

VI

Our holding that mandamus is appropriate in this case is not an invitation to the State to invoke supervisory writs to seek review of lower court rulings which are adverse. We state again that only the rarest of circumstances merit intervention by mandamus. The provision for prosecution of appeals within our constitutional framework should come through legislative enactment or court rule, but sound judicial administration of the criminal laws should not await such action in appropriate cases where supervisory writs are indicated.

We also point out that circumstances involving alleged errors of judgment, or errors in the exercise of judicial discretion, would not constitute grounds for invoking supervisory mandamus. For example, in Cannon v. State, 369 So.2d 32 (Ala.1979) (Maddox, Justice, dissenting, with whom Embry, J., concurred), the Court held that mandamus was inappropriate to review a ruling by a trial judge who had dismissed an indictment because he found that numerous prosecution and defense exhibits had been destroyed, and because of that fact the defendant could not receive a fair trial. Cannon is, therefore, distinguishable from this case because here the Court of Criminal Appeals has found an abuse in discretion.

Based on the foregoing, the application for rehearing is granted, the original judgment of this Court is set aside and held for naught and the judgment of the Court of Criminal Appeals is affirmed.

APPLICATION FOR REHEARING GRANTED; AFFIRMED.

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

JONES, SHORES, EMBRY and BEAT-TY, JJ., dissent.

JONES, Justice

(dissenting):

I have thought long and searchingly upon what I here say in dissent lest I appear overly alarmed. While I hope this reflection results in a measure of self-imposed restraint, nevertheless, I am constrained to speak forcibly and forthrightly against the majority opinion, which I believe constitutes a most serious and dangerous erosion of our judicial system.

By a bare majority, whether wittingly or unwittingly, this Court has abolished the distinction between review by extraordinary writs of mandamus and by appeals. The restricted office of mandamus, until today, was well defined and well understood; and its uniform application placed it within the narrow confines of other extraordinary appellate remedies. Indeed, so well known is its limited function — to compel public officials to perform ministerial and mandatory duties and prohibit them from acting beyond and outside their authority — that the practicing Bar rarely encounters any confusion in distinguishing the ■ application of its mode of review from that of straight appeals. For a good statement of this distinction, see City of Decatur v. Mohns, 235 Ala. 640, 180 So. 297 (1938).

Review by extraordinary writs is of common law origin. Our inclusion of these remedies in ARAP 21 is a mere codification of their common law evolvement. The right of appeal exists only by virtue of statute or by Supreme Court rule. Code 1975, § 12-22-91 (permitting the State to appeal from an order declaring a statute unconstitutional), is the only statutory authorization for review by appeal in favor of the State in a criminal prosecution. Currently, no rule of this Court expands this right.

My concern is not one of technical niceties. The judicial system constitutes one of the three separate and equal branches of our constitutional government. The courts of our land stand as the ultimate bulwark against tyranny, serving as the watchtower of liberty by insuring that the rule of law is equally and fairly administered. The foundation of such a watchtower cannot be shifting sand. Instead, its structure of hon- or and integrity must be grounded on solid and proven concepts lest its beacon lose both its brilliance and its focus. The fundamental concept of our judicial system — requisite to its stability and endurance — is its underpinning of fixed principles — procedural and substantive, well defined and commonly understood — to govern the decision-making process. Adherence to rules, not for their own sake but for the sake of the principles reflected thereby, is the essence of a government of laws and not of men. This is our legal heritage; and to abandon its basic precepts is to engage in unwarranted experimentation at grave risk of undermining our time-tested judicial institutions.

This is not a plea for unaltered rules of law. Inherent in the system is both the power and the mode for change. Stability can hardly be defended as an end in itself. Stare decisis is a golden rule, not an iron rule. Indeed, the common law — likened unto a running stream and not a dead sea— is itself an evolving process, everchanging to comport with experience and to meet contemporary societal standards and needs.

But it is one thing to change the rule and then proceed in accordance with its newly pronounced principle, and quite another thing to leave the rule unchanged and simply ignore its operative effect for the sake of a perceived desirable result. Even if we assume abstract justice in a given case, such perversion of the traditional process lends itself ultimately to neither justice nor stability of the law and its application. Instead, it leads inexorably to an ad hoc type of decision making by committee rather than by an orderly judicial process. To paraphrase Justice Jackson, equal justice under law presupposes some law.

That such a perversion has occurred here is not fairly debatable. The State has no right of appeal. The trial judge acted within his authority to entertain the Defendant’s motion for a new trial. If he has the right to entertain it, then surely one of his options, within the exercise of his judicial discretion, is to grant the motion if any ground therefor is valid. To be sure, if in his considered judgment any ground is valid, he is duty bound to grant the motion. While mandamus will lie to compel the exercise of his discretion, it is not the office of the writ to compel the manner in which it is exercised. The trial judge can be forced to rule, one way or the other; but he cannot be told which way to rule. East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969). The one narrow exception is where the trial court’s course of action is mandated by law (e.g., in certain cases involving jurisdiction and venue, or where the relief sought involves purely ministerial or mandatory duty.)

In dealing with this exception, some of the cases resort to the phrase “unless he abuses his discretion.” Strictly speaking, this phrase should read, “unless the trial judge attempts to exercise discretion when no discretion is permitted under the law.” I have found no Alabama case, and the majority opinion cites none, that applies the abuse of discretion exception to grant a writ of mandamus where the trial judge had the right to exercise his judicial discretion. See State Board of Administration v. Roquemore, 218 Ala. 120, 117 So. 757 (1928). This should not be surprising, for a literal interpretation of the phrase “unless he abuses his discretion” would effectively destroy the essential substantive distinction between the right of review by appeal and by petition for writ of mandamus. Denson v. First National Bank of Birmingham, 276 Ala. 146, 159 So.2d 849 (1964).

To review by mandamus the propriety of the trial court’s order granting defendant’s motion for a new trial by evaluating its merits is the identical standard for review by appeal. Once the need for the right of appeal is thus eliminated, the elements that constitute mandamus as an extraordinary writ are lost and the two methods of review equate; and, thus, we have usurped by case law the statutory and rule-making prerogative to establish the right of review by appeal.

One final observation: I personally initiated an addition to the proposed Rules of Criminal Procedure to provide the State the right of appeal from an order granting the defendant a new trial. The Rules as proposed by the Special Committee limited the State’s right of appeal to certain adverse pretrial rulings. The ABA Standards of Criminal Justice are not so limited. Indeed, I would have no objection to adopting a rule per the instant case for prospective application, giving the State the right to review by appeal a trial court’s order granting the defendant a new trial. Such a holding would be entirely proper, though, in my opinion, the criminal rules are the more appropriate means of promulgating and applying such a procedural change in our law.

But this discussion is of purely academic interest, for a rule allowing appeals by the State is no longer necessary. Henceforth, the right of review of an order granting a new trial is available by way of petition for a writ of mandamus. To be sure, the State has gained much more than that: Where, as here, the writ is granted summarily by the Court of Criminal Appeals and this Court denies the petition for writ of certiorari or affirms the appellate court’s order, the State succeeds in setting aside the order granting a new trial and reinstating the judgment of conviction and sentence without giving the defendant the benefit of an in-depth consideration as mandated for review of cases by appeal.

SHORES, Justice

(dissenting):

I dissent. I cannot agree that a circuit judge in granting a new trial because he feels “that an injustice has probably been done” is “guilty of usurpation of power.” I would, therefore, overrule the application for rehearing.

      . For a better understanding of the undisputed facts, we have gone to the transcript of the trial and the transcript of the proceedings held before the trial judge on Pugh’s motion for a new trial. See, In Re Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972).

      . It is not necessary to a determination of the issue here presented to discuss the distinction between “appeals” and “original writs,” but, this Court, in construing Section 140 of the 1901 Constitution, which contains language similar to that in Amendment 328, Section 6.03(d), opined:
      This court has previously construed the meaning of the words “superintendence and control” as used in former Constitutions, and we must assume that, when they were brought forward into section 140 of the present Constitution, they were used and employed subject to their well-known interpretation. In the case of Ex parte Croom & May, 19 Ala. [561] 566, it was said: “it is the duty of this court, in order to enable it to carry out the powers with which the Constitution invests it, on exercising ‘a general superintendence of inferior jurisdictions,’ to adopt such course of proceedings as will make its control complete. — Ex parte Chaney, 8 Ala. 424.” In the case of Ex parte Candee, 48 AJa. 412, the court quotes approvingly from the case of Ex parte Croom & May, supra, and says: “Under this section of the Constitution, the Legislature may impose such restrictions and regulations, not repugnant to the Constitution, upon the appellate jurisdiction of this court, but it has no power to limit or prescribe the mode and manner in which it must exercise its power to issue the writs therein named, and such other remedial and original writs as may be necessary to give it a general superintendence and control of inferior jurisdictions. If they could, the power thus conferred upon this court by the Constitution might be so crippled and embarrassed as to render it worthless for the great and salutary purpose contemplated by the Constitution.”

        Ex parte Louisville & Nashville R. R. Co., 176 Ala. 631, 58 So. 315 (1912).

      . In a letter dated June 26, 1981, Pugh’s counsel stated, in part:
      Based upon the most recent cases, previously cited, applicable in the instant case, Harold Pugh may not be retried with an appropriate plea of double jeopardy.

      . See Justice Jackson’s concurring opinion in Brown v. Allen, 344 U.S. 443, 546, 73 S.Ct. 397, 407, 97 L.Ed. 469 (1953).

      . For an excellent example of this exception, see Ex parte Weissinger, 247 Ala. 113, 22 So.2d 510 (1945), in which the Court, by writ of mandamus, compelled the trial court to apply the venue statute in a divorce action according to its express terms.

      . The majority’s application of “abuse of discretion” in this motion for new trial context is misplaced, resulting from an ill conceived concern over the validity of a double jeopardy plea upon retrial. This unfortunate prejudgment of the ultimate outcome of the case produces an erroneous result oriented holding and is based upon a misinterpretation of Hudson v. Louisiana [1981], 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). This is a clear case of a trial judge’s entertaining personal doubts about the verdict and acting to prevent a perceived injustice. Hudson bars a second trial only where the new trial motion’s ground of insufficiency of the evidence is sustained.