author: TYSON, Judge. BOOKOUT, Judge,

text:
    Gary WASHINGTON and William Baldwin v. STATE of Alabama.
    5 Div. 594.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    John R. Formby, Jr., Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

On May 5, 1981, Gary Washington and William Baldwin filed a joint “Petition for Writ of Habeas Corpus” to challenge the action of the Alabama Board of Corrections Disciplinary Court which eliminated two years of accrued “good time” from the records of both appellants due to an incident which occurred on February 16, 1981. The “Petition” (R. 2-17) was supported with a detailed summary of the appellants’ contentions and an argument for the relief sought. The State filed a “Motion to Deny Petition for Writ of Habeas Corpus” (R. 39) based on the conclusory grounds that “all of the procedural due process requirements of a disciplinary hearing were met” and that “the Petitioners were not twice put in jeopardy.” For aught that appears in the record the. State did not file any information in support of its “Motion”. Nevertheless, the trial court, by its order of May 18, 1981, dismissed the appellants’ “Petition” without a hearing.

From this order the appellants prosecute this appeal, contending that they are, at least, entitled to an evidentiary hearing to challenge the action of the “Disciplinary Court.”

Before ruling on the issue involved here, a brief summary of the facts leading up to the appellants’ Habeas Corpus Petition is warranted.

On February 16,1981, the appellants, who were participants in the “Incentive Good Time” (IGT) program and who were assigned to the Montgomery Work Release Center, signed out at approximately 5:00 a. m. for their work release job in Montgomery. At 8:15 a. m. they were reported absent from their jobs. Consequently, escape charges were filed against them at 9:15 a. m. on this date.

Both of them reported back to the work release center shortly after 11:00 a. m. on this date, at which time the escape charges were dropped.

As a result of this incident disciplinary proceedings were initiated against the appellants. They were initially charged with the violation of Rule 18 of the Inmate Rules and Information Handbook for Community Based Residents on the grounds that they were “absent from an assigned work area.” According to the appellants a complete “disciplinary hearing” was conducted on these charges at the conclusion of which the disciplinary board found appellants guilty and recommended a loss of eight months “good time” for each man.

Later that day this initial disciplinary action was nol prossed by W. C. Berry, the director of the Montgomery Work Release Center, and a second “disciplinary hearing” was conducted based on charges of escape in violation of Rule IB of the Inmate Rules and Information Handbook. Pursuant to this second hearing, the appellants lost two years of “good time” credit. (According to W. C. Berry the first hearing was nol prossed before completion, thus allowing for the institution of the second action.)

Appellants complain in their Habeas Corpus Petition that they were twice tried for the same incident. They do not deny being absent from their assigned work areas for six hours on February 16,1981, but do deny that said absence constituted an “escape” attempt. They point out that appellant Washington’s IGT release date was September, 1981, and that appellant Baldwin’s IGT release date was October, 1982. They argue that with release dates such a short time away they would not have attempted an escape.

I

The problem confronting this court on this appeal is that the record does not contain sufficient information for a thorough review of the trial court’s denial of the appellants’ Habeas Corpus Petition. Nearly all of the evidence we have of the disciplinary proceedings and the underlying incident comes from a detailed facts summary and an argument submitted by the appellants in support of their “Petition.” The copies of the “Notice of Disciplinary Board Hearing” forms served on the appellants and the copies of certain memoranda regarding the disciplinary hearings (R. 24-37) are sketchy at best and provide little additional information.

The critical omission in the record before us is a “written statement reflecting the reasons and the conclusions” upon which the disciplinary board based its findings. There is an indication that such a statement existed because on the completed form summarizing one of the disciplinary hearings (R. 34) reference was made to an “attached synopsis.” However, there is no “attached synopsis” in our record.

Furthermore, there was no answer or return from the State in connection with the appellants’ Habeas Corpus Petition. Therefore, there was nothing to refute the facts as they were related by the appellants in said “Petition”.

For these reasons we are unable to determine whether or not the trial court’s dismissal of the appellants’ “Petition” was proper. Therefore, we must remand this case to the trial court. This decision is based upon the principles set out herein.

The correct method for challenging the decision of a state disciplinary board is by petitioning the appropriate circuit court for a “Writ of Habeas Corpus.” Williams v. Davis, 386 So.2d 415 (Ala.1980). To comport with “due process” the board’s decision must not have been made arbitrarily or capriciously but should have been based upon “substantial evidence.” Aikens v. Lash, 514 F.2d 55, 60 (7th Cir. 1975), vacated and remanded on other grounds, 425 U.S. 947, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976), reinstated as modified, 547 F.2d 372 (7th Cir. 1976); Chavis v. Rowe, 643 F.2d 1281 (7th Cir. 1981). In order to determine whether or not the board’s decision was indeed based upon “substantial evidence”, the trial court (as well as other reviewing courts) should have a “written statement by the factfinders [the disciplinary board] as to the evidence relied on and reasons” for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Aikens v. Lash, supra. Moreover, in the words of the Supreme Court in Wolff v. McDonnell, supra:

“. . . a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly. Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others.”

This requirement of a “written statement by the factfinders” was also approved in a recent Alabama case which dealt, specifically, with the deprivation of “good time”. Williams v. Davis, supra. The board should file a return in circuit court and include this information in same.

The record before us does not contain the required statement by the disciplinary board. Since the record is, thus, insufficient to allow a proper determination of the merits of the appellants’ “habeas corpus” claims, an evidentiary hearing by the trial court is warranted to develop those omitted facts. Burden v. State, 584 F.2d 100 (5th Cir. 1978); and cases therein cited.

Therefore, the trial court’s judgment dismissing the appellants’ “Petition” is hereby set aside and vacated and this cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur, except BOOK-OUT, J., who dissents with opinion.

BOOKOUT, Judge,

dissenting:

I do not believe the trial judge erred in dismissing the instant petition for writ of habeas corpus without a hearing on May 18, 1981. On that date the trial judge had before him a petition which, on its face, would not support the issuance of the writ and the discharge of the petitioners whether or not a hearing was held. The petition states inter alia:

“Petitioner Gary Washington’s IGT release date was September of 1981, before his disciplinary, and petitioner William Baldwin’s IGT release date was October of 1982, before his disciplinary infrac-tion_”

Likewise, the petition alleges on its face that Baldwin is presently serving a forty-year sentence for second degree murder imposed “on or about August 1, 1975,” and that Washington is serving a fifteen-year sentence for forgery, burglary and grand larceny imposed “on or about December 19, 1977.” Therefore, the petition shows on its face that neither of the appellants was unlawfully restrained of their freedom at the time the trial judge ruled on the petition.

I recognize what is said in Williams v. Davis, supra, relied upon by the majority. It is true that our supreme court in that case held that denial of a petitioner’s “good time” credits could be reviewed by way of habeas corpus and that certain due process requirements must be met in disciplinary proceedings. In that case the trial judge dismissed the petition for writ of habeas corpus on December 17,1979, after the petitioner Williams’s predisciplinary good time release date of August 19, 1979. However, co-petitioner Johnny Null had a prospective release date of June 11, 1980.

In Williams, supra, our supreme court, in affirming a part of the judgment which dismissed a § 1983 civil rights action, quoted from Preiser v. Rodriguez, 411 U.S. 475 at 487, 93 S.Ct. 1827 at 1835, 36 L.Ed.2d 439 (1973). In the Preiser case the United States Supreme Court stated that “recent cases have established that habeas corpus relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases.”

The above quotation is not cited by our supreme court as authority for issuance of the writ of habeas corpus, but is cited in that section of its opinion dealing with the § 1983 civil rights action. I am uncertain whether or not the panel of our supreme court which released the Williams opinion adopted the federal position as the new rule in Alabama for habeas corpus proceedings. If that is the court’s unequivocal decision, it is not clear in Williams and would certainly be a 180° change of direction on this issue. The federal courts have used the writ of habeas corpus over the years for a number of purposes which most of the states have not recognized.

I do not believe Williams directly addresses the instant issue and, therefore, I would hope that this issue would be settled conclusively by our supreme court on certiorari in the instant case, if the State has not already waived that writ by failing to file a brief at this stage of the proceedings. It appears that Williams indirectly (as applied to co-petitioner Null’s situation) does conflict with the long-established rule in this state that habeas corpus does not lie to challenge prospective detention. Magee v. State, 42 Ala.App. 71, 152 So.2d 443 (1963); Phillips v. State, 40 Ala.App. 698, 122 So.2d 551 (1960). To my knowledge it has always been the law in this state that a petition for writ of habeas corpus must show that the petitioner is presently restrained of his liberty illegally and is due immediate release on issuance of the writ. Ex parte Miller, 54 Ala.App. 590, 310 So.2d 890 (1975); Tunstill v. State, 41 Ala.App. 516, 138 So.2d 267 (1962).

Because the federal district courts use the writ of habeas corpus for a variety of purposes does not mean that this state must also accept such uses, even though the United States Supreme Court approves of such uses in the federal system. I do not understand Williams v. Davis, supra, as holding that Preiser, supra, applies to habeas corpus proceedings in a state court or that our supreme court has specifically adopted Preiser as the new law in this state. If our supreme court is going to require the circuit courts to review all prison disciplinary proceedings by way of habeas corpus, even though the petitioners are not due for release and are serving valid sentences when the petition is filed, that mandate should be spelled out more clearly than it is in Williams v. Davis, supra. I therefore respectfully dissent.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Ronald E. CAMPBELL v. The CITY OF BIRMINGHAM.
    6 Div. 390.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      James L. O’Kelley, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., for appellee.
   BOWEN, Judge.

The defendant was found guilty in Birmingham Municipal Court of the offenses of resisting arrest and riot. Appeal was taken on both counts to the Circuit Court of Jefferson County. The jury returned a verdict of guilty on both counts and the defendant was fined $500.00 on the resisting arrest charge and sentenced to perform hard labor for sixty (60) days on the riot charge. Because the defendant failed to pay the fine of $500.00, additional punishment was set at 120 days hard labor. The defendant was declared indigent and appointed counsel for this appeal.

On March 6, 1980, the defendant and at least six other members of the “May Day Committee” went to the cafeteria at the University of Alabama in Birmingham Hospital. At this time about 700 hospital employees and doctors were eating lunch. The defendant and one of his companions, Ms. Jue, held a large banner proclaiming the coming of May Day. Together they shouted their views against “imperialism” and about the “oppression of the working man.” The other five members of the committee solicited money and handed out pamphlets. The group had not obtained permission to conduct any type of demonstration.

University Police Officer Bradford was called to the lunchroom and, when he arrived, he asked defendant and Ms. Jue to refrain from their loud and boisterous conduct and leave the premises. They refused and continued to talk. The officer then attempted to place the defendant under arrest. As Officer Bradford was trying to handcuff the defendant, the defendant turned around and pulled away, yelling, “Here comes the goon squad” and “goddamn pigs”. A scuffle ensued and another member of the group, Ernest Brown, struck Officer Bradford several times. There was evidence that four members of the group were “just milling around at this time in another portion of the cafeteria.” Other officers who had arrived on the scene subdued Ms. Jue, Mr. Brown and the defendant and removed them from the cafeteria. A crowd of employees had gathered and were watching the commotion. It was testified that many of the employees clapped when those arrested were carried off. All seven members of the group were arrested.

This is a case of first impression. A search reveals no case law in Alabama interpreting the riot statute.

I

The defendant argues that the evidence does not sustain his conviction for riot. Section 13A-11-3, Alabama Code 1975 (Amended 1977) defines the offense of riot:

“A person commits the crime of riot if, with five or more other persons, he wrongfully engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of public terror or alarm.”

Therefore, to support a conviction of riot the prosecution has the burden of proving:

(1) The defendant acted with five or more other persons.
(2) He wrongfully engaged in tumultuous and violent conduct.
(3)The defendant’s conduct either intentionally or recklessly caused or created a grave risk of public terror or alarm.

In arguing that the prosecution did not prove the elements of riot, the defendant places great significance upon the fact that there was no violent conduct on anyone’s part before the police arrived. This reliance is misplaced and without legal significance.

The evidence shows and it cannot reasonably be disputed that the defendant engaged in no “tumultuous and violent conduct” until after the initiation of his confrontation with Officer Bradford.

“The phrase ‘tumultuous and violent conduct’, however, in itself clearly means much more than mere loud noise or disturbance. It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts.” Commentary to New York Revised Penal Law, Section 240.05.

The phrase “tumultuous behavior” requires more than mere “aggressive solicitation”. State v. Anonymous, 33 Conn.Sup. 93, 363 A.2d 772, 774 (1976).

While the conduct of the defendant and his companions may have been distracting, annoying, loud and even profane and obscene, it did not constitute “tumultuous and violent conduct” prior to the arrival of the police.

However, once the police arrived, the character and complexion of the demonstrators’ conduct changed. The defendant forcibly resisted arrest and was aided in his resistance by Ms. Jue and Mr. Brown. Brown managed to get Officer Bradford’s pistol and attempted to fire it. Blows were struck against the police and those occupants of the cafeteria who had come to aid the officers. Tables and chairs were overturned during the “scuffle”. There was testimony that people throughout the cafeteria were yelling, screaming, and running back and forth. People were also standing on tables.

The extent and degree of the disorder resulting from the conduct of the defendant in resisting arrest are not clear. One witness described the scene as “chaotic”. Another testified that the “scuffle” or “tussle” between Officer Bradford and the defendant was “not that major.” There was also evidence that there was only a “fairly small amount” of shouting from the crowd.

However, it is clear from the record that the conduct of the defendant and that of his two companions in forcibly resisting arrest constituted “tumultuous and violent conduct.” Their conduct had passed beyond the state of aggressive and irritating solicitation to that of forceful and violent resistance to lawful authority.

Although the other demonstrators did not resist arrest, Officer Charles E. Reedy testified that, while the defendant was resisting, there were “comments from the back (of the cafeteria where these other demonstrators were located) proclaiming May Day, wanting the people in the crowd to come up and help them.” There was additional testimony that “there were several comments made coming from the crowd .... Some were referring to get them out of here, and some were referring to leave them alone.” The commentators could not be identified.

Officer Bradford testified that “two or three (of the people in the cafeteria) had been involved in making comments against the police and toward the defendants.” He also stated that “some of the people that they (the defendants) had exhorted had come to their cause.”

After the defendant had been subdued and removed from the cafeteria, several officers returned and found three white females, Rene Romonoff, Eugene Hicks, and Myra Delay, in the back of the cafeteria chanting “free the hospital slaves” and trying to hand out their material.

“(A) riot may be committed, often in combination with another offense .... Intimidating or resisting civil officers may constitute a riot . .. . ” 77 C.J.S. Riot, Section 3 (1952). See also State v. Winkels, 204 Minn. 466, 283 N.W. 763 (1939); State v. Seeley, 51 Or. 131, 94 P. 37 (1908). While our statute does not require “an unlawful assembly” as an essential element of riot, as required under common law, 54 Am.Jur.2d Mobs and Riots, Section 15 (1971), it is well settled that:

“An assembly may, at its commencement and for some time thereafter be perfectly lawful, yet subsequently become unlawful, or even riotous, due to its actual conduct, or to a concerted intention to break the peace. When an assembly, however lawful it may have been previously, begins to riot it is no longer lawful but becomes an unlawful assembly.”
W. Burdick, 3 The Law of Crime, Section 758 (1946).

The facts of this case establish that the defendant “wrongfully engage(d) in tumultuous and violent conduct” in resisting arrest. Thus one essential element of the statutory crime of riot is established.

II

The defendant argues that there is no evidence that he engaged in the tumultuous and violent conduct with five or more other persons. The defendant and seven other members of the “May Day” Committee entered the cafeteria with a common purpose. From the evidence it may be inferred that this purpose, at least originally, was to proclaim the views of the committee and solicit support and money for their cause. However, once the police attempted to arrest the defendant, the purpose shifted to assisting the defendant resist arrest. That this was the objective and purpose of Ernest Brown and Ms. Jue cannot even be disputed for they actively and physically aided the defendant in resisting arrest. That others present in the cafeteria vocally supported the defendant is equally as clear. Officer Bradford testified that “two or three (of the occupants of the cafeteria) had been involved in making comments against the police and toward the defendants” during the time the police were attempting to subdue and arrest the defendant. Bradford also stated that some of the people the defendant had exhorted had come to their cause. It is reasonable to conclude from this that occupants of the cafeteria, other than the members of the original group, were lending verbal support to the defendant in his struggle to overcome the police. In determining the sufficiency of the evidence, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. The evidence must be considered in the light most favorable to the prosecution. Johnson v. State, 378 So.2d 1164 (Ala.Cr. App.), cert. quashed, Ex parte Johnson, 378 So.2d 1173 (Ala.1979).

If the jury believed that at least three others, besides Ms. Jue and Ernest Brown, were verbally encouraging the defendant, this would satisfy the statutory requirement of “five or more other persons.”

“Any person who encourages, incites, promotes, or takes part in a riot is guilty of riot as a principal.” 54 Am.Jur.2d Mobs and Riots, Section 20. “If persons are present in order to lend the courage of their presence to the rioters, or to assist, if necessary, they may be equally guilty with the principals.” 77 C.J.S. Riots, Section 17.

The quality and quantity of participation required are explained in 3 Burdick, Section 759.

“Although a riot cannot be committed by one person alone, or, at common law, by two persons, yet three or more persons may be rioters without doing the same act, and, it is not necessary that all should physically participate in the actual violence. The riotous act or acts may be done by only one of them, yet if the others aid, encourage, or promote his act by words, signs, or gestures, they are principals equally with him. If three or more persons are engaged in executing a common purpose by means of force and violence, under circumstances which amount to a breach of the peace and alarming to the public, they are guilty of riot though the act of each is separate from that of the others. In other words, there must be a common purpose, but, not, necessarily, a common act. Some cases hold that there must be ‘concerted action’ in riot. But concerted action, or acting conjointly in execution of a common purpose or plan, is not synonymous with identical action.
“Mere presence does not make one a participant in a riot but if one does something which incites, encourages, or assists in the actual perpetration of the crime, he is an aider and abettor. However, as Wharton, quoting the words of Judge Daly, says: ‘Even well-disposed citizens are attracted by excitement * * * and a distinction must be carefully drawn between those who were mere lookers-on and those who were stimulating and encouraging the riot.’ ”

The commentary to Section 13A-11-3 supports the finding that those who vocally supported the defendant were equally guilty of riot.

“One may engage in violent and tumultuous conduct by knowingly and intentionally aiding or encouraging it ‘by acts, gestures or words.’ Any conduct which tends to enlarge and perpetrate the atmosphere of violence and tumult, if done intentionally or recklessly, falls within the purview of the section since riot ‘is a phenomenon which feeds on itself and for which the cooling influence is the cessation of activity which tempts others to swell to the throng and to engage in similar acts.’ United States v. Matthews, supra (419 F.2d 1177 (D.C.Cir.1969)). Therefore one who considers he is merely an innocent bystander ‘enjoying the show’ falls within the statute if he intentionally refuses or fails to disperse from the disturbance upon lawful order of the police or other legally constituted officials. His physical presence may add fire to the fuel just as one who ‘eggs’ another on, even though he is not actually participating in an overt act of violence.”

It is insignificant whether or not those verbally supporting the defendant were members of the May Day Committee who entered the cafeteria. Even if these supporters were employees of the University, rightfully and lawfully in the cafeteria, they became participants in the riot by encouraging the defendant’s tumultuous and violent conduct.

Ill

The defendant argues that the patrons of the cafeteria viewed the defendant and his companions as nothing more than a curiosity. This is contrary to Officer Bradford’s testimony.

“Q. Before there was contact between you and Mr. Campbell, did there appear to be a public terror or alarm there among the people around him?
“A. Very possibly.
“Q. Not possibly. Was there? Did you observe, what appeared to be terror in the people around him, public alarm or not?
“A. Are you asking me if I saw terror in a number of people’s faces, yes.
“Q. Right around him?
“A. Yes.
“Q. What was he doing that was creating terror in those people there in that cafeteria on that occasion, what was Mr. Campbell doing?
“A. Apparently—
“Q. No apparently. What did you see him doing?
“A. That’s what I saw.
“THE COURT: Just described it in detail.
“THE WITNESS: The looks that I received from a number of people there eating, including visitors, one particular lady was very alarmed and got up and ran to another area of the cafeteria.”

This testimony satisfies the statutory element of the crime of riot that the conduct of the accused “intentionally or recklessly causes or creates a grave risk of public terror or alarm.”

“To constitute a riot it is not necessary that there should be actual fright to the public generally. It is enough if the action of the parties implicated be so violent and tumultuous as to be likely to cause fright, and if individuals are frightened.” Salem Mfg. Co. v. First American Ins. Co., 111 F.2d 797, 803 (9 Cir. 1940).

Our statute only requires conduct which “intentionally or recklessly causes or creates a grave risk of public terror or alarm.” (Emphasis added) This is not the equivalent of conduct which actually causes or creates public terror or alarm. Under our statute only the “grave risk” of causing or creating such is enough. Even the ingredient of terror excited does not require that more than one person be alarmed. 77 C.J.S. Riot, Section 7. See also People v. O’Laughlin, 3 Utah 133, 1 P. 653 (1882).

“At common law, it is an essential element of riot that the common purpose is carried out in a violent and turbulent manner to the terror of the people. ‘It seems to be clearly agreed’, says Hawkins, ‘that in every riot there must be some such circumstances either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people.’ And Stephen says that a riot is an unlawful assembly executing its purpose ‘by a breach of the peace, and to the terror of the public.’ This does not mean however, that any large number of persons must be alarmed, for it is held that if the circumstances are calculated to cause fright it is sufficient if only a few persons, or even only one person is actually put in fear. Statutory definitions of riot may omit the element of terror or fear, merely providing that if a designated number of persons commit acts in a violent and tumultuous manner they shall be guilty of riot, and under such statutes it may not be necessary that a riotous act should be terrifying to the public or that anyone should be put in fear. Other statutes, however, may expressly define the violence to be such as creates public alarm or consternation, or terrifying or calculated to terrify people, or, at least, one person.” 3 Burdick, Section 764.

Here the State not only proved the grave risk of public terror or alarm but, through Officer Bradford’s testimony, proved that a number of people were terrified and that one lady was very alarmed.

IV

The trial judge charged the jury: “It does not matter how many people are terrified or alarmed, whether it be one or a hundred people, but that there was a grave risk and cause — or it either caused or there was a grave risk that it would cause or create a grave risk of terror or alarm.”

The giving of this charge was not error.

In holding that the terror inflicted by rioting inmates on the director of the department of corrections whom they held hostage satisfied the “public disturbance” requirements of the District of Columbia Riot Statute, the United States Court .of Appeals for the District of Columbia held:

“MOREOVER, ‘(t)he ingredient of terror excited does not require that more than one person be alarmed.’ To this end Wharton states:
“If the nature of the defendants’ conduct is calculated to induce fear or terror, the offense is riot even though only a few or merely one person was in fact terrified.”

“2 F. Wharton, Criminal Law and Criminal Procedure, Section 865 at 732 (R. Anderson ed. 1957). See also State v. Acra, 2 Ind.App. 384, 28 N.E. 570 (1891); People v. O’Laughlin, 3 Utah 133, 1 P. 653, 659 (1882), citing Bishops, Criminal Law, Section 1148; State v. Powell, 70 N.C. 67 (1874); Darst v. People, 51 Ill. 286, 2 Am.Rep. 301 (1869); State v. Boies, 34 Me. 235 (1852); 77 C.J.S. Riot at 427 (1952).”

Our review convinces us that the defendant’s conduct constituted riot. Though not as violent as it might have been, it clearly constituted that type of “mindless, insensate violence and destruction unredeemed by any social value and serving no legitimate need for political expression” characterized in United States v. Matthews, 419 F.2d 1177, 1182 (D.C.Cir.1969).

We have searched the record and found no preserved error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Jeremiah JAMES v. STATE.
    6 Div. 529.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      Jan M. Eberhardt and James G. Stevens, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain, James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Section 13A-8-41, Alabama Code 1975 (Amended 1977). Sentence was life imprisonment without parole under the Habitual Felony Offender Act.

I

The defendant maintains that his motion to exclude the State’s evidence should have been granted because the State failed to prove that the defendant was armed with a pistol as charged in the indictment in that the victim never actually saw the weapon.

The indictment charged that the defendant committed the crime of robbery while “armed with a deadly weapon, a pistol.” The evidence reveals that, while no weapon was actually displayed, the defendant, by placing his hand inside his coat pocket, gave the victim the impression that he was armed with a pistol. While it is without dispute that no one at any time actually observed the defendant with a pistol, it is equally without dispute that the victim thought he had one. The victim’s testimony on this point is best summarized in the following portion of the record.

“Q. Okay. When he pointed his hand at you like that (indicating), were you afraid?
“A. When he pointed his hand?
“Q. No, you said that he had_
“A. He didn’t point his hand; he had a gun.
“Q. Did you see the gun?
“A. I saw he had the gun in his pocket. “Q. Did you see the gun?
“A. Did I actually see the gun? I saw that he had a gun in his pocket.
“Q. Well ...
“A. There’s your answer.
“Q. What kind of gun was it?
“A. How could I see it when it was in his pocket?
“I mean, I didn’t see it. It was in his pocket.
“Q. So, you didn’t see the gun?
“A. I saw it was in his pocket.
“Q. What kind of gun was it?
“A. It was in his pocket.
“Q. You thought he had a gun?
“A. No, I saw he had a gun. I saw that he had a gun in his pocket.”
******
“Q. Did you see the gun?
“A. I did not actually see the gun.
“Q. All right. So, you don’t know whether he had a gun, then, or not, do you?
“A. Let me tell you_
“Q. Yes, or not? Please. You don’t know whether he had a gun, or not, do you?
“A. He had the gun.
“Q. Did you see the gun?
“A. I didn’t see it, but he had it.
“Q. You thought he had a gun.
“A. He
“Q. That’s all I’m asking you, Miss White.
“You thought he had a gun. You didn’t see a gun, did you?
“A. That’s all that matters.”

The relevant portions of Section 13A-8-41, Alabama Code 1975 (Amended 1977), defining robbery in the first degree, provide:

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; ...”
******
“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.”

The comments to Section 13A-8-44 are helpful in deciding the issue under review.

“A difficult area is robbery by use of an unloaded, inoperable or dummy weapon. The basic theory of this article is to protect the citizen from fear for his or another’s health and safety. This should be aggravated only when there is actual serious physical injury inflicted or when the robber possesses an instrument which is readily capable of inflicting such injuries. However, it is sometimes difficult to prove that defendant actually was armed with a dangerous weapon, unless he is apprehended at the scene. In an effort to balance the needs for enforcement with the demands for appropriate penalties, Section 13A-8-41 makes possession of an object reasonably believed to be a ‘deadly weapon’ or ‘dangerous instrument’, as defined in Section 13A-1-2, or a representation by the defendant that he has one, prima facie evidence that he is armed. If in fact the defendant refutes this, he may still be convicted of robbery in a lesser degree.”

A conviction of first degree robbery does not require evidence that the accused brandished or displayed any weapon. Indeed, in order to be convicted of first degree robbery an accused need not even be armed with a deadly weapon or dangerous instrument where (1) he possesses any object reasonably believed to be a deadly weapon or dangerous instrument or represents in some manner that he has one and (2) there is no evidence to rebut or refute this reasonable belief or representation. To find as a matter of law that where a gun is not seen a defendant cannot be convicted of first degree robbery would allow all would-be robbers to keep a gun or other dangerous weapon concealed during the crime to be used only if needed. State v. Cooper, 140 N.J.Super. 28, 354 A.2d 713 (1976). Under our statute, such an interpretation would defeat the intent of the legislature and “basic theory” of the statute to “protect the citizen from fear for his or another’s health and safety.”

Here the defendant’s actions instilled in the victim the reasonable belief that he was armed with a pistol. Under Section 13A-8 — 41(b) this constituted prima facie evidence that the defendant was so armed. Since there was no evidence to rebut this presumption and as the State proved all the other elements of robbery in the first degree, the defendant’s conviction must stand.

II

The defendant argues that the Habitual Felony Offender Act, Section 13A-5-9, Alabama Code 1975 (Amended 1977), should be applied prospectively so as to punish only those repeat offenders who have committed and been convicted of all of their crimes after January 1,1980 — the effective date of Section 13A-5-9 and Alabama’s new criminal code. Section 13A-1-7.

Regardless of whether the term “retroactive” or “ex post facto” is employed, the argument advanced by the defendant is essentially the same as that presented and decided adversely to the defendant’s position in Smith v. State, 392 So.2d 1273 (Ala.Cr.App. 1980); Watson v. State, 392 So.2d 1274 (Ala.Cr.App. 1980), cert. denied, 392 So.2d 1280 (Ala. 1981); Wilson v. State, 371 So.2d 932 (Ala.Cr.App. 1978), affirmed, 371 So.2d 943 (Ala. 1979). The obvious intent of the legislature in enacting the Habitual Felony Offender Act was to authorize the infliction of a more severe penalty on one who is a persistent offender regardless of when the prior convictions occurred and even if they occurred before the enactment of the act. Wilson, 371 So.2d at 940; Watson, 392 So.2d at 1279.

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . “Prima facie evidence. Evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient. Prima facie evidence is evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence.”
      Black’s Law Dictionary, 1071 (5th ed. 1979).


author: DeCARLO, Judge.

text:
    Jimmy Lee WRIGHT, alias v. STATE.
    6 Div. 558.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    No brief filed for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Possession of burglary tools; three years.

During the months of January and March, 1980, burglaries occurred at the residences of John Thornton in Walker County, and William Love in the Forestdale area of Jefferson County. A total of $350,000 was taken from the safes in these two homes. During this period, deputies of the Jefferson County Sheriff’s Department received information from a confidential informant concerning these burglaries. As a result of this information, surveillance was conducted by the Jefferson County Sheriff’s Department.

On April 15, 1980, Sgt. Linn Moore saw the appellant drive away from the residence of Sam Tombrello in a black Cutlass. The appellant was accompanied by Dominick Locareo, Sam Tombrello, Jeff Adder and Richard Marazavitz. The five men proceeded north on Highway 78 West to the rear of Charles Hollis’ residence. Sgt. Moore observed the men carrying something into the residence.

After some fifteen minutes the appellant and another party left the house, the appellant entered the Cutlass automobile, and the other party entered a brown truck parked in the driveway. The appellant and the other party proceeded to drive down the driveway. At that time Sgt. Moore and other officers moved in and arrested the appellant and the man in the truck. The other three men were arrested in the basement of the residence and charged with burglary. During this time, Mr. Hollis and his wife were in the upper level of the house eating supper.

Sgt. Moore testified that the appellant has signed a consent form giving permission to search the Cutlass automobile. He also identified a rights waiver form in which the appellant acknowledged that he had been given his Miranda warnings.

During the trial, retired Sgt. Detective James W. Jones, Jr. was qualified as an expert in identifying tools used in safe burglaries. He stated that he had been a detective for thirty-one years, with eighteen years in the burglary detail, and had investigated between twelve hundred and fifteen hundred safe burglaries. Sgt. Jones identified the various tools which had been taken from the Cutlass automobile driven by the appellant, and entered into evidence as State’s Exhibits Nos. 9 through 15, as tools commonly used for breaking into a safe. Among those tools were one crow-bar, a sledge hammer with a sawed-off handle, long-handle sledge hammer, a small hammer, a pry-bar, a chisel, and a punch.

Frank Jones and H. M. Wade, Jr. of the Jefferson County Sheriff’s Department testified, over appellant’s objection, regarding the occurrence of prior safe burglaries with similar tools in the area.

I

Possession of burglary tools is defined in § 13A-7-8, Code of Alabama 1975, as follows:

“(a) A person commits the crime of possession of burglar’s tools if he:
“(1) Possesses any explosive, tool, instrument or other article adopted, designed or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking; and “(2) Intends to use the thing possessed in the commission of an offense of the nature described in subdivision (aXl) of this section.”

The evidence presented by the State was sufficient to connect the appellant with tools commonly used for safe burglaries. It was shown that the black Cutlass automobile where the tools were found belonged to the appellant and the appellant had executed a written consent to the search of the automobile.

The admission of the testimony by deputies Jones and Wade of prior safe burglaries involving similar tools in the vicinity of the Hollis residence was proper under the authority of Murray v. State, 43 Ala.App. 5, 178 So.2d 233 (1965). There the court stated:

“On a charge of possessing burglary tools, to show the felonious intent of the accused in having the tools in his possession, evidence that accused had just committed a burglary and was found in possession of the spoils, or that the articles found in accused’s possession were identical to those used in recent burglaries, has been held admissible. State v. Heflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301; Fuqua v. State, 246 Miss. 191, 145 So.2d 152.” [Emphasis added].

Therefore, the trial court was not in error in admitting this testimony tending to show the felonious intent of the appellant. See also § 13A-7-8 (Commentary), Alabama Code, supra.

It is well settled that the issue of intent is for the jury’s determination. Here, the appellant’s presence at the Hollis residence and his possession of the tools in question, Mains v. State, Ala.Cr.App., 375 So.2d 1299 (1979), were justifications for submitting the issue of felonious intent to the jury.

We have searched the record and have found no error prejudicial to the appellant. Hence, the judgment of conviction by the Jefferson Circuit court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Andre Bernard JOLLY v. STATE.
    6 Div. 586.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.

      David E. Hampe, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Sentence was ten years’ imprisonment. Two issues are presented on appeal.

I

The defendant contends that the trial judge violated Section 12-16-9(b), Alabama Code 1975, by asking the defendant in the hearing of the jury whether he would consent to a separation of the jury pending the trial. No objection was made at trial and this issue is raised for the first time on appeal. Consequently, nothing has been preserved for review. Fuller v. State, 365 So.2d 1010 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1013 (Ala.1979).

Additionally, the record does not affirmatively show that the matter of the separation was in fact mentioned before the jury. Where the record on appeal is silent, it will be presumed that what ought to have been done was not only done, but was rightly done. Robertson v. State, 29 Ala.App. 399, 197 So. 73, cert. denied, 240 Ala. 51, 197 So. 75 (1940).

Moreover, a supplemental record filed pursuant to Rule 10(f) A.R.A.P. reveals that the jury venire was not present when the trial judge obtained the defendant’s consent to the separation.

II

After the jury had begun its deliberation, it requested to see a photographic negative. The negative revealed that the automobile used by the robbers had a tag on the front bearing the name “ANDRE”. During the trial, the actual negative was not admitted into evidence. The trial judge sustained defense counsel’s objection that the negative was “illegible” without examining the negative. Later, after the jury requested the negative, the trial judge examined the negative and

“determined there was no sound reason for that negative never to be admitted into evidence when there was oral testimony about everything about the negative. The police officer’s testimony as to what the tag said, he testified in the record extensively about that tag which the record will indicate.”

The rule is that it is error to reopen the case to allow either party to supply additional evidence after the case has been submitted to the jury. Harris v. State, 371 So.2d 979 (Ala.Cr.App.), cert. denied, 371 So.2d 984 (Ala.1979). Section 15-14-4, Code of Alabama 1975.

Technically, the trial judge should not have allowed the photographic negative to be inspected by the jury because during the trial of the cause he had sustained defense counsel’s objection to its admission. However, technical errors, not affecting the substantial rights of the defendant, must be disregarded and cannot form the basis on which to reverse a conviction. Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956); Carlisle v. State, 371 So.2d 975 (Ala.Cr.App. 1979).

Where real or demonstrative evidence has not been formally introduced in evidence, the fact that it has been used in connection with the giving of testimony makes it evidence in the case and proper to go before the jury in its deliberations. Smith v. State, 344 So.2d 1239, 1241 (Ala.Cr. App.), cert. denied, Ex parte Smith, 344 So.2d 1243 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence, Section 123.01(6) (3rd ed. 1977).

The negative conveyed no information that had not been emphatically conveyed to the jury during the trial. The officer’s testimony on what the negative depicted was clear and unequivocal. Under these circumstances, we fail to see how the admission and viewing of the negative prejudiced the defendant. Merriweather v. State, 364 So.2d 374 (Ala.Cr.App.), cert. denied, Ex parte Merriweather, 364 So.2d 377 (Ala.1978).

We have searched the record and found no error which is prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ralph Edward McKINNON v. STATE.
    7 Div. 793.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Daniel W. Wainscott, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Escape in the first degree; fifteen years.

Appellant was indicted on July 29, 1980, and at arraignment on August 11, 1980, he entered a plea of not guilty. On August 20, 1980, the date set for trial, appellant requested leave to add a plea of not guilty by reason of insanity. He also requested a continuance for a psychiatric evaluation in order to formulate an insanity defense. The trial court allowed the amended plea but denied the motion for continuance and the case proceeded to trial.

The State’s evidence proved that on May 1, 1980, appellant was convicted of robbery and later sentenced to forty years for that offense. He began serving his sentence at the Talladega County jail but, around noon on June 21, 1980, he was discovered missing from his cell. He was apprehended later that afternoon walking on Interstate 20 and was returned to the custody of the Tallade-ga County Sheriff.

Appellant testified in his own behalf that he had been released from his cell to make a telephone call to his brother. He stated that when he was unable to reach his brother by telephone he “walked out” of the jail. Appellant testified that he had been “down” after his conviction and sentence for robbery, that he was suffering from “bad, real bad” depression, and that he had been “harassed” by jail inmates and guards. When asked by the district attorney whether he knew what he was doing when he walked out of the jail, he replied, “I really don’t think I did, Mr. Rumsey.”

At the conclusion of the court’s oral charge to the jury, the following occurred:

“[THE COURT] Are you satisfied, for the State?
“MR. RUMSEY: Satisfied, your Honor.
“THE COURT: Are you satisfied for the Defendant?
“MR. WAINSCOTT: We would except outside the presence of the jury.
“THE COURT: Pardon?
“MR. WAINSCOTT: Could we approach the bench?
“BY THE COURT: (To the Court Reporter out of the hearing of the jury: Give him an exception to my failure to charge on insanity.
“THE COURT: Alright, members of the jury, you may retire and make up your verdict. We will send out the two possible verdict forms for your convenience. “(THE JURY RETIRED TO THE JURY ROOM TO MAKE UP ITS VERDICT) “(THE BAILIFF INFORMED THE COURT THAT THE JURY HAD A QUESTION TO ASK THE COURT, WHICH QUESTION WAS WRITTEN IN LONGHAND BY A MEMBER OF THE JURY AND HANDED TO THE COURT, AS FOLLOWS:
“ ‘Are we the jury supposed to consider the factor of possible insanity of the defendant, or are we only supposed to consider the indictment as it is stated? Our jury verdict choices are only guilty or not guilty and does not mention not guilty by reason of insanity in any way.
/s/ Doyle Conville’
“IN OPEN COURT, IN THE PRESENCE OF THE DEFENDANT, COUNSEL AS BEFORE, THE JURY WAS BROUGHT INTO THE COURTROOM AND PLACED IN THE JURY BOX:) “BY THE COURT: Members of the jury, I have your question and I have considered it and I will just have to answer it this way. The effect of the Court’s oral charge to you was to rule that in the opinion of the Court, as a matter of law, there was insufficient evidence of insanity to submit that issue to you and the issue of insanity is not before you. Does that answer your question?
“JUROR: Yes, sir.
“(THE JURY RETURNED TO THE JURY ROOM TO CONTINUE ITS DELIBERATIONS.)
“MR. WAINSCOTT: Judge, we would like to except to the additional charge, the answer to the question that the Court gave, and at this point we would like to renew our exception and make a motion that the Court instruct the jury that there is a scintilla of evidence which would be a possible defense in the case. And we would further point out that the fact that jury brought forth such an issue after they had gone out to deliberate suports the scintilla of evidence rule that I would ask the Court to consider at this point.
“THE COURT: I’ll overrule to that.
“MR. WAINSCOTT: We except.”

I

Appellant claims that he did not have enough time prior to trial to prepare an insanity defense, and he contends that the trial court abused its discretion in not allowing a continuance.

In Dial v. State, Ala.Cr.App., 387 So.2d 871 (1979), reversed on other grounds, Ala., 387 So.2d 879 (1980), this court held that a six-week interval between arrest and trial was ample time to prepare a defense in a possession of marijuana case. In the case before us, almost two months elapsed between arrest and trial. In our judgment, preparation of a defense to an escape charge should be no more time consuming than one for drug possession, especially since the latter may often involve complicated questions of search and seizure not present in the former.

Appellant argues that an insanity defense is complicated and warrants additional preparation time. Addressing this argument in Hall v. State, 44 Ala.App. 406, 210 So.2d 852 (1968), the court stated the following:

“In Jarvis v. State, 220 Ala. 501, 126 So. 127, wherein a conviction of first degree murder was sustained, the court held that refusal of a continuance on ground that counsel had not had sufficient time (eight days) to ascertain facts as to insanity in defendant’s family was held not to constitute an abuse of discretion.”

In the present case, the judge noted that trial counsel had also represented appellant on the robbery charge in May of the same year, at which time there was no insanity defense presented. The court observed that counsel was familiar enough with appellant’s background to determine, prior to the date set for trial on the escape charge, whether an insanity defense was appropriate. Based on the foregoing facts and citations of authority, we find no abuse of discretion by the trial court in overruling appellant’s motion for a continuance.

II

Appellant also contends that the trial court erred in failing to charge the jury on the defense of insanity and in instructing the jury that, as a matter of law, appellant had presented insufficient evidence of insanity.

Because criminal defendants are presumed sane, insanity is an affirmative defense which must be clearly proved to the reasonable satisfaction of the jury. Ala. Code § 15-16-2 (1975); Weeks v. State, Ala.Cr.App., 342 So.2d 1335 (1975).

In a criminal prosecution, the question whether there is any evidence to substantiate a plea of insanity is one of law for the court. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Darrington v. State, Ala.Cr.App., 389 So.2d 189 (1980).

The legal test for insanity as a defense to a criminal charge is set out jn § 13A-3-1 of the Code of Alabama 1975, as follows:

“(a) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (b) ‘Mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” [Emphasis added]

Insanity which will excuse a crime, even under the new criminal code test, must be the result of a “mental disease or defect.” § 13A-3-1, supra. Emotional insanity or temporary mania, not associated with a disease of the mind, does not constitute insanity. Johnson v. State, 43 Ala.App. 224, 187 So.2d 281 (1966).

In the present case, there was no evidence that appellant suffered from a “mental disease or defect.” The fact that he might have been “down” or “depressed,” and that he “really [didn’t] think he knew what he was doing” is insufficient. See Gibson v. State, 49 Ala.App. 18, 268 So.2d 49 (1972). The following observation of Judge Harris, writing for the court in Gibson is apropos here:

“Under the special plea of not guilty by reason of insanity, appellant produced four fellow convicts from Holman prison. The substance of their testimony was that appellant had trouble sleeping, appeared to be nervous, would walk the floor and talk all night, would become angry without cause, seemed to keep a lot on his mind and was easily influenced into doing things. All of the above abnormalities, noted by the four convicts from Holman, if such they be, could result from confinement incident to prison life. Certain it is that they do not meet the legal test of insanity.”

In our judgment the trial court committed no error in his charge to the jury, or in his reply to their question, regarding the defense of insanity.

We have searched the record and have found no error; the judgment of conviction by the Talladega Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Nathaniel Lee MORRIS, alias v. STATE.
    8 Div. 507.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Richard A. Kempaner, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Murder; sentence: life imprisonment.

Late on the evening of August 20, 1980, Lawrence Grizzard was shot and killed outside of his Huntsville home. When the police arrived, appellant came out of the victim’s house onto the front porch with a pistol in his hand. The appellant held both of his hands over his head and said, “Here is the gun, I shot him.” Appellant was arrested and charged with murder (Code § 13A-6-2(a)(l)). '

Between 6:00 and 6:30 p. m., appellant went to Ditake’s Lounge after work. His sister, Hazel Morris, joined him at the lounge two hours later, and they both drank several beers. About midnight appellant called a taxi cab to drive them home. The taxi cab carried them to Lawrence Griz-zard’s house. Hazel Morris had been living with Grizzard for over a year. When they knocked on the front door, they got no answer so appellant went to the bedroom window where he knocked and asked Griz-zard to open the door. Appellant told the police that the victim responded, “Tell her to get the hell away from here and don’t come back.” Appellant and his sister returned to the waiting taxi cab and instructed the driver to carry them to Ms. Morris’s car at another lounge to get her keys.

They reached Ms. Morris’s car, and she drove her car back to Grizzard’s house alone. Appellant testified that he was “worried” about his sister so he had the taxi cab driver carry him back to Grizzard’s residence. When appellant and the taxi cab driver arrived there, the front door was partially opened and they could see Hazel Morris and Grizzard scuffling inside. Appellant leapt from the taxi cab, ran inside the house, and joined in the affray. He testified that his sister and the deceased were fighting over a pistol, and appellant wrestled the gun away from the victim and put it in his back pants pocket.

Appellant avers that as Grizzard started out of the front door he threatened, “You sorry son-of-a-bitch, I am going to kill you, both of you.” Grizzard walked to his car parked in the driveway and got in the driver’s seat. Ms. Morris and the appellant followed Grizzard outside, and the appellant claims that Hazel informed him that “he [Grizzard] has a gun in the car.” They both walked up to the driver’s side of the car where Grizzard was sitting. Appellant told the deceased, “Griz, I have got your gun.” Appellant testified that Grizzard then started to reach toward the glove compartment, and appellant shot him.

While admitting that he killed Grizzard, appellant entered a plea of not guilty. His defense pivoted on whether the shooting was justifiable self-defense or protection of a third person. The State presented testimony from the taxi cab driver who witnessed the entire incident and testimony from various investigating police officers. The defense offered character witnesses, and the appellant took the witness stand. Appellant insists that the trial court committed reversible error during the direct examination of the appellant when the objections of the district attorney were sustained to the following questions:

“Q. When you shot Lawrence Grizzard, did you believe he was about to shoot your sister?
“MR. GARDNER: I object to what he believed.
“MR. KEMPANER: Well, Your Honor, his mental intent at the time.
“THE COURT: I sustain it.
“Q. Were you afraid for yourself or for your sister?
“MR. GARDNER: I object to that.
“THE COURT: Well, I am going to sustain it.”

Appellant contends that his responses to the above questions were crucial in order for the jury to determine whether he reasonably believed that he had to shoot Griz-zard so as to protect his sister. Under the peculiar facts presented here, we find that the actions of the trial court constituted reversible error.

Every killing is unlawful unless expressly excused or justified by law. Kent v. State, 367 So.2d 508 (Ala.Cr.App.1978), cert. denied, 367 So.2d 518 (Ala.1979). When the State demonstrates that a homicide has occurred, the defendant must then prove circumstances in mitigation, excuse, or justification unless they are shown by the evidence produced against him. Flint v. State, 370 So.2d 332 (Ala.Cr.App.1979). These circumstances are to be ascertained by the jury. Oliver v. State, 17 Ala. 587 (1850); Chastain v. State, 36 Ala.App. 186, 54 So.2d 623, cert. denied, 256 Ala. 280, 54 So.2d 629 (1951).

Section 13A-3-23, 1975 Alabama Code (amended 1979) represents a major departure from the previous common law of justification in Alabama. Section 13A-3-23, Commentary, page 38. The statute provides in part:

“(a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. A person may use deadly physical force if the actor reasonably believes that such other person is:
“(1) Using or about to use unlawful deadly physical force.”

(Emphasis added.)

No longer must a defendant intervening in another person’s defense “stand in the shoes” of the person aided. The test “reasonably believes” shifts the emphasis to defendant’s reliance on reasonable appearances rather than exposing him to the peril of defending another where appearances were deceiving and there was no actual imminent danger. Section 13A-3-23, Commentary, page 38. If the circumstances presented here were such as to induce a reasonable belief that the victim was using or “about to use unlawful deadly force” on appellant’s sister, then the law would acquit the appellant of all guilt. However, if there was no reasonable ground for believing this, appellant could not be justified by law.

In Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), our supreme court adopted the contemporary rule that “a witness, on direct examination, may testify as to his intention, motive, or other physically unexpressed mental state, provided that the testimony is material to the issue of the case.” Later, in Mullins v. State, 359 So.2d 843, 848 (Ala.Cr.App.), cert. denied, 359 So.2d 849 (Ala.1978), we wrote that “[t]he materiality of the evidence offered by the holder of this uncommunicated intent is left within the discretion of the trial judge, and the admission or exclusion of such evidence shall not be reviewed upon appeal, except for an abuse of discretion.”

The Supreme Court of Alabama held in Walker v. State, 260 Ala. 451, 71 So.2d 47 (1954), that a defendant may testify that he was “scared,” finding that fear is not a mental operation. Likewise, this court has determined that a defendant may testify that he did not intend to kill his victim. Mullins, supra; Grimes v. State, 56 Ala. App. 439, 322 So.2d 729, cert. denied, 295 Ala. 403, 322 So.2d 733 (1975).

Since the test prescribed by § 13A-3-23 is what the defendant reasonably believed, the question of defendant’s belief at the time of the killing was a material issue before the jury. We find that Armstead v. State, 57 Ala.App. 459, 329 So.2d 150 (1976), cited in the State’s brief, has been made inapplicable by enactment of § 13A-3 — 23.

The appellant’s belief that the victim was about to use unlawful deadly force was the key issue raised by the defense at trial, there being no other area of genuine contest. By denying the appellant an opportunity to respond to those questions set out above, the trial court “pierced the heart of the only defense asserted by defendant, the only controverted issue in the case” Howard v. State, 390 So.2d 1070, 1075 (Ala.Cr.App.), cert. denied, 390 So.2d 1077 (1980). Therefore, we find an abuse of discretion when the trial judge sustained the prosecutor’s objections to these questions.

REVERSED AND REMANDED.

All the Judges concur.


author: BROOM, Justice,

text:
    Elbert E. SARTIN v. Levonia SARTIN.
    No. 52931.
    Supreme Court of Mississippi.
    Oct. 14, 1981.
    Farese, Farese & Farese, John Booth Farese, Ashland, for appellant.
    Cliff Finch & Associates, Batesville, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   BROOM, Justice,

for the Court.

Partition of land jointly owned by the litigants who were formerly married to each other was sought by the former husband, Elbert E. Sartin (Mr. Sartin herein) in the Chancery Court of the Second Judicial District of Yalobusha County, Mississippi. A demurrer to the bill for partition was filed by Mrs. Sartin. On appeal here, Mr. Sartin argues that the lower court, the Hon. Dennis Baker, Chancellor, erred in sustaining the demurrer to the bill for partition filed by Mr. Sartin as a tenant in common. We affirm.

When divorced from each other on May 19,1980, by decree of the Chancery Court of the Second Judicial District of Yalobusha County, the litigants owned the subject property as tenants in common. Not only did the decree grant Mrs. Sartin a divorce on the ground of habitual cruel and inhuman treatment, but it also provided that she

is hereby awarded the exclusive use and possession of the . . . land, which was the marital home of the parties, prior to the separation, without any interference or molestation from the Defendant, during her widowhood or until the further orders of this Court. The Defendant, Elbert E. Sartin, is. hereby enjoined from coming around or in any wise interfering with or molesting the Complainant in the peaceful and quiet enjoyment of the exclusive use and possession of the above described property. . . . Defendant, Elbert E. Sar-tin, is hereby enjoined and prohibited from transferring, or attempting to transfer, disposing of, or attempting to dispose of, incumbering [sic] by mortgage or otherwise his undivided one-half interest in the above described property which is hereby awarded and was awarded to the Complainant, Levonia Sartin, during her widowhood.

Mr. Sartin filed his bill for partition on July 23, 1980, charging that the property was incapable of partition in kind, and on that basis he sought an order of the court to sell the property and divide the proceeds between himself and his former wife, Mrs. Sartin. Under Mississippi Code Annotated § 11-21-3 (1972), Mr. Sartin contends that he “had an unfrettered [sic] right” to partition. Attached to his bill was a copy of the original divorce decree. In response to the bill filed against her, Mrs. Sartin filed a motion to strike, averring that under the divorce decree she was awarded exclusive use and possession of the property. As previously stated she also filed a demurrer. Before the demurrer was heard, she filed an answer stating that Mr. Sartin’s one-half interest had been awarded to her “during her widowhood” by the terms of the divorce decree.

In sustaining Mrs. Sartin’s demurrer, the court emphasized the part of the decree which states that she should have the exclusive use and possession of the property “during her widowhood or until further Orders of this Court.” Obviously the lower court in its decrees, and the parties themselves considered “widowhood” as meaning that Mrs. Sartin had not remarried. The lower court stated:

We are yet during her widowhood, and this Decree of Divorce, having been entered on May 19, 1980, and this being the latter part of October, 1980, specifically the 28th of October, we simply have a case that was filed without merit, because the cases of this State say clearly that alimony may be awarded in many ways, one of which is the awarding of the use and occupancy of the marital home, which would be considered in the way or manner of alimony, and this Court considers this alimony — this award — this granting of a right to use during her widowhood or until further orders of this Court — as being alimony to her, and a right that is superimposed upon the legal title to the property, half of which is owned by him. He yet owns his property. The Court, on May 19, 1980, did not divest title out of Mr. Sartin [sic]. Neither is this Court divesting title out of Mr. Sartin [sic]. He may convey. He may dispose. He may do as he wish with his interest in the property, but this Court, as the Court on May 19, 1980, is going to continue the right for her to use, exclusively, this property.

Upon the facts of this case partition will not be compelled in derogation of a decree imposed against the property of the parties where the decree provides that, as part of the settlement of the parties’ mutual rights and obligations, the former spouse (Mrs. Sartin here) has the exclusive right as long as she remains unmarried. Should partition be allowed to defeat her right of possession of the home property, in all probability she would need additional support money from her husband. As stated in Ripp v. Ripp, 38 A.D.2d 65, 327 N.Y.S.2d 465 (1971), aff’d 32 N.Y.2d 755, 344 N.Y. S.2d 950, 298 N.E.2d 114 (1973), a New York case with facts similar to those in the instant case,

In the usual case, the question of the sale of the marital home or other property of the spouses should be decided at the time of the making of the judgment. At that point in the marital career of the parties all questions at issue are better resolved, so that disputes and irritants do not linger and present further incentives for litigation.
In most cases the parting of ways should be accompanied with clearly stated obligations for the future, put in monetary terms so far as possible. 38 A.D.2d at 70, 327 N.Y.S.2d at 470.

We are unwilling upon the initiative of the ex-husband to allow him to obtain through partition a legal result contrary to the divorce decree from which he took no appeal. Instructive, if not controlling, is Weeks v. Weeks, 403 So.2d 148 (Miss.S.Ct.1981), where we held that a prior property settlement was binding and “prevented appellant’s attempt to partite.” The court which granted the divorce, both in Weeks, and the present case, was in the best position to adjudicate and adjust equitable factors existing between the parties who were co-owners of the property; and having made its evaluation the lower court’s divorce decree should not be circumvented by a bill in partition. Allowing Mr. Sartin to maintain the partition suit would be to allow him to take an action prohibited by the divorce decree. Clearly this should not be permitted without his first having brought a suit to modify the divorce decree so as to grant him the right to proceed with his bill for partition. He contends that inasmuch as the prior decree did not specifically enjoin him from a “partition” suit, he may maintain such an action. Although the magic word “partition” did not appear in the prior decree, such language was not necessary in view of the broad terms and clear intent of the decree.

Germane, though not controlling, are the following cases, cited in Weeks, supra: Welborn v. Welborn, 386 So.2d 722 (Miss. 1980); Blackmon v. Blackmon, 350 So.2d 44 (Miss.1977). Welborn is factually distinguishable from the instant case because in it the ex-wife Mrs. Welborn, who had been given the right to occupy the dwelling, sought partition. We held in Welborn that ex-wife Mrs. Welborn was entitled to partition, but her situation was far different from the ex-wife’s in the present case. The difference is that in Welborn she was of her initiative surrendering her right to occupy the dwelling which the divorce decree had awarded her. In the present case, ex-wife Mrs. Sartin is not surrendering or waiving her right to occupy the subject property, but to the contrary she is using as a shield (to her ex-husband’s bill for partition) the prior decree granting her the exclusive right to occupy the jointly owed property. She is entitled to assert the prior decree as a shield because it granted her exclusive possessive rights and precluded Mr. Sartin from doing anything that would interfere or molest Mrs. Sartin in her use and occupation of the property. Blackmon is also distinguishable from the present case because there again (as in Welborn) it was the ex-wife, not the ex-husband, who sought partition of the property even though she had the right and option under the prior divorce decree to the exclusive use of the subject dwelling property.

As stated in Welborn, the circumstances of that case as well as Blackmon, were “not such as to require” the ex-wife to occupy the former dwelling permanently or indefinitely or to “forfeit rights vested in her as joint tenant.” Both Welborn and Blackmon are cases wherein the ex-wife “elected to move elsewhere and to ask for a partition of the property.” In the present case, ex-wife Sartin has made no such election, and she is entitled to enjoy the provisions of the divorce decree which granted her the right to occupy the subject property as long as she did not remarry, or until further orders of the court. Mr. Sartin took no appeal from the decree and not having appealed, he is bound by its terms.

Second argument made by Mr. Sar-tin is that the lower court erred in not allowing him to file an amended bill for partition. Stated in his brief is the assertion that the lower court should have allowed him sufficient time to file an amended bill for partition. After the court by order dated October 28, 1980, sustained the demurrer thereby dismissing Mr. Sartin’s bill, Mr. Sartin on October 31, 1980, filed a pleading entitled “Motion to Recall and Reverse Order Sustaining the Demurrer.” Nowhere in his motion or in his brief filed here, or otherwise, is it shown that he sought leave to amend his bill, or what the amendment to the bill would have been had the motion to “recall and reverse” been sustained. Not having sought leave to amend, and not having demonstrated or set forth the nature or content of the amendment, Mr. Sartin is not now entitled to reversal on the basis of his second argument.

The record does not show that Sartin asked that he be allowed to file an amended bill for partition. This Court has held that where a demurrer is sustained a final disposition of the bill follows unless the complainant asks for leave to amend. Guillot v. Board of Trustees, 317 So.2d 920 (Miss. 1975); Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395 (1938). Inasmuch as Sartin did not ask to amend his bill, the chancellor was correct in dismissing it.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and HAWKINS, JJ., concur.

      . In rather unique language, the deed to the Sartins stated, “to Elbert ... or his wife, Mrs. Levonia ...” without any mention of any particular type tenancy or survivorship rights.


author: WALKER, Justice,

text:
    Leroy James MAIBEN v. STATE of Mississippi.
    No. 52774.
    Supreme Court of Mississippi.
    Oct. 14, 1981.
    Louis Fondren, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

On August 25, 1980, Leroy James Maiben was found guilty of murder in the Circuit Court of Jackson County, Mississippi. Mai-ben appeals from this conviction contending:

(1) That the verdict of the jury was against the overwhelming weight of the evidence; and

(2) That the court erred in allowing the defendant’s wife to testify against the defendant after the defendant’s counsel raised a proper objection to her competency. Further, the court failed to grant defense counsel’s motion for mistrial due to the admission of this incompetent witness’ testimony. We affirm.

On March 8, 1980, in Moss Point, Mississippi, Reverend Melvin Leroy Kirkland was in his living room watching television while his daughter, Dorothy Maiben, was preparing lunch in the kitchen. Leroy James Mai-ben, Dorothy’s husband, had been trying to persuade her to go to the bedroom so he could talk to her. She assured him several times they would talk after lunch. Soon afterwards, from the living room, Dorothy heard her husband say, “hey,” . . . “hey, you are first.” Whereupon there was a gunshot. She ran immediately to the living room and exclaimed, “oh, you shot my daddy, why did you do it”, and her husband answered, “yes, and you are next.” Mrs. Maiben went for the shotgun, a scuffle ensued in which Maiben began hitting his wife in the area of her head and ordering her to shutup. During this exchange, the shotgun went off again, apparently through the screen door. When Mrs. Maiben was successful in wrestling the gun from her husband, she fled her house to that of the neighbor’s. When the police arrived she handed them the shotgun and learned that her husband had gone. A man identified as Maiben was seen walking two blocks from the Maiben home by an officer of the Moss Point Police Department in route to investigate the incident. Freddie Gray, Mrs. Mai-ben’s nephew and Reverend Kirkland’s grandson, recounted a telephone conversation with the defendant the day before the shooting in which Gray had commented about going to Philadelphia, Mississippi, with his grandfather the next day. To this, the defendant replied: “Pappa’s not going with you tomorrow . . . watch what I tell you, he’s not going.”

The defendant claimed the struggle between the two was due to her refusal to sell the shotgun and pay the utility bill. Upon emerging from the bedroom, “She grabbed the gun and started wrestling with me.” The gun went off once, they continued struggling to a point near the front door when the gun fired again. Maiben then surrendered the gun and left the house. He testified his back was to Kirkland and never knew that his father-in-law had been shot.

When Maiben departed he did not stop until he reached Florida where he was arrested two months later, neither informing his wife nor packing any clothes.

Dr. James Logan Stith testified the cause of death was asphyxia from the aspiration of blood into the lungs as a result of a gunshot wound at close range.

PROPOSITION I

THAT THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

This assignment of error is void of any authority to support appellant’s assertion and he relies solely on the conflict in his and his wife’s account of what happened and his lack of motive to shoot his father-in-law.

The law is well settled in this State that motive is not an essential element in a conviction for murder. Freeman v. State, 228 Miss. 687, 89 So.2d 716 (1956); Barnett v. State, 232 Miss. 208, 98 So.2d 656 (1958); Swanson v. State, 218 Miss. 103, 65 So.2d 232 (1958).

We have held in numerous cases that the jury is the sole judge of the credibility of the witnesses and the weight to be attached to their testimony. We have further said that we will not set aside a guilty verdict, absent other error, unless it is clearly a result of prejudice, bias or fraud, or is manifestly against the weight of credible evidence. Cromeans v. State, 261 So.2d 453 (Miss. 1972); Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); and Freeman v. State, supra.

PROPOSITION II

THAT THE COURT ERRED IN ALLOWING THE DEFENDANT’S WIFE TO TESTIFY AGAINST THE DEFENDANT BECAUSE THE DEFENDANT’S COUNSEL RAISED A PROPER OBJECTION TO HER COMPETENCY. FURTHER, THE COURT FAILED TO GRANT DEFENSE COUNSEL’S MOTION FOR MISTRIAL DUE TO THE ADMISSION OF THIS INCOMPETENT WITNESS’ TESTIMONY.

The facts of this case present a case of first impression before this Court.

A comprehensive history of the competency of one spouse to be a witness against the other in a criminal prosecution can be found in Merritt v. State, 339 So.2d 1366 (Miss.1976) and Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980).

The competency of a husband and wife as a witness against each other in this State is governed by Mississippi Code Annotated section 13-1-5 (1972) which provides:

Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. A criminal prosecution of either husband or wife for contributing to the neglect or delinquency of a child or desertion or nonsupport of children under the age of sixteen (16) years or abandonment of children shall be deemed controversies between husband and wife for the purpose of this section. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.

The testimony showed that the appellant, Leroy Maiben, and his wife, Dorothy Mai-ben, were married and living together at the time of the killing involved in this case. The record also reveals that Dorothy Mai-ben was willing to testify against the appellant. The appellant made a timely objection to her testifying, giving as his reason that section 13-1-5 made her an incompetent witness without his consent, as well as her’s. The appellant places emphasis on that part of the statute which reads: “. . . where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.” (Emphasis added). However, the appellant has passed over too hastily the first sentence of the statute which has a significant bearing on this case. That sentence reads: “Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them.” (Emphasis added).

The precise question then is whether the nearly simultaneous assault upon Mrs. Maiben by her husband and his threat to kill her “next” on the occasion that he shot and killed Reverend Kirkland, her father, is such a controversy between them as to make her a competent witness, when she is willing to testify, in a criminal prosecution of him for the murder of her father.

We are of the opinion that Mrs. Maiben was a competent witness against her husband, the appellant, under the facts presented.

It is well settled that a wife is competent to testify against her husband for a crime of personal violence committed by him against her. This common law exception is based on the necessity for such testimony. The exception has also been based on the recognition that once violence has been committed by one spouse against the other, the sanctity of the marriage has been destroyed. Thus, the very reason for the privilege no longer exists.

The modern justification for the privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship. However, when one spouse is willing to testify against the other in a criminal proceeding — whatever the motivation — the relationship is almost certainly in disrepair; and, there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to foster family peace. Trammel v. United States, supra. However, it is not necessary, in this case, to extend the rule that far.

The modern tendency is to relax the old rules of incompetency of witnesses, generally. This tendency is exemplified in many of the modern statutes. It is, in our opinion, contrary to common sense and justice to close the mouth of the only witness in such a case as the present. What is not good sense should not be the law. Merritt v. State, supra.

We, therefore, hold that the continuing acts of violence on the occasion in question involving the shooting of Mrs. Maiben’s father by the appellant and the appellant’s assault upon her and threat against her life constitutes such a controversy between them that, being willing to testify, she was a competent witness for the State in a prosecution of appellant, her husband, for the death of her father, Reverend Kirkland.

See McRae v. State, 104 Miss. 861, 61 So. 977 (1913) and Merritt v. State, 339 So.2d 1366 (Miss.1976).

Finding no reversible error, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Ruth McNEAL v. STATE of Mississippi.
    No. 52878.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      J. Hal Ross, Brandon, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court.

This is an appeal from the Circuit Court of Rankin County wherein the appellant was convicted of the crime of armed robbery and sentenced to serve a life term in the custody of the State Department of Corrections.

On or about February 26, 1980, two persons robbed Mrs. Lois Giordano, operator of a business establishment in the City of Pearl. During the course of the robbery, Mrs. Gioradano was shot and seriously wounded and $200 was taken from her.

PROPOSITION I

THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE THE CONFESSION OF THE DEFENDANT WHERE THE DEFENDANT TESTIFIED THAT THE CONFESSION WAS NOT VOLUNTARY AND THE STATE FAILED TO OFFER ALL OFFICERS WHO WERE PRESENT DURING THE PURPORTED CONFESSION.

It is conceded by appellant that a suppression hearing was held to determine the voluntariness of the confession out of the presence of the jury and that the dictates of Agee v. State, 185 So.2d 671 (Miss.1966) were complied with at that hearing. The rule laid down in Agee is that “... when, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness.” (185 So.2d at 673).

Agee was fully complied with at the suppression hearing. The court ruled that the confession was admissible and admitted it into evidence during the state’s case in chief.

After the state rested, the defendant took the stand in her own behalf and testified that she did not sign the confession until after Officer Manning slapped her about the head and further abused her for approximately one and one-half hours. She further contended that she did not commit the armed robbery.

Thereafter, the state, in rebuttal to the defendant’s testimony, recalled all of the officers except Manning. All of the officers again testified that the appellant was not beaten, threatened, forced, coerced, etc. in their presence. Although Manning did not testify in rebuttal, the state points out that he did testify on several occasions during the course of the trial that the appellant was not beaten, threatened, coerced, etc. at any time in his presence and that the defendant voluntarily signed the confession.

The question before the Court is whether, after a suppression hearing has been held in accordance with the dictates of Agee, it is necessary for the state to recall all of the officers present when the confession was taken and signed to again rebut the defendant’s allegations of coercion after she testified in her defense before the jury. We answer that question in the negative. Once the court has ruled, as a matter of law, that a confession was freely and voluntarily given, and it is admitted into evidence, the jury is the sole judge of its weight and worth as evidence in determining the guilt or innocence of the defendant. Although it is within the discretion of the state to recall the officers, or any particular officer, to rebut the defendant’s claim of coercion or mistreatment, there is always the practical risk that the jury will believe the defendant and fail to give the confession any weight in its deliberations.

The competency of a confession as evidence is for the court to decide as a matter of law, while the weight and credibility of a confession is for the jury to decide along with other testimony and physical evidence.

Once a suppression hearing has been held in strict accordance with the mandate of Agee, outside the presence of the jury, and the court has ruled, as a matter of law, that the confession was freely and voluntarily given and the confession is admitted into evidence, the state need not, except in its discretion, recall all the officers to again testify to the voluntariness of the confession after the defendant takes the stand and claims that the confession was obtained by coercion, etc. Ratliff v. State, 317 So.2d 403, 405 (Miss.1975); Rhone v. State, 254 So.2d 750 (Miss. 1971).

PROPOSITION II

During the state’s case in chief, when Mrs. Giordano was asked to make an in-court identification of the defendant, the defendant objected and moved to suppress any in-court identification by Mrs. Giordano on the ground that said identification would be tainted because she had previously identified the defendant by way of photographs, which were allegedly presented to her in a highly suggestive manner. The jury was excused from the courtroom and a hearing was conducted by the court out of the presence of the jury. At the conclusion of the hearing, the court overruled the defendant’s objection to Mrs. Giordano’s in-court identification and she testified that defendants were in her store approximately five or six minutes before the armed robbery occurred; that there were no other customers in the store at that time; that they did nothing suspicious before accosting her with the gun; that she was as close as approximately 3'/2 feet from them; that she got a good look at the two individuals on the date and time in question; that there was no doubt in her mind that the appellant and her co-defendant “are the individuals who pulled this armed robbery on me”; that she was certain of the three photographs of the appellant; that the first time that she was shown a stack of pictures on the night after the robbery occurred, she identified the co-defendant, Melissa Hicks, from the mug shot type photographs, but that the defendant McNeal’s picture was not among that group; that on or about May 28, approximately three months after the robbery, officers came to her house and showed her another stack of approximately 15 to 20 photographs, all of which were of the same race as the defendant and all of which were typical mug shots except two, which were Polaroid color pictures of the defendant; that without any suggestion or assistance from the police officers, she picked out the typical mug shot of the defendant, McNeal, as well as the two color Polaroid shots which depicted the defendant wearing a wig in one and not wearing a wig in the other; that shortly after the robbery she gave a description of the physical characteristics of the defendant to the police officers; and that she was positive the defendant and her co-defendant, who were then in the courtroom, were the same women who robbed and shot her on the day of the robbery.

We have carefully considered the testimony of Mrs. Giordano and the police officers who corroborated her testimony concerning the photographic identification of the defendant and are of the opinion that the inclusion of three pictures of the defendant in a group of approximately 15 to 20 was not irreparably suggestive.

The standard for determining the likelihood of misidentification set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) includes in its test of “reliability” the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated to the confrontation, and the time between the crime and the confrontation. Weighing these factors against the corrupting effect of the alleged suggestive identification, we find there was no substantial likelihood of irreparable misidentification.

Furthermore, according to Manson, the Fourteenth Amendment’s guarantee of due process does not require a per se rule of exclusion regarding pretrial identification evidence developed under procedures which are suggestive and unnecessary. The rule espoused in Manson permits admission of such evidence, if under the totality of the circumstances, the identification is reliable. Although both rules are responsive to the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability, the per se rule goes too far since its application automatically and peremptorily, and without consideration of alleviating factors, excludes evidence from the jury that is relevant and reliable.

The per se rule has serious drawbacks in its effect on the administration of justice because the rigidity of the rule may make error by a trial judge more likely than under the totality approach. By denying the trier of fact reliable evidence, the result, on occasion, may be that the guilty will go free. Manson, supra; Chambers v. State, 402 So.2d 344 (1981).

Short of finding that under all the circumstances, there is a very substantial likelihood of irreparable misidentification from the identification of an accused made under suggestive and unnecessary police identification procedures, evidence of such an identification is for the jury to weigh. Manson, supra.

We being of the opinion that there was no substantial likelihood of irreparable mis-identification of the defendant, the evidence of the identification was for the jury to weigh.

Finding no reversible error, the judgment and sentence of the trial court are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.

      . Of the 15 to 20 photographs shown to Mrs. Giordano, 3 photographs, one mug shot and 2 Polaroid camera pictures, were of the defendant. The other photographs were typical mug shots of persons the same race and gender as the defendant.