author: BOWEN, Judge.

text:
    David Larry NELSON v. STATE.
    6 Div. 944.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      William M. Dawson, Frederick H. Hef-fler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the robbery and intentional killing of James Dewey Cash in violation of Alabama Code 1975, Section 13-11 — 2(a)(2). A jury found the defendant “guilty of the intentional killing of James Dewey Cash while in the course of robbing the said James Dewey Cash as charged in the indictment and fixed his punishment at death”. After weighing the aggravating and mitigating circumstances, the trial judge accepted the death penalty as fixed by the jury and sentenced the defendant to death by electrocution.

I

The constitutionality of the Alabama Death Penalty Act, Alabama Code 1975, Section 13-11-1 through Section 13-11-9, has been upheld. Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977), affirmed, 361 So.2d 640 (Ala.1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979). The defendant has raised no new or additional reason for invalidating this act which we have not previously considered. Cade v. State, 375 So.2d 802 (Ala.Cr.App.1978), affirmed, Ex parte Cade, 375 So.2d 828 (Ala. 1979); Wilson v. State, 371 So.2d 932 (Ala. Cr.App.1978), affirmed, 371 So.2d 943 (Ala. 1979); Beck v. State, 365 So.2d 985 (Ala.Cr. App.), affirmed, 365 So.2d 1006 (Ala.1978).

II

“It has been repeatedly held that a denial of funds to pay defense experts for investigations and the assistance of experts does not amount to a deprivation of constitutional rights.” Thigpen v. State, 372 So.2d 385, 386 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979). This includes psychiatric specialists and experts. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974). Pursuant to the defendant’s motion for a psychiatric evaluation, the court ordered the defendant examined by a licensed psychiatrist to determine if the defendant was suffering from any mental illness. This doctor found “no evidence of any mental disease process at all”. The court stated that it would consider a “prolonged examination” if there were any evidence that such was warranted. There was no plea of not guilty by reason of insanity. We find no error in the court’s refusal to order further psychiatric evaluation. The fact that a defendant who has been indicted for murder is indigent does not entitle him to a free psychiatric examination. Gales v. State, 338 So.2d 436, 437 (Ala.Cr.App.), cert. denied, 338 So.2d 438 (Ala.1976). A defendant has no right to receive a mental examination as to his sanity whenever he requests one. Pace v. State, 284 Ala. 585, 587, 226 So.2d 645 (1969).

hi

The defendant alleges that he was denied his constitutional rights by the facts that he was not given a preliminary hearing or an “adequate” hearing on his habeas corpus petition.

In Alabama there is no constitutional right to a preliminary hearing. Ex parte Flanigan, 278 Ala. 432, 178 So.2d 825 (1965). A preliminary hearing is not necessary to satisfy the requirements of due process. Scaife v. State, 337 So.2d 146 (Ala.Cr.App. 1976); Trammell v. State, 43 Ala.App. 308, 189 So.2d 760, cert. stricken, 280 Ala. 31, 189 So.2d 763 (1966). The defendant does not contend that he was denied any statutory right to a preliminary hearing under Alabama Code 1975, Section 15 — 11—1. See Duncan v. State, 369 So.2d 885 (Ala.Cr.App. 1979). Even if the statute he construed as giving a defendant an “absolute right” to a preliminary hearing upon timely request, the record contains no showing that any demand for a hearing was made by the defendant within thirty days following his arrest, as required by statute.

Initially the defendant was charged with two cases of first degree murder and one case of assault with intent to murder. Later he was charged under the Alabama Death Penalty Act for the two homicides.

With regard to the preliminary hearing, the record does show that on February 21, 1978, the defendant’s case was set down for a preliminary hearing. At this time defense counsel was “notified by the court that between the time of my appointment which was February 14th and February 21st, that the court had received information that in all likelihood this would be a capital case, and that I was not competent to try — to handle a capital case alone”. Defendant’s appointed counsel, on the two first degree murder charges which eventually became the basis for the capital indictments, had not had five years’ prior experience in the active practice of criminal law as required by Alabama Code 1975, Section 13-11-8, and was therefore not qualified to represent defendant in a capital case.

Experienced counsel was appointed to represent the defendant on March 14, 1978. On that date, although witnesses were present and the parties were ready to proceed, no preliminary hearing was held because the trial judge informed them “that the case had already been put on the grand jury and that, although (the defendant) had not yet been indicted, the case was waiting for the April grand jury, and, therefore, we could not have a preliminary hearing”. Assertions in the record indicate that a preliminary hearing was not held sooner because the State’s key witness, Ms. Linda Vice, was in the hospital because of actions by the defendant which formed the basis of an assault with intent to murder charge against him or because the State could not find her.

Defense counsel “immediately” filed a petition for writ of habeas corpus which was granted. Within two weeks a hearing was held and defense counsel had the opportunity to cross examine Ms. Vice and other witnesses for the State.

We attach no constitutional significance to the fact that defense counsel who participated in the habeas corpus hearing was different from defendant’s trial counsel who was appointed at a later date. There has been no allegation or indication that counsel was incompetent or negligent in his representation of the defendant. The fact that counsel admitted that his “cross examination was not as extensive ... as it should have been” only indicates the value of hindsight.

The trial court denied a petition for a second habeas corpus hearing “in view of the court’s ruling allowing the disclosure and the discovery”. The court granted substantially all the discovery requested by the defendant. These matters included “the district attorney’s assurance that he will make available whatever information as to the prospective jurors that may be called”; the district attorney’s assurance that he would disclose any favored treatment any witness might receive such as “any forbearance from criminal prosecution or investigation or anything affecting someone’s liberty or financial interest” other than the usual witness fees for transportation and lodging; the criminal record of any State witness; allowing the defendant to inspect any physical evidence; all the statements the State had from all witnesses that made statements, including toxicologist’s reports and the result of blood sample tests; and all matters alleged in defendant’s “motion for information necessary to receive a fair trial” and his “motion to compel disclosure”.

From a reading of the record it is obvious that the sole purpose of the preliminary hearing and second habeas corpus hearing was discovery. In view of the fact that one habeas corpus hearing had been held at which defense counsel had been permitted to subpoena witnesses and in view of the liberal discovery ordered by the trial judge plus the fact that defendant has never contended or shown that he has any statutory right to a preliminary hearing, we cannot say that the trial judge erred in refusing to grant a second habeas corpus hearing.

IV

The defendant alleges that the trial judge should have recused himself (1) because the trial judge had previously presided over a jury trial in which the defendant was convicted and this conviction was reversed on appeal, and (2) because the trial judge testified in the defendant’s habeas corpus hearing.

At the habeas corpus hearing the trial judge merely testified that the defendant was the same person who had been convicted in 1974 for murder (on a guilty plea following the reversal of his conviction). The defendant’s original conviction of murder in the second degree was reversed for the failure of the indictment to state the means, or quo modo, by which the crime was committed. Nelson v. State, 50 Ala. App. 285, 278 So.2d 734 (1973).

We find no basis for recusal. “A judge’s participation in the trial of a defendant for another crime does not, without more, furnish a basis for his recusal.” Messelt v. State, 351 So.2d 640, 641 (Ala.Cr. App.), cert. denied, 351 So.2d 642 (Ala.1977).

V

The trial court properly overruled the defendant’s several motions challenging the sufficiency of the State’s evidence.

Linda Faye Vice was the State’s key witness. She met the defendant in December of 1977 and she came with him from Anni-ston to Birmingham soon after Christmas. She knew that he had a pistol which he had apparently stolen from her uncle.

On December 31, 1977, they went to the Red Dog Saloon in Birmingham and met J. D. Cash, who invited them to a party. Both Ms. Vice and the defendant left the saloon with Mr. Cash and entered his cab.

Shortly after they were underway, the defendant told Cash to pull over, that he was going to get out. Cash stopped his cab and the defendant “pulled out the gun” and told Cash to give him his money. Cash handed the defendant a twenty dollar bill and told him that’s all he had. Then the defendant

“reached up for Mr. Cash’s watch to grab it off his arm and when he did, Mr. Cash grabbed the barrel of the gun and he (the defendant) just started pulling the trigger.”

Cash was shot once in the head and once in the chest. These wounds caused his death. The defendant and Ms. Vice got out of the cab and the defendant told her that if she “didn’t get him a way out of Birmingham, that he would kill me, too”.

On the night of January 2, 1978, Deputy Sheriff Dewey R. Gamble of Marion County, Tennessee, was patrolling Highway 41 between Jasper and the Hamilton County line. After observing a 1967 Chevrolet weaving over the road he stopped it and arrested the driver for driving while intoxicated. The defendant was sitting in the front passenger seat and, when asked, admitted that the car was his.

Deputy Gamble noticed that the defendant appeared to have something under his left leg. An inventory of the automobile produced a pistol from under the front seat. This pistol was later proven to be the weapon which killed Mr. Cash. Bloodstains on defendant’s clothes at the time of his arrest were type “A” and consistent with the victim’s blood type. Linda Sue Sparks, a rebuttal witness, observed Cash, the defendant and Ms. Vice leave the Red Dog Saloon together.

There was no evidence to indicate that Ms. Vice was an accomplice. The mere fact that a person witnesses a crime does not make him an accomplice. Davis v. State, 257 Ala. 447, 59 So.2d 592 (1953). Except where the State’s evidence undis-putedly makes the witness an accomplice, the defendant has the burden of showing the witness’s complicity. Jacks v. State, 364 So.2d 397, 403 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). Even the defendant admits in brief that “from her testimony, it is clear that the issue of robbery arose as an afterthought”. Even if the issue of whether Ms. Vice was an accomplice was for the jury, still the trial judge properly denied the defendant’s motion to exclude the State’s evidence for insufficient corroboration. Flanagan v. State, 369 So.2d 46 (Ala.Cr.App.1979).

VI

The constitutionality of the “one-for-one” jury strike system has consistently been upheld. Williams v. State, 377 So.2d 634 (Ala.Cr. App.1979).

VII

The defendant alleges that the trial court erred by failing to define the elements of murder in its oral instructions to the jury.

After instructing the jury on the elements of robbery the trial judge stated:

“(T)he burden is on the State to prove to you beyond a reasonable doubt and to a moral certainty, that while committing the robbery, the victim was intentionally killed. Now intention is a state of mind that the jury must determine from all the surrounding circumstances. It can be briefly defined as willfulness, without yielding to reason. That simply is intention. So, in order to convict this defendant with the crime for which he is charged, you must first determine whether there was a robbery committed and whether or not during the course of the commission of the robbery the victim was intentionally killed.”

In Clements v. State, 370 So.2d 723, 725-726 (Ala.1979), it was made clear that murder and intentional killing are not interchangeable and synonymous.

“It seems to us to be abundantly clear that the express language of the Alabama Death Statute makes it a capital offense to rob or attempt to rob ‘when the victim is intentionally killed’. Thus, it is for the aggravated offense of robbery when the victim is intentionally killed, not murder under aggravated circumstances, that the death penalty may be imposed under Section 13-ll-2(a)(2).”

While a better definition of intentional should express some idea of a determination to act in a certain way or do a certain thing, of purpose and design, we do not think that the trial judge was in error in not charging the jury on intent as it related to murder.

VIII

From the record it cannot be disputed that the vehicle in which the defendant was riding was stopped for a traffic offense. The driver was arrested for driving while intoxicated. The defendant was arrested for public drunkenness, “allowing a DWI to operate a moving vehicle”, and assaulting an officer. Deputy Gamble radioed for a wrecker to tow the car in and then inventoried the Chevrolet, finding a pistol and three spent rounds under the middle of the front seat.

An inventory search is one of the recognized exceptions to the warrant requirement rule. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Additionally, since the Chevrolet was stolen, the defendant lacked standing to object to the search. Lippold v. State, 365 So.2d 1015, 1018 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1022 (Ala.1979).

IX

On the same night that the defendant shot and killed Cash, he shot and killed a second man, Wilson W. Thompson, and seriously wounded Linda Vice.

At his trial no mention was made of the second murder and the assault. However, the defendant objected to any sentencing hearing being held prior to his trial on the second capital charge which was pending against him. It is contended that “any testimony by the defendant could have been used against him in the upcoming trial”.

The trial court was particularly sensitive to the defendant’s position and was careful to protect his rights by ruling that the State could not use anything from the sentencing hearing at the defendant’s second trial.

“ . .. I’m instructing the District Attorney, I will not allow it to be used in the second case, which ends in 15. It is 78-01115. In other words, I want it clear, even though there is not a Motion in limine as to that particular point at that time in Case No. 78-01115, I’m ruling, in limine, that any matters brought about as the result of this bifurcated hearing are not to be used for impeachment purposes or any other purpose by the State in the second case.”
* * * * * *
“I’m considering the fact that this man is under indictment for another capital felony and, consequently, I am on the Court’s own ruling in limine that any matters presented by the defendant, should he choose to testify in this bifurcated hearing, are not to be used in the second hearing.”
* * * * * #
“Well, evidently I didn’t make myself clear. I am ruling that the State cannot use anything that is presented in this hearing for any purpose in the second trial.”
* * * * * sf:
“I am going to let David Larry Nelson testify, if he chooses to testify and anything he says will be sealed by this Court as far as the second trial is concerned.”

We find no error in the refusal of the trial judge to delay the sentencing hearing.

X

Alabama Code 1975, Section 13-11-4, requires that:

“If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentencing hearing, which shall at least include the following:
(1) One or more of the aggravating circumstances enumerated in section 13-11— 6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and
(2) Any of the mitigating circumstances enumerated in section 13-11-7, which it finds insufficient to outweigh the aggravating circumstances.”

For the sake of clarity we set forth the entire order of the court sentencing the defendant to death.

“In accordance with law, the Court held a hearing on November 3, 1978, to determine whether or not the defendant would be sentenced to death in accordance with the verdict of the jury or be sentenced to life imprisonment without parole.
“The defendant was present in open court with his attorneys, Honorable William Dawson and Honorable Fredrick Heffler. The State was represented by Assistant District Attorney Donald Russell.
“Under Section 13-11-1 et seq. 1975 Code of Alabama this Court is under an obligation to make findings to determine mitigating and aggravating circumstances. The trial in this case was completed on October 11, 1978, with a jury verdict of guilty and punishment fixed at death. The testimony and evidence at trial is still fresh in the mind of the Court. The Court is cognizant of the exhibits and testimony offered and entered at trial. “The Court finds from all of the evidence and the jury verdict that the defendant is guilty of the intentional killing of James Dewey Cash while in the course of robbing the said James Dewey Cash. The Court further finds from the evidence introduced at the trial that this capital felony was especially heinous, atrocious and cruel. The evidence shows that the victim was shot in the head and again in the chest.
“The Court further finds that this capital felony was committed while the defendant was engaged in the commission of a robbery. The Court further finds that during this hearing, the defendant was convicted of Murder in the Second Degree in 1974. The Court further finds that the defendant has a significant history of prior criminal activity; that the defendant does have the capacity to appreciate the criminality of his conduct; that the defendant’s capacity to conform his conduct to the requirements of law was not substantially impaired; that there has actually been no evidence of domination by another party.
“The Court further has afforded the defendant the opportunity to rebut any and all hearsay evidence introduced in this hearing. The Court has further afforded the defendant the opportunity to offer evidence of mitigating circumstances.
“The Court finds that there are no mitigating circumstances.
“The Court has considered all the circumstances in this case and finds the aggravating circumstances enumerated above to be present and finds no reason whatsoever to change the punishment as fixed by the jury at death.”

Although the defendant has raised no objection to these findings, we cannot approve them. In cases in which the death penalty has been imposed, this Court must notice “any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court”. Alabama Rules of Appellate Procedure, Rule 45A.

Initially, we note that the court’s order does not contain a statement of “the findings of fact from the trial”. We interpret this statutory dictate as requiring a statement of the facts upon which the trial judge bases his finding that the defendant is guilty of the acts charged in the indictment rather than merely a statement of the conclusions and allegations of the indictment itself. Mack v. State, 375 So.2d 476 (Ala.Cr.App.1978), affirmed, 375 So.2d 504 (Ala.1979). Additionally, the trial court’s order does not contain a finding of facts from the sentencing hearing.

The facts of the actual killing in this case do not warrant the finding that the “capital felony was especially heinous, atrocious and cruel”. The aggravating circumstances found in Alabama Code 1975, Section 13-11-6(8) do not apply to every intentional killing.

“It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Jacobs v. State, 361 So.2d at 633.

The fact that the defendant has a “significant history of prior criminal activity” cannot be considered as an aggravating circumstance unless the history fits the confines of §§ 18-11-6(1) or (2).

“(1) The capital felony was committed by a person under sentence of imprisonment; “(2) The defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person; ...”

The statutory aggravating circumstances may not be added to or expanded. See Cook v. State, 369 So.2d 1243 (Ala.Cr.App. 1977), affirmed in part, reversed in part, 369 So.2d 1251, 1257 (Ala.1978), on remand, 369 So.2d 1260 (Ala.Cr.App.1979). However, the fact that there is a significant history of prior criminal activity may be considered by the trial judge in determining that the mitigating circumstance described in Section 13-11-7(1) (no significant history of prior criminal activity) is not applicable. The trial judge in his order should make it clear that he is not considering as aggravating circumstances under Section 13-11-6 the lack of the mitigating circumstances described in Section 13 — 11—7.

The trial court also found as an aggravating circumstance the fact that “this capital felony was committed while the defendant was engaged in the commission of a robbery”. Alabama Code 1975, Section 13-11-6(4). This circumstance does not “aggravate” the crime with which the defendant was charged, i. e., intentional killing during the course of a robbery.

The word “aggravate” means “(t)o make worse; make worse of a burden; make more of a trouble”. The American Heritage Dictionary of the English Language (1969). See also State v. Rand, 132 Me. 246, 169 A. 898, 899 (1934).

“To ‘aggravate’ means to make heavy or heavier; to add to; to increase; also, to load; burden; to make worse or more severe; to render less tolerable or less excusable; to make more offensive; to enhance; intensify.”

Judge Bookout has long espoused the view that the aggravating circumstance that the capital felony was committed in the course of a robbery is not applicable in a capital-robbery case.

“To me, it is impermissible in a capital-robbery case to find as an aggravating circumstance that the capital felony was committed in the course of a robbery. Here, the basic crime charged is robbery, and the circumstance which elevates it to a capital felony is the intentional killing. To say that the crime of ‘robbery . . . when the victim is intentionally killed by the defendant’ is aggravated by being committed in the course of a robbery is condemning the defendant twice for the same act — robbery or stealing money. “In my opinion the same rationale expressed in Cook v. State, Ala., 369 So.2d 1251 (1979), applies to the instant circumstance. There, the Alabama Supreme Court declared that ‘pecuniary gain’ could not be used as an aggravating circumstance where the charge is capital robbery because the defendant would be condemned twice for the same act — stealing money. In other words, pecuniary gain is a circumstance of every robbery. Likewise, every capital robbery occurs during the commission or attempt to commit robbery. Since robbery or attempted robbery is an element of every capital robbery case, it could not logically be considered as an aggravating circumstance of the latter. The same reasoning is set out in my concurring opinion in Morrison v. State, Ala.Cr.App., 398 So.2d 730 (1979), and in Johnson v. State, Ala.Cr. App., 378 So.2d 1164 (1979). I likewise wrote to the same aggravating circumstance in a special concurrence in Thomas v. State, Ala.Cr.App., 373 So.2d 1149, 1160 (1979).”
Specially concurring opinion in Bracewell v. State, Ala.Cr.App., 392 So.2d 1266 (1980).

Consequently, this cause must be remanded with instructions that the order of the trial court be written in accordance with the provisions of the opinion. Since two of the aggravating circumstances found by the trial judge are not applicable, the judge must reconsider and reweigh the aggravating and mitigating circumstances.

For the reasons indicated, we affirm the conviction but remand the cause for proceedings in accordance with this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

All Judges concur.

      . In this regard, the only mention in the record of anything that could be construed as a request is as follows:
      “Defense Counsel: I don’t recall whether we were asked to waive it or what, but we stated that we wanted a hearing and we were not granted a hearing that we were told it was on the grand jury and so there would be no hearing.”
      Also, the defendant stated that he told the judge that he wanted a preliminary hearing. The record does not reveal when either request was made.


source: Caselaw Access Project

author: PER CURIAM. MADDOX, JONES and ADAMS, Justices

license: Public Domain

text:
    Ex parte State of Alabama, ex rel. Attorney General. (In re: David Larry NELSON v. STATE of Alabama).
    79-486.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   PER CURIAM.

Reversed and remanded to the Court of Criminal Appeals on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981).

REVERSED AND REMANDED.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala. 1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386 (footnote 7), 65 L.Ed.2d 392 (1980).

On remand, Ala.Cr.App., 405 So.2d 401.


author: PER CURIAM.

text:
    David Larry NELSON v. STATE.
    6 Div. 944.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    William M. Dawson, Frederick H. Hef-fler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   AFTER REMANDMENT

PER CURIAM.

This case is reversed and remanded on authority of the Alabama Supreme Court’s decision in Nelson v. State, Ala., 405 So.2d 401 (1981).

REVERSED AND REMANDED.

All Judges concur.


author: TYSON, Judge.

text:
    Oree STEWART v. STATE.
    4 Div. 911.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Kenneth W. Quattlebaum of Brogden & Quattlebaum, Ozark, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The appellant was convicted of assault in the second degree for the beating of a seventeen month old child. The trial court fixed his punishment at eight years in the state penitentiary.

The State’s evidence in this case is largely circumstantial. There were no eyewitnesses to the assault which resulted in the injuries to the child in question. Briefly, the State’s evidence proved that Ms. Shiela Freeman and the appellant lived together from August through November of 1980. Ms. Freeman worked at a restaurant and during work hours she often left her two children, a two year old girl and the seventeen month old victim, Bobby Earl, in the appellant’s care.

Approximately a month and a half after Ms. Freeman had lived with the appellant she began to notice injuries to Bobby Earl; the injuries would occur when Bobby Earl was left with the appellant. On different occasions Ms. Freeman noticed scratches on Bobby Earl’s head and stomach, bruises on his knees with one knee more swollen than the other and bruises on the child’s head and around his eyes. When Ms. Freeman confronted the appellant about these injuries appellant denied scratching Bobby Earl. He also told her he didn’t know how the child’s knees became bruised other than “he was crawling.” (R. 19) Appellant’s explanation for the bruises around Bobby Earl’s eyes and to his head was that “he fell out of the chair.” Ms. Freeman described the chair from which Bobby Earl allegedly fell as being “not too high,” a regular “sofa” chair with “fur type stuff on it.” (R. 20)

Later, in October, Ms. Freeman discovered a bum on Bobby Earl’s buttocks after the child had been left with the appellant. Appellant explained that the burn had occurred when Bobby Earl “fell on the ash tray;” however, appellant was unable to produce any burned clothing the child should have been wearing.

Then, on November 22, 1980, a Saturday, Ms. Freeman again left her children in appellant’s care while she went to work. When she returned that night appellant was not there but the children were in bed asleep. The next morning Ms. Freeman discovered that both of Bobby Earl’s eyes were blacked, his head was badly bruised and there was a large knot on his forehead. When Ms. Freeman confronted appellant about this episode, he again could offer no explanation for the injuries.

On Tuesday, November 25,1980, Mrs. Kathy Brooks, a social worker with the Dale County Department of Pensions and Security, came by to see Ms. Freeman and then went with her to take Bobby Earl to the hospital. Mrs. Brooks described Bobby Earl’s injuries as follows:

“[H]e had two very dark eyes that looked like black eyes, and he had a large knot in the middle of his forehead. His leg was a little swollen. He had bruises on the right side of his face, and we took the child’s diaper off and there was a large circular pink area on one of his buttocks that had what looked like to be a scab forming right in the middle of it, a raw area.” (R. 39-40)

Photographs taken at the hospital verify Mrs. Brooks description of Bobby Earl’s condition in all details. Mrs. Brooks stated that based on her investigation of the incident a warrant was sworn against the appellant.

Ms. Freeman further testified that she received a letter from appellant while he was in jail. Appellant told her that certain individuals from Montgomery had visited his cell inquiring about “the kids” and that he had given them a “phony stand (sic).” Appellant wanted her to “leave Ozark for a little while until this blows over.” (R. 26)

The appellant’s motion to exclude the State’s evidence was denied. Evidence presented by the defense was in certain respects conflicting with the State’s case.

I

The appellant contends that the circumstantial evidence presented by the State was insufficient to support his conviction. We disagree. This court is required to view the evidence in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not substitute its judgment for that of the jury. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

Circumstantial evidence is not inferior evidence, Thomas v. State, 363 So.2d 1020 (Ala. Cr.App.1978), and will support a conviction as strongly as direct evidence provided it points to the guilt of the accused. Kelsoe v. State, 356 So.2d 735 (Ala. Cr.App.1978). While mere speculation, conjecture, or surmise, will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inferences it chooses to draw. Kontos v. State, 363 So.2d 1025, 1034 (Ala.Cr.App.1978).

Our Supreme Court in Dolvin v. State, 391 So.2d 133, 137, 138 (Ala.1980) adopted the standards set out in Cumbo, supra, for testing the sufficiency of circumstantial evidence which we find controlling here:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).
“(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):
“Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words, * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude. Williamson v. United States, 5th Cir. 1966, 365 F.2d 12, 14. (Emphasis supplied.)
“The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.
“See also Blair v. State, 18 Ala.App. 615, 93 So. 45 (1922). Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919); see also Evans v. State, 39 Ala.App. 404, 408, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).”

See also Hayes v. State, 395 So.2d 127 (Ala. Cr.App.1980), cert. denied, 395 So.2d 150 (Ala.1981).

As was stated in Hayes, supra: “Guilt need not be proven to the ‘exclusion of every possibility of innocence’ to warrant a conviction. . . . The State’s evidence should not be stricken out, merely because, when disconnected it is weak and inconclusive, if, when combined, it may be sufficient to satisfy the jury of an accused’s guilt.” 395 So.2d, at 147. Applying the foregoing principles of law to the facts in this case, we hold that the evidence was sufficient to sustain the jury’s verdict.

II

The appellant also maintains that the State failed to prove the necessary elements to establish a prima facie case of assault in the second degree under any of the alternative categories listed under Ala. Code § 13A-6-21 (Supp.1977). We, again, disagree with appellant’s contention.

For the purpose of this appeal we need only consider Section 13A-6-21(a)(2) which reads in pertinent part:

“A person commits the crime of assault in the second degree if: With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or a dangerous instrument.”

Ala. Code § 13A-1-2(11) and (12) (Supp. 1979) define “deadly weapon” and “dangerous instrument” as follows:

“DEADLY WEAPON. A firearm or anything manifestly designed, made or adopted for the purposes of inflicting death or serious physical injury, and such term includes, but is not limited to, a pistol, rifle or shotgun; or a switch-blade knife, gravity knife, stiletto, sword or dagger; or any billy, black-jack, bludgeon or metal knuckles.
“DANGEROUS INSTRUMENT. Any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is highly capable of causing death or serious physical injury, and such term includes a “vehicle,” as that term is defined in subdivision (13) of this section.” (Emphasis added).

Appellant contends that there was no evidence of the use of a deadly weapon or dangerous instrument to inflict the injuries on the child. However, the jury could easily infer from the evidence that the appellant used his fists or some other object to beat Bobby Earl. The photographs taken at the hospital, alone, bear this out.

Long before the adoption of the new criminal code on January 1, 1980, Alabama subscribed to the view that it was the use of the weapon or instrument, and not solely its nature, that determined whether or not it was esteemed deadly. Helton v. State, 372 So.2d 390 (Ala.Cr.App.1979) and cases cited therein. This emphasis on “use” under the circumstances had been codified in Section 13A-1—2(12). Moreover, there is no limitation expressed in § 13A-1-2(11) which would prevent human fists from being considered a “deadly weapon” under appropriate circumstances. Lebo v. State, 55 Ala.App. 624, 318 So.2d 319, cert. denied 294 Ala. 763, 318 So.2d 334 (1975); Thomas v. State, 229 S.E.2d 458, 460, 237 Ga. 690, 88 A.L.R.3d 1172 (1976); State v. Clark, 214 Kan. 293, 521 P.2d 298, 300 (1974).

In Helton, supra, this court held that: “while feet or shoes are not deadly weapons per se, the manner of their use in particular situations may make them deadly weapons.” 372 So.2d, at 393. By analogy, we think the same principles apply here to appellant’s fists. Certainly the use of an adult man’s fists to beat a seventeen month child may appropriately allow those fists to be classified as a deadly weapon or a dangerous instrument. Therefore, the State’s evidence supported the jury verdict under Section 13A-6-21(a)(2).

Ill

The appellant’s final allegation is that the trial court erroneously refused to strike certain prospective jurors he challenged for cause. Appellant contends those jurors were biased and inflamed against him and should have been struck. We find no merit to this argument.

For the sake of clarity we here set out the pertinent part of the record in which the prospective jurors were questioned.

“MR. McCABE: Ladies and gentlemen, this case involves the alleged beating of a very small child, seventeen months. Would that fact in and of itself cause you any bias one way or another in this case? Would that inflame you or make you in any way biased against this Defendant?” (R. 7)

Eleven prospective jurors responded affirmatively.

Assistant District Attorney William B. Matthews then countered with the following questions:

“MR. MATTHEWS: May it please the Court, ladies and gentlemen of the jury, this last question he asked you, are there any of you who answered who could not give this man a fair trial in your own minds, regardless of the fact that it involves a small child?
“JURORS: (No response)
“MR. MATTHEWS: What I mean is, can you take the evidence that comes from the stand, and give him all the rights that he is entitled to, and waive (sic) the evidence and make a determination based on the evidence? That’s all that we are asking. Is there anybody that can’t do that? “JURORS: (No response)” (R. 8)

Later, defense counsel attempted to strike the eleven prospective jurors in question when the following exchange occurred:

“MR. McCABE: Your Honor, I believe we are entitled to strike these people who stated that they would automatically be biased against the Defendant.
“THE COURT: I don’t think that’s what they were saying. They were saying that they didn’t like that, because nobody likes that.
“MR. MATTHEWS: I purposely asked them could they give the man a fair trial, and they—
“THE COURT: That’s all you’re entitled to. Have you got a list of their names? “MR. McCABE: I have, your honor.
“THE COURT: Just have a seat. Those of you who answered the question as to whether or not the fact that this case is concerned with the alleged beating of a seventeen month old child, whether or not that would inflame you or prejudice you, if you answered that question yes, I would appreciate it if all of you that answered it would just come up here and stand in front of the bench so I can ask you a couple of questions. When Mr. McCabe asked you that question, if you raised your hand.
“(Whereupon, jurors coming forward at this time.)
“THE COURT: It was stated by Mr. McCabe in his questions to the jurors that this case may involve the beating of a small child. The question is whether or not — regardless of whether or not the case involves a beating of a small child, whether or not you can put that out of your mind and hear the evidence as it comes from the witness stand, and the law as the Court gives it to you, and based on the evidence and the law in the case, render an impartial verdict in deciding whether or not the Defendant is guilty of what he is charged of. In other words, just merely because a small child has been beaten, would that so inflame you that you could not weigh the evidence, hear the evidence, apply the law to the facts, and render an impartial verdict according to the facts of the case? In other words, the State has the burden of proving the Defendant guilty beyond a reasonable doubt by the evidence from the witness stand. Could you put the fact that maybe a small child is involved, out of your mind, in determining whether or not the State has proven their case? That’s really what the test is. Of course, it makes anybody mad and inflamed if a small child is beaten, but the question is whether or not you could put that out of your mind and give Oree Stewart a fair trial; that is, listen to the evidence, the law as the Court gives it to you, apply the law to the facts, and decide whether or not the defendant is guilty or not. Is there anyone that feels that just because a small child is involved that you could not give the Defendant a fair trial.” (R. 9-11)

Seven prospective jurors of the original eleven to whom the question was addressed answered the trial judge that they would be unable to give appellant a fair trial. Those seven were struck for cause, but the remaining four, who did not respond affirmatively to the trial court’s question, were not struck for cause from the venire. This was not error.

Ala. Code § 12-16-150 (1975) provides a statutory list of grounds for which a juror may be challenged for cause by either party. Contained within that list is § 12-16-150(7), relied upon by appellant, which states that a challenge for cause lies where a juror “has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.” In addition to the grounds for challenge for cause under § 12-16 — 150, grounds for challenge for cause under the common law still exist, when not inconsistent with the section. Mullis v. State, 258 Ala. 309, 62 So.2d 451 (1952); Felton v. State, 46 Ala.App. 579, 246 So.2d 467 (1971).

It is evident that the jurors appellant challenged for cause did not have a “fixed opinion” as to his guilt or innocence. A “fixed opinion” which will bias a verdict is one that is a conviction or prejudgment, a strong or deep impression which closes the mind of a juror and combats the testimony and resists its force. Fuller v. State, 269 Ala. 312, 113 So.2d 153, 161 (1959), cert. denied, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960); Nobis v. State, 401 So.2d 191 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). In Peterson v. State, 227 Ala. 361, 150 So. 156, 159 (1933), cert. denied, 291 U.S. 661, 54 S.Ct. 439, 78 L.Ed. 1053 (1934), our Supreme Court said:

“What is said in Long v. State, 86 Ala. 36, 5 So. 443, 447, finds application here: “ ‘While some of the expressions in the opinion may not be sufficiently limited or qualified for use as general definition, the following may be deduced from the cases, when compared with each other, as expressing the meaning of a fixed opinion which would bias the verdict. The mere formation of an opinion, founded on rumor or hearsay, which is subject to change on hearing the evidence, and leaves the mind of the juror free to impartially consider the whole evidence, without giving undue credence to that which tends to prove the facts as heard, and to apply to the evidence the law as pronounced by the court, is not sufficient to disqualify. But an opinion, whether founded on rumor or conversations with witnesses, or on observation, which is a conviction, a prejudgment, disqualifying the juror to impartially consider the whole evidence, — that which tends to prove the facts as heard, as well as that which contradicts or explains, — and to apply free from bias the law as given in charge by the court, is a fixed opinion which will bias the verdict. The mind of the juror should be in such a state of freedom, that he is capable of giving to the accused the weight of the presumption of innocence, and the benefit of a reasonable doubt. The statute affirms, in concise, intelligible, and comprehensive language, the common-law rule, as declared by Chief Justice Marshall in Burr’s trial. “That light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to him.”
“ ‘The sufficiency of the cause of challenge is determined by the trial court, and the inquiries are addressed to the conscience of the juror under oath. He is examined touching his qualifications, in the presence of the judge, who sees his manner of answering the questions, and the probing of his conscience, which is often times more clearly indicative of his disinterestedness or bias, than the mere words used. The reviewing court, therefore, should exercise caution, and the finding of the trial court should not be set aside, unless it affirmatively appears, that, on the answers of the juror, taken as a whole, he entertained a fixed opinion which would bias his verdict. ’ ” (Emphasis added.)

Moreover, as was stated by this court in Tidmore v. City of Birmingham, 356 So.2d 231, 234 (Ala.Cr.App.1977), cert. denied, 356 So.2d 234 (Ala.1978): “[t]o disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render.” (Emphasis added.)

Since the four prospective jurors, who were allowed to remain on the jury venire, did not exhibit a fixed opinion as to the guilt or innocence of appellant which would bias their verdict, appellant’s ground for challenge must rest on common law. Thomas v. State, 373 So.2d 1167, 1169 (Ala. 1979); Nobis, supra. When a common law ground is at issue there must be a showing of absolute bias leaving nothing to the discretion of the trial court, or there must be a mixed question of law and fact to be determined by the trial court exercising its sound discretion. Thomas, supra; Mullis v. State, 258 Ala. 309, 62 So.2d 451 (1952). We find that this case presents a matter within the discretion of the trial court. A trial court’s ruling on challenges for cause based on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Price v. State, 383 So.2d 884 (Ala.Cr.App.), cert. denied, 383 So.2d 888 (Ala.1980); Motes v. State, 356 So.2d 712 (Ala.Cr.App.), cert. denied, 356 So.2d 720 (Ala.1978). Appellant’s allegations fall far short of proving absolute bias and there can be no contention that the juror’s responses constituted probable prejudice as defined in Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961), and cases cited therein.

Based on the foregoing principles, we hold that the trial court properly exercised its discretion in overruling appellant’s challenges for cause.

We have considered each issue raised by appellant. In addition, we have searched the record, as required by law, for errors prejudicial to appellant’s substantial rights and have found none. The Circuit Court’s judgment of conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Larry DENNARD, Jr. v. STATE.
    4 Div. 919.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      E. H. Graves, Jr., Eufaula, for appellant.
    Charles A. Graddick, Atty. Gen. and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Larry Dennard, Jr. was indicted by the Barbour County Grand Jury for the February 10, 1981, first degree burglary of the dwelling of General Lee Bentley. Trial was had on March 17,1981 with the jury finding appellant guilty as charged. The trial court sentenced appellant to ten years’ imprisonment. From that conviction he now appeals in forma pauperis.

During the early morning hours of February 10, 1981, appellant and two others drove to the residence of General Lee Bentley. The three entered Mr. Bentley’s trailer, apparently looking for marijuana supposedly belonging to Mr. Bentley’s son, whom they had previously picked up. Their commotion awakened Mr. Bentley. He identified appellant as the one having the pistol. He stated appellant fired the gun once inside the trailer and once outside. Mr. Bentley testified that appellant made numerous threats upon his life.

Appellant led Mr. Bentley outside where a struggle ensued. Mr. Bentley was able to chase appellant away. He returned to his trailer, procured a rifle, and shot the other intruders. Subsequently, appellant returned to the scene where he was arrested.

Appellant’s confession was admitted into evidence wherein he admitted entering Mr. Bentley’s trailer with a pistol, pointing it at him, and firing it twice, once inside the trailer and once outside of it.

Appellant raises no issue on appeal as to the sufficiency of the State’s evidence. Nevertheless, after a careful review of the evidence presented on behalf of the State, we find no error in the trial court overruling appellant’s motion to exclude the State’s evidence and submitting it to the jury for its consideration. § 13A — 7-5 Code of Ala. (Supp.1979).

I

Appellant argues that the trial court erred in denying him the right to cross-examine Mr. Bentley concerning an event occurring approximately two years prior to the instant incident where Mr. Bentley and his wife supposedly caught a ride with appellant and/or his confederates in exchange for their having sexual relations with his wife. Appellant’s intentions were disclosed during his proffer to the trial court outside the presence of the jury.

As this court stated in Hill v. State, Ala.Cr.App., 366 So.2d 296, 314 (1978); affirmed, Ala., 366 So.2d 318 (1979):

“Evidence, to be competent and admissible, must be relevant. That is to say, evidence must tend to prove or disprove the issues before the jury. The determination of the relevancy or lack of relevancy of particular evidence rests largely in the sound discretion of the trial judge. It is, therefore, the duty of the trial judge to limit evidence to the points in issue so that the attention of the jury is not distracted, nor withdrawn from the primary issues, to be directed towards foreign matters or issues of questionable or doubtful relevancy.” (Citations omitted).

See also McLeod v. State, Ala.Cr.App., 383 So.2d 207 (1980); Hembree v. City of Birmingham, Ala.Cr.App., 381 So.2d 664 (1980).

We find appellant’s inquiry irrelevant to the issues before the jury. Thus, no error was committed by the trial court in its ruling.

II

Appellant asserts that the trial court erred in admitting his confession into evidence. He contends that at the time of his statement he was intoxicated to the point of mania thereby rendering it involuntary.

Eufaula Police Investigator Early Dink-ens, testifying at a hearing outside the presence of the jury, stated that although he could tell that appellant had been drinking, he did not appear drunk or intoxicated on marijuana. No other testimony bearing on appellant’s degree of intoxication was offered. He testified to giving appellant his Miranda warnings. Appellant’s waiver of rights form containing such was admitted into evidence. Investigator Dinkens stated that no threat, promise, reward, or inducement was made to appellant in exchange for his statement.

In Tice v. State, Ala.Cr.App., 386 So.2d 1180, 1185, cert. denied, Ala., 386 So.2d 1187 (1980), we stated:

“The voluntariness of an alleged confession is a question of law addressed to the trial court, whose ruling, upon preliminary proof, will not be disturbed on appeal unless it appears to be contrary to the great weight of the evidence or is manifestly wrong. The degree of intoxication which would affect the voluntariness of a statement is a question of fact initially addressed to the trial court and, depending upon its ruling, then to the jury for its consideration.
“Intoxication, short of mania or such impairment of the will and mind as to make an individual unconscious of the meaning of his words, will not render a statement or confession inadmissible.” (Citations omitted).

In the instant case, we find no evidence to support appellant’s assertion. Consequently, the trial court properly admitted his confession into evidence.

Ill

Lastly, appellant contends that the trial court improperly allowed the State to impeach one of its witnesses.

During the direct examination of State’s witness Johnny Parker, who was with appellant and his confederates earlier in the evening on February 9, the State asked him several questions concerning appellant’s comments about what he planned to do upon arriving at the Bentley residence. The witness refused to relate the substance of appellant’s statements, although he had made a statement to the police that evening reflecting such. The State claimed surprise by the answers of the witness and over objection used his written statement to elicit that appellant had said several times that,

“ ‘We will go over and pick up Lamar (Bentley) and carry him out to get him drunk, then we’ll beat him up, throw him out by the road, and then we will go kill his daddy and rape his mama.’?” (R. 37)

Although one may not generally impeach his own witness, an exception exists where a party may, when put to a disadvantage by unexpected answers for the purpose of showing surprise or refreshing the witness’s recollection, ask him if he had not made prior statements inconsistent or contrary to his instant testimony. Under the theory of surprise, the State may elicit from a witness the fact that he had made prior inconsistent statements and the contents thereof. Isbell v. State, 57 Ala.App. 444, 329 So.2d 133, cert. denied, 295 Ala. 407, 329 So.2d 140 (1976); Edwards v. State, 51 Ala.App. 433, 286 So.2d 308, cert. denied, 291 Ala. 777, 286 So.2d 313 (1973); Allen v. State, 51 Ala.App. 413, 286 So.2d 88 (1973); see also Lake v. State, Ala.Cr.App., 390 So.2d 1088, cert. denied, Ala., 390 So.2d 1093 (1980); Jackson v. State, Ala.Cr.App., 375 So.2d 1271, cert. denied, Ala., 375 So.2d 1274 (1979).

We find no error in the trial court’s ruling allowing the State, by way of surprise, to question its witness concerning his prior inconsistent statement and elicit the portions contradictory to his instant testimony.

We have carefully examined this record and find same to be free of error. The judgment of conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Harold E. PINKARD v. STATE.
    8 Div. 490.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      Barry Mansell, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

The appellant was indicted by a Franklin County Grand Jury for escape in the first degree. On October 6, 1980, a Franklin County Circuit Court jury found appellant guilty of the charged offense. On November 20, 1980, in a pre-sentencing hearing, the trial court, after the state produced four certified copies of judgments of felony convictions wherein the defendant was represented by counsel, sentenced appellant to life imprisonment under the Habitual Offender Act.

The record shows that, in the early morning hours of August 4, 1980, the jailer on duty at the Franklin County jail heard bumping noises upstairs in the jailhouse. When the jailer walked upstairs to investigate, he discovered that the appellant was missing from the cell he had seen appellant in just before midnight. He noted that the lock had been sawed in two and he found a hacksaw blade in the appellant’s cell.

After the jailer had reported the escape, a deputy sheriff investigated the scene. He also noticed that appellant’s cell door had been tampered with and he noted that the cell door was open. While investigating outside the jailhouse, he found the lock outside of a jailhouse window that had been broken. The deputy testified that he believed that the appellant had made his escape through this broken window. The deputy then put out a bulletin to apprehend appellant.

About one week later the deputy took custody of the appellant. He was being held in the custody of a Mississippi county jail. The deputy brought appellant back to the Franklin County jail.

The state then presented evidence indicating that the appellant was serving a non-completed term of six years for the conviction of grand larceny, a felony, when he escaped.

The appellant contends that the trial court committed reversible error in overruling his motion to dismiss or to quash the indictment. The appellant claims that the indictment is fatally defective because it failed to allege a criminal offense and failed to adequately inform the defendant of the offense the state sought to charge against him. We do not agree.

The instant indictment reads as follows: “The Grand Jury of said County charge that before the finding of this indictment Harold Edward Pinkard [appellant], whose name is unknown to the Grand Jury other than as stated, having been convicted of the offense of grand larceny, a felony, on November 27,1979, for which he was sentenced to 6 years in the penitentiary, he escaped or attempted to escape, on to-wit: August 4, 1980, from custody imposed pursuant to that conviction, in violation of Section 13A-10-31 of the Code of Alabama.”

The record shows that, on September 25, 1980, the defendant pleaded not guilty. Subsequently, on October 6,1980, the appellant filed a motion to dismiss or quash the indictment and, on the same day, argued the motion in the trial court. The trial court overruled the motion. The record indicates that, at least as of October 6,1980, the appellant was informed that the state intended to invoke the Habitual Offender Act in a pre-sentencing hearing if the appellant was convicted of the substantive offense of escape. Approximately six weeks after denial of the appellant’s motion, the trial court held a pre-sentencing hearing in order to hear evidence of prior convictions. The trial court then sentenced appellant to life imprisonment under the Habitual Offender Act.

As this court held in Stringer v. State, Ala.Cr.App., 372 So.2d 378, cert. denied Ex parte Stringer, Ala., 372 So.2d 384 (1979) the law in Alabama is as follows:

“The proper procedure to challenge the validity of an indictment is by demurrer [cases cited]. This the appellant did not do, and he now raises the issue for the first time on appeal. Ordinarily, one waives any irregularities in the indictment by appearing and pleading in the trial court, and a plea to the merits is considered an admission of a valid indictment. [cases cited]. ‘However, due process dictates that a defect associated with an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him cannot be waived by failure to timely demur.’ Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977).”

Such a fatal defect is not present in the instant indictment.

Appellant specifically contends that the indictment is fatally flawed because (1) it failed to state that the appellant was in “lawful” custody (2) and it failed to state from where and from whose custody appellant escaped.

As to the contention that the absence of the words “lawful custody” was a fatal defect in the indictment, this court recently ruled that such an absence was not fatal to the indictment. In Black v. State of Alabama (1981) 401 So.2d 320 (Ala.Cr. App. 1981), this court stated:

“Appellant asserts that without a ‘lawful’ detention there can be no offense of escape; therefore, it must be spelled out in the indictment. In lieu of ruling on this assertion, we need only point to the case of Summers v. State, Ala.Cr.App., 348 So.2d 1126, cert. denied, 348 So.2d 1136 (Ala.), cert. denied, 435 U.S. 981, 98 S.Ct. 1633 (1977), for the following statement as to the due process requirements for a sufficient indictment:
“ ‘An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may insure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.’
“Based on these guidelines, which also embody our preference for substance over form in our modern pleading, we find that this indictment was clearly sufficient to apprise the appellant of the charge against him and to safeguard against double jeopardy and improper judgments.”

The appellant also contends that the indictment is fatally defective because it does not specify from whose custody or from where appellant escaped. Assuming for a moment that such language is essential without actually deciding the issue, the indictment does in fact state from whose custody and from where appellant escaped.

The indictment refers to the statute under which the appellant was prosecuted (Section 13A-10-31, Code of Alabama) and tracks almost the identical language of the relevant portion of the statute. The statute states that a person commits the crime of escape in the first degree if the defendant “having been convicted of a felony, y(3)27 escapes or attempts to escape from custody imposed pursuant to that conviction.” (Emphasis added.) Under Section 13A-10-30, the definitional statute for escape offenses, custody is defined as “A restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court ...” (Emphasis added.)

The commentary to Sections 13A-10-31 through 13A-10-33 defines “custody” as any detention pursuant to lawful arrest or court order.

Therefore, the new statute on first degree escape coupled with the general definitional statute on escape, states from whose custody the appellant escaped (“. . . detention by a public servant”) and from where appellant escaped (from “custody” defined as any detention pursuant to lawful arrest).

The appellant cites two cases, Eady v. State, Ala.Cr.App., 369 So.2d 841, (1979); Brantley v. State, Ala.Cr.App., 340 So.2d 902 (1976), to support his contention that the absence of the above discussed information was a fatal defect in the indictment. A reading of these eases does not support this contention. The two cases did not hold that certain information must be included in an indictment charging escape. Instead, the two cases addressed an issue of a variance between pleadings and proof, an issue not raised here.

Further, both cases were decided prior to January 1, 1980, the date the new criminal code came into effect. Thus, the eases dealt with the previous escape statutes (Sections 13-5-65 and -63, Code of Alabama 1975) that contained different elements than the present statute (Section 13A-10-31, Code of Alabama). Therefore, no pre-1980 cases dealing with indictments under the prior law of escape can be used to determine the sufficiency of indictments under the present law of escape.

Since the information at issue is either in the indictment or, if absent, was not an essential element of the offense that leaves the accused unaware of the nature and cause of the charge against the appellant, there is no fatal defect in the indictment. As such, we find no defect in the indictment rendering it void and subject to challenge in any manner other than by way of demurrer timely filed in the trial court. The appellant failed to file a proper and timely challenge, and no error can thus be attributed to the trial court in this regard. Stringer, supra.

Although the appellant chose not to argue the issue on appeal, the appellant contended in the trial court that the indictment was fatally defective because it did not mention that the prosecution intended to invoke the Habitual Offender Act at trial. This issue was argued in a pre-trial hearing just prior to trial on the motion to quash the indictment. Thus, appellant was notified before trial. This court, in Sullen v. State of Alabama, [Ms. October 6, 1981] (Ala.Cr.App. 1981) recently addressed the issue of pre-trial notice of sentencing under the Habitual Offender Act. The court stated, “Appellant’s final assertion is that he had an absolute right to be informed prior to the trial on the substantial charge, of the prosecution’s intention to have him sentenced, if convicted, as a ‘habitual felony offender.’ ”

There is no merit in this contention in light of our recent decisions which specify that there is no pre-trial notice requirement. Holley v. State, Ala.Cr.App., 397 So.2d 211, cert. denied, Ala., 397 So.2d 217 (1981); Smith v. State, (1981), 401 So.2d 251 (Ala.Cr.App. 1981); Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App. 1981).

Therefore, since pre-trial notice is not a requirement in invoking the Habitual Offender Act, the indictment need not state the prosecution’s intent to invoke it at sentencing.

Appellant next contends that the trial court committed reversible error in overruling appellant’s objection relating to evidence of appellant’s prior grand larceny conviction and subsequent imprisonment from which he escaped. Specifically, appellant argues that the document was not a judgment entry as required. Appellant also contends that the document, a certified copy and not the original, violated the best evidence rule.

There is no merit to either argument.

The appellant argues that the purported judgment entry, mainly because it was not signed by the presiding trial judge, was not a judgment entry. He apparently claims that the judgment is but a docket entry or a trial docket sheet, and he cites cases that state that use of a trial docket sheet in an escape case is an improper method of proving that a prisoner was confined under a lawful charge or conviction of felony.

The appellant correctly states the law that a trial docket sheet is an improper document in establishing a prior conviction. Hall v. State, Ala.Cr.App., 352 So.2d 8, cert. denied Ex parte State, 352 So.2d 11 (Ala. 1977). But the document in the present case is not, as the appellant contends, a trial docket sheet or docket entry. It is a valid judgment entry.

The judgment entry is as follows:

“JUDGMENT ENTRY
“STATE OF ALABAMA IN THE CIRCUIT COURT OF
VS. CASE NO. CC-80-097 FRANKLIN COUNTY, ALABAMA
HAROLD EDWARD PINKARD ESCAPE 1ST. DEGREE
“On the 25th day of September, 1980, comes the State of Alabama by its District Attorney, Honorable John Jolly, also comes the defendant Harold Edward Pin-kard, in his own proper person and the defendant being before the Court and having made known to the Court that he is financially unable to employ counsel to represent him in this case, the Court hereby appoints Honorable Barry Man-sell, an experienced and competent attorney practicing at the bar of Franklin County, Alabama to represent and defend said defendant in this case, and after talking with his attorney the defendant waives the reading of the indictment and pleads not guilty.
“Thereupon, on the 6th day of October, 1980, comes a jury of good and lawful persons, to-wit: Stephen Ricky Bingham, and eleven others who, being duly empan-elled sworn and charged by the Court according to law, before whom the trial of this cause was entered upon and continued from day to day, said defendant Harold Edward Pinkard and his attorney, Honorable Barry Mansell, being in open Court at each and every stage and during all the proceedings in this cause, now on this 6th day of October, 1980, said jurors upon their oaths do say: ‘We the jury find the defendant Harold Edward Pin-kard guilty, Stephen Ricky Bingham, Foreman.’ Sentencing is passed to 11-10-80.
“On this November 20, 1980, the defendant, Harold Edward Pinkard, and his attorney, Honorable Barry Mansell, being in open Court and the defendant, Harold Edward Pinkard, being asked by the Court if he has anything to say why the judgment and sentence of the law should not be pronounced upon him says nothing in bar or preclusion of sentence. And the Court after hearing testimony of defendant’s previous felony convictions, and reviewing pre-sentence report, adjudges the defendant Harold Edward Pinkard guilty in accordance with the verdict of the jury. It is therefore, considered by the Court and it is the judgment and sentence of the Court that the defendant, Harold Edward Pinkard, be imprisoned in the Penitentiary of the State of Alabama for a period of life, as punishment for his crime.
“12-5-80, Motion for a new trial filed. “12-17-80, Motion for a new trial is set for 1-30-81.
“1-30-81, Motion for a new trial overruled.
“Thereupon on the 20th day of February, 1981, notice of appeal is entered.
“On the 26th day of February, 1981, in open Court on this day, the Court grants the defendant a free transcript and appoints Barry Mansell to represent the defendant on appeal.”

The Alabama Court of Appeals dealt with a document that was almost identical in form as the present document and like the present entry was not signed by the presiding trial judge. The Court established that the document constituted a valid judgment entry. The Court then stated, “That the judge did not sign the judgment is not error.” Duck v. State, 92 So.2d 55, 38 Ala.App. 652 (1957). The document was a valid judgment entry, and the proper method of proving a prior conviction is by judgment entry. McGhee v. State, Ala.Cr. App., 333 So.2d 865 (1976), and cases cited therein.

The appellant also contends that there is no evidence showing that the appellant was being held in lawful custody for the conviction of the prior larceny conviction. The larceny conviction judgment entry that was introduced as State’s Exhibit One stated that the defendant was sentenced to six years imprisonment on November 27, 1979. The record establishes evidence that the appellant was in custody on August 4, 1980, the date of the escape. Appellant offered no evidence rebutting the reasonable inference drawn from the state’s evidence that the appellant was in custody on August 4, serving out his term for the grand larceny six-year sentence.

Appellant also contends that the trial court violated the best evidence rule in allowing a copy of the judgment entry admitted and not the original. The appellant admits in his brief that the copy was authenticated. The record establishes that the Circuit Court Clerk, the official custodian of such court records, had been in charge of the entry. The Circuit Clerk also testified that the copy introduced was a certified copy of the judgment entry in that case. The entry itself is certified as being a true copy of the original. This court held in McGhee, supra, that “the proper method of proving a prior conviction is by a judgment entry or a certified copy of the court record showing a judgment entry of the prior conviction. [cases cited]” (Emphasis added.)

Finally, the appellant contends that the trial court committed reversible error by misstating the law concerning first degree escape. This court cannot review appellant’s claim. The record shows that the appellant did not object to the trial court’s alleged misstatements. He only objected to the trial court’s refusal to use appellant’s written instructions concerning second and third degree escape. The law is well settled in Alabama that when a defendant makes no exceptions or objections to the oral charge, this court cannot review the issue of asserted jury instructions. Storie v. State, Ala.Cr.App., 390 So.2d 1179, [cases cited therein], writ denied Ex parte Storie, Ala., 390 So.2d 1184 (1980).

Although appellant did not raise the issue on appeal, he objected to the trial court’s rather sketchy oral charge concerning appellant’s affirmative defenses such as entrapment and duress. Even though the oral charge on these defenses is possibly less than adequate, the objection was not preserved for review. The trial court never ruled on the objection. The law in Alabama is well settled that a preliminary requirement in preserving appellate review of a motion or objection consists of an objection and an adverse ruling. Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied Ex parte Van Antwerp, Ala., 358 So.2d 791 (1978). The objection was also made outside of the hearing of the jury. The law is well settled that an objection to an oral charge must be made in the presence of the jury and before they begin their deliberations. Hand v. State, Ala.Cr.App., 385 So.2d 652 (1980).

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

AFFIRMED.

All the Judges concur.