author: BARRON, Judge.

text:
    Hoyt Thomas NANCE v. STATE.
    4 Div. 967.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 2, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-126.

      Cary L. Dozier, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BARRON, Judge.

Hoyt Thomas Nance was indicted by the July 1980, term of the Pike County Grand Jury for first degree theft and conspiracy to commit first degree theft under §§ 13A-4-3, -8-3, Code of Alabama 1975. The jury found him guilty of the lesser included offense of attempt to commit first degree theft. Ala.Code, § 13A-4-2 (1975). The State gave both oral and written notice of its intention to invoke the provisions of the Habitual Felony Offender Statute. A sentencing hearing was held at which the State proved three prior felony convictions. The trial court then sentenced appellant to fifteen years’ imprisonment. Ala.Code, § 13A-5-9(c)(l) (1975). Hence this appeal.

Larry Sasser testified that sometime in June 1980, he met United States Treasury Department undercover agent Mike Harris. At the time, Sasser was unaware that Harris was a federal agent. Harris came to his house and expressed his desire to purchase some counterfeit money. Sasser put Harris in contact with a friend, William Cawley.

The three later met at Cawley’s residence and discussed the sale of the counterfeit money. Cawley exhibited some counterfeit bills to Harris. Harris told Cawley that he would buy $100,000 of the bogus bills. Sas-ser stated that another meeting was held at Cawley’s residence, at which time appellant was introduced to Harris. Sasser stated that appellant wanted to meet Harris and make a deal. The arrangement was for Harris to buy $100,000 of counterfeit money for $20,000.

Subsequently, Sasser and Harris met Cawley at a pre-determined location near Brantley. There Cawley informed Harris that the final meeting was to be held at Gowan’s Truck Stop in Montgomery. Harris refused to meet there and the deal stalled. After arriving home, Sasser was called by both Harris and appellant. Both expressed their desire for the deal to be finalized. Another meeting place was chosen, that being the Troy Holiday Inn.

Just before dark on June 25, 1980, Sasser and Harris met an individual named Linwood Ridley in the lounge of the Troy Holiday Inn. There the final details of the transaction were discussed. It was agreed that while Sasser and Ridley left the motel to pick up the bogus money, Harris would bring the $20,000 to appellant in room 140. Sasser and Ridley left the motel and, after traveling a short distance, Ridley handed Sasser some car keys and told him to get the counterfeit money out of a nearby parked car. Sasser exited the vehicle and Ridley immediately drove away. The keys did not fit the car. Sasser stated that it was at this point that he realized that the deal was a “rip-off.” He paid a passerby to drive him back to the motel. Once there, he yelled to Harris that the deal was a “rip-off,” and was immediately arrested.

Sasser stated that he knew nothing about stealing the $20,000. Based on that, appellant moved to exclude any testimony regarding counterfeit money.

United States Treasury Department undercover agent Mike Harris testified that on June 11, 1980, he was contacted by Coffee County Sheriff’s investigator Roger Booth, who informed him of the possibility of counterfeiting activities occurring in the county. Later that day, Harris was introduced to a confidential informant. On June 12, the informant introduced Harris to Sas-ser. At this meeting, Sasser told Harris that he knew of some individuals who were interested in selling some counterfeit money-

On June 13, Sasser accompanied Harris to the residence of Cawley. After being introduced, Harris and Cawley discussed a sale of $100,000 in bogus bills for $20,000. Caw-ley gave Harris two counterfeit bills to examine. Another meeting was set for the following day where Harris would be introduced to, as Cawley called him, “the money man.” On June 14, Harris and Sasser returned to Cawley’s residence where he met appellant, who was using the name of Glenn Pike. Appellant controlled the meeting and confirmed the initial agreement. He informed Harris that another individual had to be contacted before the deal could be finalized. After other meetings and communications, the transaction was set for June 25, at 5:00 p.m. at the Holiday Inn in Troy, Alabama.

At 5:00 p.m. on June 25, Harris and Sas-ser met with an individual named Linwood Ridley in the motel’s lounge. Ridley confirmed the terms of the transaction and suggested methods of successfully passing the counterfeit bills. Ridley suggested that Harris and Sasser follow him to room 140. Room 140 was registered to a “Mr. Glenn Pike.” About one minute after Ridley had left, they went to the room, knocked, and entered. Present were Ridley and appellant. It was agreed that while Ridley and Sasser drove to an undisclosed location to pick up the bogus money, Harris would deliver the $20,000 to appellant at the motel room. Harris stated that he understood the agreement to be that he would remain with appellant while he counted the money. Sasser and Ridley left while Harris retrieved the $20,000. He returned to room 140 and handed it to appellant. After Harris handed the money, in a paper bag, to appellant, appellant closed the door. Harris and other agents, deployed around the motel, converged on the room, identified themselves, and demanded access to the room. Appellant opened the door and was promptly arrested. Immediately thereafter, Harris stepped out of the room and closed the door to await the return of Sasser.

When Sasser returned, he hastily approached Harris and told him that the deal was a “rip-off.” Sasser was then arrested.

Subsequent to Sasser’s arrest, a search of the motel room was conducted. Although no counterfeit money was found, a large hole concealed by the bathroom mirror was discovered. The hole opened into a maintenance corridor running between the rooms. A hole was found in the corridor which opened into a maintenance room. Harris took several photographs of the holes, corridor, and maintenance room.

Harris testified that he checked several hotels in Montgomery in the vicinity of Gowan’s Truck Stop to determine whether appellant had rented a room. He found that on June 15, a room at the Scottish Inn had been registered in the name of Glenn Pike. The motel manager allowed him to examine the room. Harris found a hole in the wall located behind the bathroom mirror. The hole led to a maintenance room.

Harris stated that appellant was arrested for the federal offense of conspiracy to sell counterfeit money. 18 U.S.C. §§ 371, 471 (Supp. IV 1976). He did not envision theft charges arising out of the investigation. However, when Harris presented his report to the U.S. Attorney’s office, he was informed that “the actions of the people involved [were] not for me to buy a hundred thousand dollars in counterfeit. It was to steal the twenty thousand dollars from me.” Consequently, he was advised that no federal charge could be made. Rather, the matter should be presented to the proper district attorney’s office for action.

United States Treasury Department agent George McDavid testified that he was part of the surveillance team assisting Harris in the counterfeit money purchase at the Troy Holiday Inn. McDavid observed the actions of Sasser, Ridley, and Harris from a van parked near room 140. McDavid stated that he and Harris had agreed to make an arrest once the $20,000 left Harris’s control. When McDavid saw Harris hand appellant the money and appellant shut the door, he exited the van, approached the room, identified himself, and demanded entry. Once appellant complied with the request, McDa-vid arrested him. He gathered the $20,000 which was lying on the bed and returned it to the paper bag. He opined that once appellant received the money and closed the door a theft had occurred. McDavid searched appellant and found two driver’s licenses, one in appellant’s true name and the other in the name of Glenn Pike. McDavid advised appellant of his Miranda rights, and his testimony established the proper voluntariness predicate. He questioned appellant, who stated, “I don’t know what I could tell you at this time.” Appellant indicated that there was no counterfeit money in the room. After ascertaining appellant’s true identity, appellant told McDa-vid “that his job was to take the money and get out. .. . ” Sasser, Harris, and McDavid testified before the jury to substantially the same facts as these recounted above.

Appellant had previously filed a written motion to suppress all evidence seized on the basis of the illegality of his arrest and non-compliance with the guidelines of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The motion was never ruled upon by the trial court, and appellant did not request the trial court to rule and did not object to the trial court’s failure to rule. Consequently, nothing is presented for our review. Parker v. State, 406 So.2d 1036 (Ala.Cr.App.), cert. denied, 406 So.2d 1041 (Ala.1981); Boykin v. State, 398 So.2d 766 (Ala.Cr.App.), cert. denied, 398 So.2d 771 (Ala.1981).

I

Appellant contends that his arrest was illegal as probable cause did not exist. We disagree.

As we stated in Tice v. State, 386 So.2d 1180, 1183 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980):

“An officer may arrest without a warrant when ‘a felony has been committed and he has reasonable cause to believe that the person arrested committed it.’ Section 15-10-3, Code of Ala.1975. The rule of reasonable or probable cause is a ‘practical, non-technical conception.’ Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):
“ ‘Probable cause exists where “the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed .... ’ (Citation omitted.)
“In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only, have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed or was committing an offense.”

See also Carter v. State, 405 So.2d 957 (Ala.Cr.App.), cert. denied, 405 So.2d 962 (Ala.1981); Braxton v. State, 350 So.2d 753 (Ala.Cr.App.1977); Knight v. State, 346 So.2d 478 (Ala.Cr.App.), cert. denied, 346 So.2d 483 (Ala.1977).

In Moore v. State, 415 So.2d 1210, 1216 (Ala.Cr.App.1982), we stated:

“ ‘[0]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ Rudolph v. State, 371 So.2d 962, 964 (Ala.Cr.App.), cert. denied, Ex parte State ex rel Attorney General, 371 So.2d 965 (Ala.1979). An officer need not possess knowledge of facts sufficient to establish guilt, but more than mere suspicion is required. United States v. Matthews, 615 F.2d 1279, 1284 ([10th Cir.] 1980). Probable cause for arrest is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Knapp, 294 So.2d 338, 341 (Fla.App.1974); see 34 Words and Phrases, ‘Probable Cause’. Probable cause for arrest without a warrant is something less than proof needed to convict and something more than a raw unsupported suspicion; it is a suspicion or belief of guilt that is ‘well-grounded’. State v. Vaughn, 12 Ariz.App. 442, 471 P.2d 744, 746 (1970); State v. Davis, 50 N.J. 16, 231 A.2d 793, 797 (1967).
“ ‘In determining whether the police have probable cause to believe that a felony was being committed so as to justify an arrest without a warrant, the sufficiency of the knowledge of the officers must be determined, not by analysis of the effect of each known circumstance in isolation, but by a conclusion as to what a reasonable man, knowing all the facts which the officers knew from their investigation, would have believed under these circumstances.’ Knapp, 294 So.2d at 341.”

The presence or absence of probable cause must be determined by examining the circumstances surrounding the arrest. Turk v. State, 53 Ala.App. 106, 298 So.2d 37 (1974). Under certain circumstances, the observed conduct of the suspect may furnish probable cause to arrest. Tiner v. State, 279 Ala. 126, 182 So.2d 859 (1966). The identity of the person arrested need not be known in order for probable cause to exist. Sexton v. State, 349 So.2d 126 (Ala.Cr.App.1977).

Payton is not applicable to the instant case as Payton involved “a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” The facts of this case do not fall within the prohibition expressed in Payton.

A complete review of the evidence convinces us that probable cause existed for the arrest of appellant. Although Officer Harris did not envision a theft charge arising out of his investigation and arresting agent McDavid did, probable cause existed for appellant to be arrested under either the anticipated federal charge or the ultimate state charges. 18 U.S.C. § 3056(a) (Supp. IV 1976); § 15-10-3, Code 1975.

II

A

The amount of evidence required to establish either probable cause to arrest or probable cause to search, is generally the same. Moore, supra; Nikolic v. State, 384 So.2d 1141 (Ala.Cr.App.1979), cert. denied, 384 So.2d 1151 (Ala.1980); Preyer v. State, 369 So.2d 901 (Ala.Cr.App.1979). A search incident to a lawful arrest does not require a search warrant. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Consequently, the search of the motel room was legal.

B

No counterfeit money or other evidence was found and seized during the search of the motel room. Photographs of the holes found by Harris were admitted into evidence. Appellant objected to the admission of the photographs, contending that they were highly prejudicial and incriminating and that no evidence had been presented connecting him with the holes.

“As a general rule, photographs are admissible in evidence if they are properly verified either by the photographer or a person who is familiar with the subject of the photograph and if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Photographs may be admitted if they tend to shed light on, strengthen, or to illustrate other testimony in the case. Carpenter v. State, Ala. Cr.App., 400 So.2d 417, cert. denied, Ala., 400 So.2d 427 (1981); Hurst v. State, [Ala.Cr.App.] 397 So.2d 203, cert. denied, Ala., 397 So.2d 208 (1981); Gamble, McElroy’s Alabama Evidence § 123.03(1), (3rd ed. 1977).
“It is within the trial court’s discretion to determine the sufficiency of preliminary proof offered to identify photographs and to show that they fairly and accurately represent what they purport to be. Only when its exercise is abusive will such be overturned. Carpenter, supra; Hurst, supra; McElroy, § 123.03(2). Donner v. State, 409 So.2d 461, 464 (Ala.Cr.App.1981).”

The testimony of Harris clearly established the proper predicate for admission of the photographs. Further, the photographs are relevant as they indicate a means of escape or flight from the motel room once appellant obtained the $20,000.. Such would reflect an intent to steal the money. No error was committed by the trial court in admitting the photographs.

Ill

Appellant contends that the trial court erred in denying his demurrer to the indictment. He argues that Count Two, which charged criminal conspiracy to commit first degree theft, did not allege the time and place of the theft or sufficient facts establishing that the theft post-dated the conspiracy.

Omitting the formal parts, Count Two of the indictment reads:

“The Grand Jury of said County charge that before the finding of this indictment: Hoyt Thomas Nance, whose name is to the Grand Jury otherwise unknown, did agree with Linwood Ridley to commit the crime of Theft, 13A-8-3 of the Code of Alabama, with the intent that conduct constituting said offense be performed and that Hoyt Thomas Nance did commit Theft in furtherance of said crime in violation of 13A-4-3 of the Code of Alabama, .... ”

Section 13A-4-3(a), Code of Alabama 1975, defines criminal conspiracy as follows:

“A person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement.’’

In Wilder v. State, 401 So.2d 151, 160-61 (Ala.Cr.App.), cert. denied, 401 So.2d 167 (Ala.1981), we stated:

“The general rule in Alabama is that it is sufficient to charge the elements of the statutory offense in the words of the statute. Gayden v. State, 262 Ala. 468, 80 So.2d 501 (1955).
“The only qualification to this rule is that the.indictment must apprise the accused with reasonable certainty of the nature of the accusation against him, so that he may prepare his defense and plead the judgment of conviction as a bar to any subsequent prosecution for the same offense. United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819 (1877).”

This court’s case of Harrison v. State, 384 So.2d 641, 643 (Ala.Cr.App.1980), also addressed the requirements of a valid indictment:

“If there is no indictment form for an offense set out in Code § 15-8-150, then an indictment which closely parallels the language of the statute creating the offense is generally valid. Worrell v. State, Ala.Cr.App., 357 So.2d 373, cert. denied, Ala., 357 So.2d 378 (1978); Manson v. State, Ala.Cr.App., 349 So.2d 67, cert. denied, Ala., 349 So.2d 86 (1977); Code § 15-8-23.
“Pursuant to Code § 15-8-25, an indictment must state the facts constituting the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended. An indictment must likewise apprise the accused not only of the nature of the offense, but also of the particular act or means by which it was committed. Chambers v. State, Ala.Cr.App., 364 So.2d 416, cert. denied, Ala., 364 So.2d 420 (1978). See also: Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977). However, an averment of the means, although one of substance and not of form, is not a constituent or essential element of the offense. The omission of such would render an indictment merely voidable rather than void. Consequently, such a deficiency must be timely and specifically raised by demurrer. Gaines v. State, 146 Ala. 16, 41 So. 865 (1906); Whitt v. State, Ala.Cr.App. 370 So.2d 730, reversed on other grounds, Ala., 370 So.2d 736 (1978); Jeter v. State, Ala.Cr.App., 339 So.2d 91, cert. denied, Ala., 339 So.2d 95 (1976).”

The failure to timely and specifically demur to the indictment precludes appellate review of the indictment’s alleged deficiencies. Flowers v. State, 402 So.2d 1088 (Ala.Cr.App.), cert. denied, 402 So.2d 1094 (Ala.1981).

In the instant case, the record reveals that appellant was arraigned on August 15, 1980, and entered a plea of not guilty. He did not file his demurrer to the indictment until August 19, 1980.

Based on the foregoing authorities, we find no error on the part of the trial court in overruling appellant’s untimely demurrer.

IV

Appellant contends that the trial court erred in admitting prior conversations between Sasser and Harris made without appellant present. The conversations concerned the purchase of some counterfeit money by Harris. At the in camera hearing appellant objected to admission of any testimony concerning counterfeit money.

Where proof of a conspiracy exists, any act or statement by an accused’s co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy and in furtherance of a plan or design, is admissible against the accused. Conley v. State, 354 So.2d 1172, 1177-78 (Ala.Cr.App.1977); Cox v. State, 367 So.2d 535 (Ala.Cr.App.1978), cert. denied, 367 So.2d 542 (Ala.1979); see United States v. Araujo, 539 F.2d 287 (2d Cir.1976); Slater v. State, 356 So.2d 69 (Fla.Dist.Ct.App.1978). While it is preferable that a co-conspirator testify after the prima facie showing of the existence of a conspiracy, such order of proof is not mandatory. The order of proof requirement is for the purpose of expediting the trial and saving the valuable time of the trial court, rather than protecting or securing any supposed right a defendant might have. Morton v. State, 338 So.2d 423, 425 (Ala.Cr.App.), cert. denied, 338 So.2d 428 (Ala.1976); Conley, supra.

The State’s evidence, as a whole, clearly established a conspiracy among the parties. Thus, the conversations between Sasser and Harris were admissible.

V

The State’s evidence proved a prima facie case of attempt to commit first degree theft. Ala.Code §§ 13A-4-2, -8-3. The verdict of the jury is amply supported by the evidence. Thus, the trial court properly denied appellant’s motions to exclude and for a new trial.

We have reviewed appellant’s contentions on appeal and find no error. This cause is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    David Samuel SLAUGHTER v. STATE.
    4 Div. 971.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-222.

      William D. McFatter of McFatter & Ward, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Murder; fifty years.

The appellant was indicted under Ala. Code § 13A-6-2 (Supp.1977) for causing the death of Louise D. Buchannan while recklessly engaging in conduct which created a grave risk of death to a person other than himself under circumstances manifesting extreme indifference to human life. The appellant was charged specifically with causing the victim's death by driving his automobile “on, against, over, or across” her body.

On July 29, 1981, at approximately 5:00 P.M., the appellant, who was traveling in a southerly direction, crossed over the northbound lane of South Park Street in Dothan, jumped the curb and struck the victim as she was working in her front yard. The victim’s body was thrown across her yard and across a driveway before it landed in a neighbor’s yard forty-six feet from the point of impact. The victim died as a result of the extensive injuries she sustained from the collision.

Just prior to the collision appellant’s station wagon was seen “fishtailing and ricocheting back and forth from one side to the other.” The automobile was traveling “like it was out of control” and was exceeding the speed limit. There was no indication that appellant applied his brakes either before or after impact with the victim. The station wagon came to rest “several houses down” the street.

The appellant was described as being “intoxicated” and “staggering maybe somewhat” at the scene. Two or three empty beer cans were found inside appellant’s station wagon as well as an unopened bottle of whiskey. Appellant volunteered to police officers at the scene that he was the driver of the station wagon and that he had “apparently blacked out or fell asleep momentarily and run off the roadway.” Appellant further admitted that “he had had three or four drinks” and was sleepy.

A blood sample was taken from appellant with his consent approximately three hours after the incident. A laboratory analysis conducted by the Department of Forensic Sciences revealed that the ethyl alcohol level in appellant’s blood at that time was .13 percent. State Toxicologist Laura T. Shevlin testified that if the blood sample had been taken at the time the incident occurred, the ethyl alcohol level in appellant’s blood would have been between 0.16 and 0.19 percent.

At approximately 2:20 P.M. on the day following the homicide, appellant made a voluntary statement in which he admitted that he was intoxicated at the time his station wagon struck the victim. Appellant stated that he had been drinking during the course of the day.

After the State rested its case appellant testified in his own behalf that his prior statement regarding the incident was essentially correct. He further stated that he did not eat anything on July 29, that he had last eaten around 3:00 or 4:00 P.M., on July 28. Appellant admitted that he had been arrested at least four other times for “DUI or DWI.”

Appellant admitted once again that he had been drinking throughout the day prior to the incident, and that he “knew it was against the law to get in that condition and get out on the road.” Appellant concluded that the wreck had occurred because “either I fell asleep or passed out one.”

I

The sufficiency of the State’s evidence is raised for the first time on this appeal. Appellant made no motion to exclude the State’s evidence, there was no request for the affirmative charge, and, although a motion for new trial was filed, the sufficiency of the evidence was not challenged. Therefore, we have nothing to review on this issue. McGee v. State, 383 So.2d 881 (Ala.Cr.App.) cert. denied, 383 So.2d 884 (Ala.1980), and cases cited therein.

Moreover, even if the alleged error relating to the sufficiency of the evidence had been timely preserved, it is settled that, in appropriate circumstances, a homicide committed by an intoxicated driver of an automobile may be murder. Langford v. State, 354 So.2d 313, 315 (Ala.1977); Reed v. State, 25 Ala.App. 18, 142 So. 441 (1932). The commentary following Section 13A-6-2 makes specific reference to Reed, supra, as being an example of when the application of § 13A-6-2(a)(2) would be proper. From the evidence that was presented in this case, we cannot say as a matter of law that the application of § 13A-6-2 was improper.

II

There was no error in the admission of two partially nude photographs of the victim which depicted the location and severity of her fatal injuries. The law on this matter is detailed fully in Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981).

Further, appellant’s objection to the photograph of the unopened whiskey bottle was sustained by the trial court and it was not admitted into evidence. Therefore, there was no adverse ruling from which to appeal. Speigner v. State, 369 So.2d 39 (Ala.Cr.App.), cert. denied, 369 So.2d 46 (Ala.1979).

III

The appellant complains that the trial court abused its discretion in sentencing appellant to fifty years’ imprisonment. In Alabama “[mjurder is punishable by imprisonment in the penitentiary for not less than 10 years to life.” Ala.Code § 13A-6-2(c) (Supp.1977). Appellant’s sentence falls within the statutory limits. Under these circumstances this court has no jurisdiction to review this matter. Jenkins v. State, 367 So.2d 587, (Ala.Cr.App.1978), cert. denied, 367 So.2d 590 (Ala.1979), and authority cited therein.

IV

Appellant next argues that the trial court committed reversible error by denying his motion for new trial based upon newly discovered evidence.

At the hearing on the motion for new trial appellant presented a witness, Ms. Betty Helms, who testified, in essence, that on the day of the incident she saw a pothole approximately two feet in diameter and six to ten inches deep in the northbound lane of South Park Street about a block or a block and a half from the scene of the accident. The pothole had been in the road for at least two weeks.

Ms. Helms testified that the following morning she noticed “two squad cars ... guarding the hole.” Around 4:00 P.M. that afternoon she observed that the pothole had been repaired. Ms. Helms related her observations concerning the pothole to appellant’s counsel after reading about appellant’s sentence in the paper. Ms. Helms did not report her knowledge about the pothole until after appellant’s conviction, because she “did not know who to contact.”

From the testimony given by Ms. Helms, it cannot be said, as a matter of law, that the trial court abused its discretion in denying appellant’s motion for new trial. The decision to grant or refuse a motion for a new trial rests largely in the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Watson v. State, 389 So.2d 961, 965 (Ala.Cr.App.1980).

The Alabama Supreme Court in Taylor v. State, 266 Ala. 618, 97 So.2d 802 (1957), set out the following requirements which must be established for an accused to be entitled to a new trial based on newly discovered evidence:

“(1) That the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching.” 97 So.2d at 804. See also, Bland v. State, 390 So.2d 1098, 1102 (Ala.Cr.App.), cert. denied, 390 So.2d 1109 (Ala.1980).

Notwithstanding appellant’s argument that the condition of the roadway was material and that the existence of the pothole and its subsequent repair could not have been discovered prior to trial by the exercise of due diligence, we are not persuaded that this new evidence would probably have changed the result if a new trial had been granted.

There is no hint anywhere in the record that appellant’s station wagon hit the pothole prior to the collision. The pothole was in the northbound lane of the street and appellant was traveling in a southerly direction. The pothole was located a block to a block and a half from the point of impact. By appellant’s own admission, the fatality occurred either because he “fell asleep or passed out one.”

There appearing to be no error prejudicial to appellant’s substantial rights, the judgment of the Houston Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . Ala.Code § 32-5A-194(b)(3) (1975) states that if the amount of alcohol by weight in a person’s blood is “0.10 percent or more” while that person is driving a vehicle, “it shall be presumed that the person was under the influence of alcohol.”


text:
    Michael Earl AGEE v. STATE.
    6 Div. 747.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-239.

      J.T. Simonetti, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Robbery in the first degree; life imprisonment without parole.

Prior to trial, appellant filed a motion to suppress the identification of appellant by the victim, Ms. Betty Strother. Testimony at the suppression hearing established that on January 11, 1981, Ms. Strother was the manager of Grant’s Convenience Store in Birmingham, Alabama, when about 9:00 p.m. two black males entered the store. One of them, whom Ms. Strother identified as the appellant, pulled a gun, said “Give me your money, bitch,” and then took all the cash in the register.

Ms. Strother testified that the store’s lighting conditions were good and that she saw the man with the gun for five to ten minutes and got a good look at his face. He was anywhere from five feet seven inches to six feet tall and had a space between his front teeth. Ms. Strother said that shortly after the robbery Sergeant Howard B. Phelps of the Birmingham Police Department showed her two sets of photographs, but she did not, at either time, verbally pick out a picture of the man who had robbed her.

Appellant’s counsel then asked Ms. Strother to read the following excerpts from her testimony at the preliminary hearing:

“Q Did you pick anyone out of those photographs?
“A Yes, I picked him out.
“Q You thought one of the men in the photograph was the robber?
“A Yes.”

Ms. Strother explained that, at the preliminary hearing, she meant that she was making a mental comparison between the robber’s face and the men pictured in the photographs, but she did not tell Sergeant Phelps that she thought her assailant was pictured.

The witness also stated that on February 12, 1981, she attended a line-up containing six black males at the Birmingham City Jail. Initially, she told Sergeant Phelps that she thought her assailant was number three, the appellant. Sergeant Phelps then directed each of the subjects to step forward, to say “Give me your money, bitch,” and to show his teeth. Ms. Strother then positively concluded that the man who had robbed her was the appellant, and she informed Sergeant Phelps.

Sergeant Howard B. Phelps testified that neither of the two sets of photographs shown Ms. Strother contained appellant’s picture. He stated that he did not at any time, either during the photographic display or at the live line-up, indicate whether a particular suspect was or was not included, or whether he had any idea of who had committed the offense.

The court denied the motion to suppress, and at trial Ms. Strother positively identified appellant as one of her assailants. She stated that although she “thought” — but did not at the time say — that one of the photographs looked like the robber, she asked Sergeant Phelps to bring out some more pictures because she “wanted to be sure.” After the State concluded its evidence, the defense presented several witnesses and then made it known to the court that two of its witnesses were not present. From the record:

“MR. SIMONETTI [Defense Counsel]: Your Honor, as you know, I had two witnesses subpoenaed, one George Spra-gin and one Horace Richardson. They did not show up yesterday and they are now under a writ of attachment. And they are not here right now. And it is my understanding that since they are not here, you wish to proceed.
“I would make a motion, for the record, that we delay proceedings until they can be attached and brought here. And further, that when they are attached and brought here, that I be given a reasonable further delay to talk, particularly to Mr. Spragin, with whom I have had no opportunity to confer at any length. “And that is what I would like to put on the record.
“THE COURT: Did you go out to look for them last night or try to call them or anything?
“MR. SIMONETTI: I tried to call them. I tried to call them numerous times.
“THE COURT: All right.
“MR. SIMONETTI: I left messages, and they are impossible to get in touch with.
“THE COURT: All right. We will go on this morning.
“It may be that they just don’t want to come in or [are] evading you.
“MR. SIMONETTI: Well, that may be the case, Judge, that may well be the case. And that is why they are under writ of attachment.
“MR. COLEE: Were they served with subpoenas?
“MR. SIMONETTI: They were served. They were served.
“THE COURT: All right. We will go on. Have you got anybody else you would like to use?
“MR. SIMONETTI: If it is your intention to proceed, Your Honor, I have no other people that I wish to call besides them.
“THE COURT: All right. We will go on with the arguments.”

I

The trial court did not err in denying the motion to suppress the identification testimony. Even if Ms. Strother’s preliminary hearing testimony is taken to mean that she first identified a photograph of someone other than the appellant as the man who robbed her, this mis-identification did not require the exclusion of her in-court testimony. A victim’s previous mistaken identification affects the weight and credibility rather than the admissibility of her later testimony. See Carter v. State, 406 So.2d 1076 (Ala.Cr.App.1981); Williams v. State, 348 So.2d 1101 (Ala.Cr.App.), cert. denied, 348 So.2d 1105 (Ala.1977); Mitchell v. State, 52 Ala.App. 174, 290 So.2d 241 (1974).

This principle applies whether the witness fails to pick out the defendant or chooses someone other than the defendant. See United States v. O’Neal, 496 F.2d 368 (6th Cir.1974); United States ex rel. Gilliard v. La Vallee, 376 F.Supp. 205 (S.D.N.Y.1974). Accord, Kimbrough v. State, 379 So.2d 934 (Miss.1980); State v. Oliver, 84 Wis.2d 316, 267 N.W.2d 333 (1978).

In view of Ms. Strother’s opportunity to observe her assailant during the robbery, there was no error in allowing her to identify appellant at trial. See Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100 (1973); Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (1972). Any inconsistency between her earlier hesitancy or mistake about the photographic display, and her later certainty in choosing appellant from the line-up, was properly left to the jury to weigh and resolve. See McCay v. State, 51 Ala.App. 307, 285 So.2d 117, cert. denied, 291 Ala. 788, 285 So.2d 122 (1973).

II

Appellant argues that the trial court erred by refusing to continue the trial until his two defense witnesses could be brought in under writ of attachment.

Generally, a court will not be put in error for denying a continuance for absent witnesses in the absence of a showing of what the witnesses would testify. Sparks v. State, 46 Ala.App. 357, 242 So.2d 403, cert. denied, 286 Ala. 738, 242 So.2d 408 (1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650 (1971).

Although appellant made a showing, at the hearing on motion for new trial, of what he expected the witnesses to say, he did not so inform the court at trial. Under these circumstances, the trial court did not abuse his discretion and the motion for new trial was properly denied. See Ala.Code § 15-17-5(a)(6) (1975).

We have examined the issues presented on this appeal and have found no error. The judgment of conviction by the Jefferson Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Eddie Lee WILLIAMS v. STATE of Alabama.
    6 Div. 759.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    As Corrected on Denial of Rehearing Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-203.

      Powell Lipscomb of Lipscomb & Lipscomb, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Eddie Lee Williams was indicted for the intentional killing of Tommy Square in violation of § 13A-6-2, Code of Alabama 1975. The jury found the appellant “guilty of manslaughter as charged in the indictment.” Following a habitual offender hearing, appellant was sentenced to 15 years’ imprisonment.

On February 11,1981, Pauline Oden took her sister, Sharon Williams, to the income tax office in Bessemer. While they were there, Sharon’s husband, the appellant in this case, came into the office. The appellant began to protest the fact that Ms. Williams wished to file a single return. Ms. Margaret Johnson of the income tax service informed the appellant that if his wife wished to file single, he could do nothing about it.

Ms. Oden and Williams left the office shortly to return to their mother’s home. While stopped at a traffic light, the appellant pulled beside them and shouted obscenities at Ms. Oden. When Ms. Oden arrived at her home, she told her boyfriend, Tommy Square, what had happened at the traffic light. Later that night, Mr. Square telephoned the appellant.

The next morning, Mr. Square and Ms. Oden were working in their home. Ms. Violet Square, Mr. Square’s mother, told them to go to the front door because someone was parked in the street blowing their horn. When Ms. Oden and Mr. Square went to the front door, they saw the appellant in his car parked in front of their house. Mr. Square asked the appellant what he wanted, to which the appellant replied, “Man, I don’t appreciate you calling my house last night telling me what I said about that bitch of yours.” Ms. Oden asked Mr. Square not to argue with the appellant and Mr. Square pushed her back into the house. At this point, Ms. Oden went to the kitchen to turn off the stove. While she was there, she heard two shots. She ran to see what happened and when she reached the front of the house, Ms. Square told her Tommy had been shot. As Ms. Oden walked outside, she saw the appellant’s car speed away. She saw Mr. Square bleeding and called the police and ambulance. One of their neighbors, Clarice Cooper, looked out her window when she heard the shots and saw appellant’s car driving away.

Tommy Square was taken to the hospital where he died six days later. The cause of death was determined to be a gunshot wound to the abdomen.

The appellant admitted shooting Mr. Square but stated he did not shoot him intentionally. While the two were arguing at the car, Mr. Square grabbed the appellant with one hand and reached behind himself with the other. The appellant stated he did not see a weapon but became scared, and picked up a gun which was lying on the front seat beside him. He claimed he shot the gun in self-defense, and did not mean to hit Mr. Square.

I

The appellant contends the trial court committed reversible error by refusing appellant’s requested charge number 25. It is unnecessary for this court to review the merits of the appellant’s contention on this issue because of his failure to reserve any exception to the trial court’s decision to refuse the charge at the trial court level. The “automatic exception” rule no longer applies to criminal cases in Alabama. Gullatt v. State, 409 So.2d 466 (Ala.Cr.App., 1981), Allen v. State, 414 So.2d 989 (Ala.Cr.App., 1981), affirmed, Ex Parte Allen, 414 So.2d 993 (Ala., 1982).

Moreover, the trial court properly refused to give appellant’s requested charge because the word care was misspelled therein, so that it appeared as ease in the phrase “standard of care.” Kuhlow v. State, 897 So.2d 165 (Ala.Cr.App., 1980), writ quashed, 397 So.2d 169 (Ala.1981), Akers v. State, 399 So.2d 929 (Ala.Cr.App., 1981). See also Payne v. State, 419 So.2d 286 (Ala.Cr.App.1982).

II

The appellant contends the trial court committed reversible error by improperly admitting testimony as to statements made by Ms. Violet Square to the state’s witness, Ms. Pauline Oden. Ms. Oden testified that Ms. Square said immediately after the two shots, “Mickey, he done shot Tommy.” We find no merit to the appellant’s contention. The testimony was hearsay, but it clearly falls within the spontaneous exclamation or res gestae exception to the hearsay rule. This subject is covered extensively in Gamble, McElroy’s Alabama Evidence § 265.01 (3rd ed. 1977):

“Generally, a person’s statement concerning a startling occurrence, made while he is perceiving the occurrence, or soon after his perception thereof, and while he is under the stress of a nervous excitement created by such perception, is admissible as tending to prove the truth of the matter asserted. A statement of this kind is frequently referred to as a spontaneous exclamation or excited utterance and is an exception to the hearsay rule.
“The statement must be the apparently spontaneous product of that occurrence, operating upon the visual, auditory, or other perceptive sense of the speaker. The declaration must be instinctive rather than deliberative. In short, it must be the reflex product of the immediate sensual impressions, unaided by retrospective mental action.”

Harville v. State, 386 So.2d 776 (Ala.Cr.App., 1980), Bass v. State, 375 So.2d 540 (Ala.Cr.App., 1979).

It, of course, is a startling occurrence to see anyone shot, but such is a far more shocking event where the victim is one’s son. Ms. Square’s statement was a spontaneous response to the act she had just witnessed, and falls within the recognized spontaneous exclamation exception to the hearsay rule.

Furthermore, the rationale of such spontaneous exclamation exception is not limited to statements of the victim or the defendant but extends to bystanders as well. Harville, supra, Bass, supra.

Moreover, a trial judge is given reasonable discretion to determine the question of the spontaneity of a statement, especially in close cases. We therefore conclude that the trial judge exercised his discretion properly, when he admitted the testimony. Lastly, the appellant could not have been harmed by this testimony since he admitted shooting the deceased. Bass, supra.

Ill

The appellant’s final contention is that the trial court committed reversible error by improperly excluding certain testimony of Ms. Pauline Oden on cross-examination. The appellant claims the trial court unduly restricted his right to cross-examine Ms. Oden. “The latitude and extent of cross-examination is a matter within the sound discretion of the trial court and if the trial court determines that a question, or course of questions, is irrelevant to a material issue in such case, this court will not reverse that determination unless the record reveals a clear abuse of such discretion.” Weaver v. State, 407 So.2d 568 (Ala.Cr.App., 1981), Renfroe v. State, 382 So.2d 627 (Ala.Cr.App., 1980), writ denied, 382 So.2d 632 (Ala.1980), Daniels v. State, 375 So.2d 523 (Ala.Cr.App., 1979). We have carefully reviewed this record and find no abuse of discretion by the trial court in this regard.

Therefore, the judgment of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


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

text:
    Terry Floyd WORD v. STATE.
    8 Div. 560.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-214.

      William J. Underwood, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK,. Retired Circuit Judge.

Appellant was tried on an indictment charging him in two counts with the murder of Ricky Andrew Vinson by shooting him with a shotgun. A jury found him guilty of manslaughter. The court fixed his punishment at imprisonment for six years and sentenced him accordingly.

The undisputed evidence was to the effect that the alleged victim was killed by buckshot fired from a shotgun by some person on a truck near the victim’s home on the night of September 14, 1980, and that appellant was on the truck with four other persons at the time. He denied firing the weapon on the occasion, and there is little, if any, basis for an inference from the evidence to the contrary. The controverted issue between the parties on the trial was chiefly whether he was an accomplice of the one on the truck who did fire the fatal shot. Several witnesses testified as to the circumstances of the incident, including appellant and the four others on the truck with him, one of whom was Mason Gibson, who testified on call of the State and who had been previously convicted of manslaughter of the alleged victim. Mason Gibson admitted that he either invited or permitted the others to go with him on the trip to the vicinity of where the alleged victim lived, and further testified that he was undertaking to find the number of the tag of an automobile from which some people had been firing weapons near him and otherwise molesting him. He further admitted that he fired a shotgun at or about the time the alleged victim was killed and the alleged victim’s wife was hit by some shot from a shotgun. Although defendant’s testimony in the case perhaps made a better case for him than a written statement he made to officers soon after his arrest as to his asserted innocence of any intention to join in any effort to shoot or kill any human being, his written statement, which was introduced in evidence by the State, contains a more condensed recital of the incident and the foregoing and succeeding circumstances, and for that reason it is here quoted:

“On Sunday night September 14, 1980, I was at Stanley Lawrence’s house in Limestone County. Present at Stanley’s house were Stanley Lawrence and his wife, Doug Tucker, Rex Howard, Charles Ray Gibson, Mason Gibson, Joyce Gibson, Cindy Gibson, Den Den Gibson and myself. Shortly after dark the phone rang on several occasions. The caller was supposedly calling Stanley Lawrence, Mason Gibson and his kids white trash. We hung around the house for a while. At about 9:30 or 10:00 P.M. we heard a car from the hill above Stanley Lawrence’s house. We talked around for a while and decided to go to the Salem Skating Rink. Mason Gibson, Charles Ray Gibson, Rex Howard, Doug Tucker and I got into Mason Gibson’s red Chevrolet pickup and started toward the Salem Skating Rink. Mason Gibson, Rex Howard and I was in the back of the pickup. Doug and Charles Ray was in the front. I think everyone but Charles Ray Gibson had a gun. I’m not sure whether or not Charles Ray had a gun. Charles Ray Gibson was driving the truck. I had a 12 gauge single barrel shotgun, Mason Gibson had a 12 gauge or 410 gauge shotgun, Rex Howard had a 410 gauge shotgun and Doug Tucker had a 410 gauge shotgun. My gun was unloaded. I’m not sure any of the others was loaded. We carried the guns because the people from the skating rink had been coming to Mason’s house and shooting at them. We had the guns with us for protection. We were afraid the people would shoot at us. We went to the skating rink at about 11:00 P.M. I’m not sure of the exact time. We came in off Highway 99 and started circling the parking lot at Salem Skating Rink. We had almost made it out of the parking lot when Mason Gibson hollered out ‘If I’m white trash, you are black trash.’ As Mason hollered this out there was three shots fired from Ricky Vinson’s trailer that was parked in the skating rink lot. Mason Gibson picked up his gun and fired up toward the Vinson trailer in the air. Mason fell down in the back of the truck from the recoil of the gun. When Mason fired back someone came from behind a light pole in front of the trailer and started running toward Leo Michael’s house and started shooting at us. There was also some shots fired from across the road. When the man running from the trailer started shooting at us Mason Gibson raised his gun and shot two more times into the air toward the trailer. There was also someone near the electric plant behind the skating rink that was shooting at us. There was also someone behind the light pole in front of us shooting at us.
“There was just two other shots fired out of the truck. Rex Howard shot once in the air and Doug Tucker shot once in the air. I didn’t pick up my gun.
“There was 6 or 7 people at the skating rink shooting at us. After leaving the skating rink we went to Mason Gibson’s house and hid the truck. We got into an old 4 door Chevrolet and went to Stanley Lawrence’s house. We took the guns there and left them.
“When we went into Stanley Lawrence’s house Joyce Gibson told us someone had been shot at the skating rink. We didn’t know anyone had been killed. Someone said we had better go because the law would be here in a minute. Mason Gibson got a phone call and the caller told him to come over to Lonie Gibson’s and they would pick him up and carry him to jail because they had heard the law was looking for him. Doug Tucker and I went out and hid in the weeds at the side of the house.
“The people at the skating rink were shooting rifles and pistols. I think the rifles were automatic.
“I have read the above statement and the facts contained are true to the best of my knowledge.”

The statement was signed by appellant and witnessed by two officers on September 16, 1980.

Appellant was nineteen years of age at the time of the incident upon which the prosecution herein was commenced. He was questioned on cross-examination by the State as to a “conviction” on August 29, 1980, of third degree theft. He replied that he “couldn’t say it was third degree” but that he was convicted of theft. Appellant urges as error that the State should not have been allowed to show such previous conviction, which it did on cross-examination of defendant, for that he was at the age of a youthful offender at the time of his commission of theft in the third degree and that he did not have counsel at the time of his conviction. As to the first ground, it does not appear from the record proper or from the transcript of the proceedings that defendant was tried in the theft case as a youthful offender. In that state of the record proper and the transcript of the proceedings, it cannot be said that the judgment in the theft case was an adjudication as a youthful offender as distinguished from the judgment in a case that was not handled as a youthful offender proceeding and as to which the confidentiality of youthful offender proceedings does not apply. Daniels v. State, Ala.Cr.App., 375 So.2d 523, 526-527 (1979).

Appellant’s other ground for challenging the court’s action in permitting evidence of defendant’s previous conviction, viz., that he was not afforded an attorney at the time, is equally not well taken, in view of the fact that his conviction was for a misdemeanor and his punishment consisted of a fine as distinguished from imprisonment. The constitutional right to counsel extends to misdemeanor cases involving the loss of liberty. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). However, the constitutional right to counsel does not extend to misdemeanor cases unless the defendant is actually sentenced to jail. Lake v. City of Birmingham, Ala.Cr.App., 390 So.2d 36, 38 (1980), citing Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 56 L.Ed.2d 383 (1979).

Another contention for a reversal is that the court committed error “in not allowing appellant to explain his prior conviction.” Appellant argues that he “should have been able to show why he pled guilty” that the “reasoning would fall on the age of the defendant at the time of the first conviction.” The only rulings shown by the transcript of the evidence adverse to defendant in any way connected with the defendant’s effort to “explain his prior conviction” or to “show why he pled guilty” are found in the first part of the redirect examination of the defendant as follows:

“Q. And what were you charged with stealing?
“A. A watermelon.
“MR. SANDLIN: Judge, we object to the details.
“THE COURT: Well, I think the details are probably not admissible so I think I would have to sustain it.
“Q. (By Mr. Hunt) Were you given a jail sentence in that case or fined?
“A. Pined.
“MR. SANDLIN: Judge, we object to the details.
“THE COURT: There again the objection would be due to be sustained.
“Q. (By Mr. Hunt) Did you have an attorney on that occasion?
“A. No, sir.
“MR. SANDLIN: Your Honor, again we object to the details.
“THE COURT: I’ll allow the question whether he was represented by attorney or not.
“Q. (By Mr. Hunt) Did you have an attorney?
“A. No, sir.”

It is to be seen therefrom that in each of the three instances in which an objection was made by the State to a question by defendant, the objection was made after the question was asked, that in each of the two instances in which a ruling adverse to defendant was indicated by the court, the answer was not excluded from the consideration of the jury, and no request was made by the State for the exclusion thereof. We find, in accordance with Watson v. State, 15 Ala.App. 39, 72 So. 569, 571 (1916), and Smith v. State, 40 Ala.App. 393, 114 So.2d 295, 298 (1959), that whatever error, if any there was, in sustaining the State’s objection to the question, the error was without injury to the defendant. In Watson v. State, supra, at 72 So. 571, it was held:

“The witness J.A. Green, in answer to the question asked by defendant’s counsel, ‘If there had been any pistol shot could you have heard it,’ answered, ‘Yes, sir;’ and while objection to the question after it was answered and sustained by the court, the answer was not excluded; and the ruling, if error, was without injury.”

Appellant’s only other assertion of error pertains to a portion of the defendant’s cross-examination of Charles Ray Gibson as follows:

“Q. Did Terry Word have a shotgun when he came to your house?
“A. No, sir.
“Q. Did he get one out of his car at any time there?
“A. No, sir.
“Q. What was the first thing that was said about this Camaro?
“A. Well, it had already been by there, you know, back over there. It was over at my house the night before.
“Q. And do you know whose car that was?
“A. It belonged to the Michaels.
“Q. And do you know which particular Michael?
“A. No, sir, I don’t know which particular one it belongs to, but I know it belongs to one of them.
“Q. That car had been run to your house the night before?
“A. Yes, sir.
“Q. What happened over there the night before?
“A. He pulled down in my drive—
“MR. SANDLIN [State’s attorney]: I am going to object to what happened the night before. It is irrelevant and it is too far removed from the point in time.
“MR. HUNT: [Defendant’s trial attorney]: They went into it on direct and we want to cross-examine him about it.
“MR. SANDLIN: Judge, I didn’t ask any questions about what happened before.
“MR. HUNT: There is some testimony about a Camaro and we want to go into that.
“THE COURT: I think what happened the night before would be irrelevant unless there is some showing it was tied on I would sustain it.
“Q. (By Mr. Hunt): What did the Cama-ro do that Sunday?
“A. That Sunday?
“Q. Yes, sir.
“A. Well, he was over there around that church house, you know, up behind Stanley’s house. They had been parking their cars over there and coming down through the woods and shooting at us one night.
“Q. What night was that?
“A. That on a Tuesday night a week or so before.
“Q. And there had been shooting on this particular Sunday?
“A. No, sir.”

We find no error prejudicial to defendant in the conditionally qualified ruling of the court that gave defendant the opportunity to show, if he could, that “what happened over there the night before” was not so disconnected from the issue on trial, and thus not so remote in time as to make it inadmissible in evidence, which defendant’s attorney apparently utilized to the benefit of defendant as fully as possible. In Robinson v. State, DeCarlo J., Ala.Cr.App. 405 So.2d 1328, 1334, cert. denied, 405 So.2d 1334 (1981), we find:

“It is our judgment, therefore, that the trial court acted to exclude evidence which appeared to be remote. The exclusion of remote evidence is within the discretion of the trial judge, Hembree v. City of Birmingham, Ala.Cr.App., 381 So.2d 664 (1980), and his decision will not be overturned on appeal in the absence of gross abuse. Gamble, McEiroy’s Alabama Evidence, § 21.01(2) (3d ed. 1977).”

We have considered all issues raised by appellant and find no error prejudicial to defendant as to any of them. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James Lester JOHNSON v. STATE.
    8 Div. 682.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-220.
    W.T. Johnson, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of theft of property in the second degree as defined by Alabama Criminal Code (1981 Cumm. Supp.), § 13A-8-4(a). A proceeding under the Habitual Felony Offender Act was instituted against him, and he was sentenced, after an appropriate sentencing hearing, to imprisonment for twenty-one years.

The only issue raised by appellant is thus stated in his brief, “The evidence was not sufficient to sustain the verdict of guilty of theft in the second degree.” Ap-pellee aptly responds in effect that as there is no motion to exclude the evidence, no request for the affirmative charge and no motion for á new trial is shown by the record proper or the transcript of the proceedings, the sufficiency of the evidence is not subject to review. This has been consistently held in Alabama and as recently as June 8, 1982, in Peoples v. State, Ala.Cr. App., 415 So.2d 1230, with adequate reference to previous cases, which suffices for the rejection of appellant’s only contention for a reversal.

Anticipating the possibility of some showing or that some contention may be made that an invocation of a ruling of the trial court by one of the methods stated in Peoples v. State, supra, and previous cases has been overlooked in the preparation of the transcript, the preparation of the record, or by the writer, we now note that our review of the transcript convinces us that the evidence was sufficient to support the verdict. It shows without dispute that the property alleged to have been stolen was surreptitiously taken and removed from the store in which it was located and while a man and a woman, who apparently were together, were the only persons, other than two employees, in the store. Both of the employees identified the man as the defendant. The defendant did not .testify. The woman in the store, a.friend of the defendant who had lived with him previously, testified that she was present at the time, that defendant was not with her but that a man of the same race as both of them was in the store at the same time that she was. The man fled from the premises about the time one of the employees of the store was in the process of calling the police. Both of the employees were positive as to their in-court identification of defendant, after having previously identified him from a photograph shown to them by officers, with other photographs and without any semblance of suggestiveness. The issue of fact was almost exclusively one of whether the testimony of the employees of the store on the one hand or that of the only other woman in the store was credible, which essentially was one for the jury to decide.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . Added to such methods of challenging the sufficiency of the evidence, since the trial of the instant case and that of Peoples v. State, supra, and of preceding cases, is “Motion for Judgment of Acquittal,” as provided by Rule 12, effective March 1, 1982, of Alabama Rules of Criminal Procedure, Temporary Rules.


author: BOWEN, Judge.

text:
    Elbert MORRIS v. STATE.
    4 Div. 64.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.
    Samuel J. Clenney, III, Abbeville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant pled guilty to murder. Sentence was fifty years’ imprisonment.

The indictment, which was read to the defendant, charged that he “did intentionally cause the death of ... Connie Walker, by shooting him with a pistol.”

The defendant argues that the record does not reflect the factual basis for the guilty plea. In Young v. State, 408 So.2d 199 (Ala.Cr.App.1981), we held that, where the offense is simple and the charge quite specific, the requirement that the trial judge determine the factual basis for accepting the guilty plea may be satisfied by a reading of the charge. “ ‘As long as the factual basis is developed on the record, it may come from several sources.’ ” Yamada v. State, 426 So.2d 906 (Ala.1982).

The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Daniel Ray ASH, Alias v. STATE.
    5 Div. 716.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-229.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant, Daniel Ray Ash, stands charged with the murder of six-year-old Wendy Michelle Mancil. The defendant was seventeen years old at the time of the crime. Pursuant to Alabama Code Section 12-15-34 (1975), the district attorney filed a motion in the juvenile (district) court to transfer the defendant from juvenile court to circuit court for prosecution as an adult. After a hearing, the juvenile court granted the State’s motion and transferred the defendant to the circuit court of Tallapoosa County. The defendant appealed from that order and a trial de novo was had in the circuit court. Rule 28, A.R.J.P. The circuit court rendered judgment granting the State’s motion and ordering the case transferred to the circuit court for criminal prosecution.

The defendant contends that his confession was improperly induced and a search of his residence was unconstitutional. He argues that, therefore, evidence of the confession and search was improperly admitted at the hearing on the motion to transfer in order to establish probable cause to believe that he committed the homicide. He argues that without the admission of this illegal and unconstitutional evidence the State failed to establish probable cause.

“The trial court can grant a motion to transfer only after considering the six factors listed in Section 12-15-34(d) and finding that probable cause exists to believe that the allegations are true.” Gulledge v. State, 419 So.2d 219 (Ala.1982); Duncan v. State, 394 So.2d 930, 932 (Ala.1981). The circuit court complied with Section 12-15-34(f) and considered the six factors there listed in ordering Ash transferred. There is no argument to the contrary. The only issue is whether the confession and search were properly considered in establishing probable cause.

A hearing on a motion to transfer involves a probable cause hearing. Duncan, 394 So.2d at 932. “Such a hearing is not designed to determine the guilt or innocence of the child accused of the crime, but is instead a hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult.” Duncan, 394 So.2d at 932. For this reason, the strict standard of proof beyond a reasonable doubt does not apply. Brown v. State, 353 So.2d 1384 (Ala.1978). “The only standard which must be met is whether a reasonable man would believe the crime occurred and that the defendant committed it.” Duncan, 394 So.2d at 932.

Since strict rules of evidence do not apply in probable cause hearings and because a transfer hearing does not determine the guilt or innocence of the juvenile, latitude is permitted in admitting evidence in a transfer hearing which would be otherwise inadmissible in a criminal prosecution. Winstead v. State, 371 So.2d 418 (Ala.1979) (A voluntary confession of a defendant is admissible in a transfer proceeding even though no attorney was present at the time the confession was made); Vincent v. State, 349 So.2d 1145 (Ala.1977) (The uncorroborated testimony of accomplice is a sufficient basis for a finding of probable cause); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1970) (The uncorroborated testimony of an accomplice is admissible); Gulledge (Hearsay evidence may properly be considered).

With regard to confessions, statements, searches and seizures involving juveniles, Section 12-15-66(b) provides:

“An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding shall not be received in evidence over objection. Evidence illegally seized or obtained shall not be received in evidence over objection to establish the allegations against him. An extrajudicial admission or confession made by the child out of court is insufficient to support a finding that the child committed the acts alleged in the petition unless corroborated by other evidence.”

Consequently, before evidence of the defendant’s confession and the search of his residence could properly be introduced into evidence, over the objection of defense counsel, this evidence must have been constitutionally obtained.

On Saturday morning, May 29, 1982, Wendy Mancil was reported missing. Her body was found three days later on the morning of June 1, 1982. A postmortem examination classified her death as homicide and listed the cause of death as “ligature strangulation”. The child’s body was found on the property of Rev. and Mrs. Ash, the defendant’s parents, and within one mile of her residence.

Mike Sullivan, an investigator with the Alabama Bureau of Investigation, Department of Public Safety, became involved in the investigation of the missing child on Sunday, May 30. At the request of members of the Tallapoosa County Sheriff’s Office he began interviewing “the neighbors that lived in that area.” Sometime after 2:00 o’clock Sunday afternoon he talked with the defendant for “30 or 45 minutes” at the Carrville Police Department.

After Wendy’s body had been found, law enforcement officials (Chief Dan Stalnaker of the Carrville Police Department, Deputy District Attorney Mitchell Gavin and Investigator Wayne Chase with the District Attorney’s Office) came to the home of Edgar Lambert, the defendant’s father-in-law around 1:00 or 1:30 o’clock on the Tuesday afternoon of June 1st. Investigator Chase told Rev. Martin Ash, the defendant’s father, that they wanted to talk to the defendant because he had been the last person to see Wendy alive. Earlier that day, before the police arrived, the defendant and his parents had learned that Wendy’s body had been found on the Ash property. One of the law enforcement officials told Rev. Ash that they wanted him to come with them. The defendant and his father were then taken to the Sheriff’s Office in the County courthouse.

Rev. Ash testified that Investigator Sullivan advised the defendant of his Miranda rights and afterward the juvenile probation officer “point(ed) out some things.” Sullivan stated that he did not give such advice. However, Eddie Lancaster, the Juvenile Probation Officer for Tallapoosa County, testified that he advised both Rev. Ash and the defendant of their rights around 3:00 o’clock P.M. when they signed a notification of rights form.

Rev. Ash testified that when he signed the waiver of rights form, he told Sullivan and Lancaster that, if the defendant was being accused of anything, he wanted an attorney. Sullivan stated that, although he did not remember Rev. Ash’s exact words, he told Ash that the defendant was not being accused by him at that time. Sullivan also testified that Ash “asked and inquired about a lawyer and he was told that would be left up to him if he wanted a lawyer or not, but his son was not being accused at that time.”

Lancaster also remembered Ash saying something about a lawyer and stated that in response to that inquiry, Ash was told that, if he would like a lawyer, “one can be provided right now.”

Rev. Ash also testified that when he stated that he wanted a lawyer if the defendant was being accused of anything he was told “we have a Juvenile Officer right here, and the Juvenile Officer will protect all of Danny’s rights. That that’s what he is here for, he is going to protect Danny’s rights.” Lancaster testified that no one ever stated that an attorney was not necessary.

The waiver form was signed at 3:00 o’clock P.M. by both the defendant and Rev. Ash. The questioning of the defendant by Investigator Sullivan then started and lasted approximately one hour. Lancaster was present, with the defendant, during the entire period of this questioning.

After a break in the questioning, Investigator Jimmy Abbett of the Alabama Bureau of Investigation began questioning the defendant at 5:27 P.M. Between these two interviews the defendant was with his wife and the juvenile officer. There was no law enforcement officer in the room at that time. Lancaster testified that, when the defendant asked to see his wife, he went and got her. Lancaster also stated that the defendant never asked to see his father or an attorney. After the first interview by Sullivan, the defendant asked Lancaster “not to let Mike Sullivan back in and talk to him anymore” but did not state the reason for this request. The defendant initially admitted the killing to Lancaster.

Investigator Abbett advised the defendant of his constitutional rights. The defendant signed a second waiver of counsel form at 5:30 P.M. He then gave a written statement which he signed at 6:55 P.M. Lancaster was also present during this interrogation.

In his confession, the defendant stated that he played “cowboys and Indians” with Wendy and that he remembered tying her hands and feet with nylon cord. The next thing he remembered was “seeing a cord around her neck” and checking the child to discover that she was dead.

Sometime before 6:55 P.M., Assistant District Attorney Gavin told the defendant’s parents that the defendant had confessed. Rev. Ash did not request an attorney at that time.

Both Rev. and Mrs. Ash testified that after 4:30 P.M. Rev. Ash repeatedly asked but was not allowed to see his son. They stated that Assistant District Attorney Ray Martin kept telling them to “wait a few minutes ... just a few minutes more.” This was in direct conflict with Martin’s testimony that “on several occasions” Rev. Ash asked “how much longer any questioning was going to go on” but on only one occasion did Rev. Ash request to see his son: “I do remember him one time asking me, or telling me, or asking me if he could see Danny, and at that time, we did go downstairs.”

Lancaster testified that “(a)t the times that I spoke with (the defendant), and the conversations I carried on, I considered him an adult in conversations.” He stated that in his judgment the defendant’s emotional maturity was “stable” and “above average” and that the defendant was “very bright” and “carried on conversations ... way above the level of a juvenile his age.” He saw nothing to indicate or suggest that the defendant “was in any way incapacitated or had any problems, physical, mental or emotional.”

When the crime was committed, the defendant was within two months of his eighteenth birthday. He was married in November of 1981, and his wife was nineteen years old. He did not graduate from high school because he lacked one-half credit in English.

Within one month after the crime was committed, the defendant was given a social, psychological and educational evaluation at the Diagnostic and Evaluation Center of the Alabama Department of Youth Services. Those studies revealed that the defendant was “currently functioning in the high-average range of intelligence”; that while not psychotic, he did appear to have “emotional problems of a longstanding nature * * * * which appear related to his strong aggressive and sexual impulses which conflict with parental expectations and his own moral standards.” The defendant reported having no memory of murdering the child. The report found that while this “amnesia appears to be psychogenic in nature, organic factors cannot be conclusively ruled out at this time.”

The Alabama Rules of Juvenile Procedure “govern the procedure for all matters in the juvenile court.” Rule 1, ARJP. Rule 21, ARJP, provides that “(a)n extrajudicial statement made by a child may be admissible if given by the child in accordance with the requirements of the Constitution and the prevailing case law as expressed by the appellate courts.” See also Section 12-15-66. Since Rule 21 became effective on March 1, 1982, it applies to the defendant’s confession of June 1, 1982.

Alabama Code 1975, Section 12-15-67, requiring that “(u)nless advised by counsel, the statements of a child ... made while in custody ... shall not be used ... in a criminal proceeding prior to conviction”, was specifically repealed by Acts 1981, No. 81-344, p. 500, effective April 29,1981, and has no application.

A great deal of the evidence concerning the voluntariness of the confession is conflicting. Consequently, the finding of voluntariness must be upheld unless palpably contrary to the weight of the evidence. Woodson v. State, 405 So.2d 967 (Ala.Cr.App.), cert. denied, Ex parte Woodson, 405 So.2d 969 (Ala.1981); Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 347 So.2d 1377 (Ala.1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978).

“(I)t is not unusual for the voluntariness inquiry to present conflicting evidence .... When such a conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal , unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence .... Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty.” McNair v. State, 50 Ala.App. 465, 470, 280 So.2d 171 (1973) (citations omitted).

The most serious question in regard to the voluntariness issue concerns the father’s request for an attorney for the defendant if the defendant was being charged. The contention that the defendant’s father was refused admission to see his son is contradicted by other evidence. The defendant was within two months of legally being an adult. Section 12-15-1(3). He was of above average intelligence. There is no evidence of coercion or lengthy interrogation. He was twice advised of his constitutional rights and signed two written waivers. There is no evidence that the defendant was forbidden to contact his family and there is evidence that he was allowed to see his wife, the only person he requested to see. There is no evidence of coercion or threatening. Although there was testimony that the defendant asked that Sullivan not question him a second time, there was no evidence of intimidation. There was conflicting evidence on whether or not the defendant was held incommunicado but no evidence the defendant was denied any request he made to see anyone. Before and when the defendant signed a written waiver he was with his father, who also signed a waiver after both men had been advised of their rights. See Breshers v. State, 572 P.2d 561 (Okl.Cr.1977). Compare Myles v. State, 354 So.2d 842 (Ala.Cr.App.1977).

In Alabama, there is no requirement that the juvenile’s parents be notified before or be present when the juvenile waives his constitutional rights. Likewise, there is no statute mandating the presence of a parent, guardian, legal custodian or attorney of a child during interrogation.

There is no evidence that the defendant was subjected to the hostile and threatening and coercive type of interrogation found in Garrett v. State, 369 So.2d 833 (Ala.1979).

There is no evidence that the confession or waiver of rights was obtained by any type of improper inducement. The police took the defendant into custody for questioning because he was the last person to have seen the missing child alive. There is no evidence that the defendant was being charged at that time or that the authorities intended, before the questioning ever started, to bring charges at a time in the future. Although the defendant must have been considered a suspect because he was the last person to have seen the child, the defendant and his father were informed of this fact. There is no evidence that the police had sufficient information to constitute probable cause to arrest the defendant for murder prior to his confession. Additionally, the assurances that the defendant was not being charged with anything do not appear to have been false statements or deceptions employed by the officers in order to secure a waiver and confession. People v. De Flumer, 21 App.Div.2d 959, 251 N.Y.S.2d 814, affirmed, 16 N.Y.2d 20, 261 N.Y.S.2d 42, 209 N.E.2d 93 (1965). Compare Re L., 29 App. Div.2d 182, 287 N.Y.S.2d 218 (1968) (confession of 14-year-old inadmissible in homicide case where, among other factors, his mother was not advised of her son’s right to counsel and was told that she need not accompany him to the station because the questioning was “not a serious matter”); Myles, supra.

Upon the question of the admissibility of a confession, each case must rest upon its own peculiar details and circumstances. Johnson v. State, 242 Ala. 278, 5 So.2d 632, cert. denied, 316 U.S. 693, 62 S.Ct. 1299, 86 L.Ed. 1763 (1942). Generally, on the admissibility of a minor’s confession, see Anno. 87 A.L.R.2d 624 (1963). An important factor to note in determining the voluntariness of the confession is the fact that the defendant first admitted the murder to Lancaster. See Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977).

We have examined the totality of the circumstances surrounding the defendant’s confession. We find that the confession was voluntarily given after a knowing and intelligent waiver which passes constitutional muster.

II

For approximately six weeks prior to the homicide, the defendant and his wife had been living in a “fallout shelter” behind the residence of Edgar Lambert, the defendant’s father-in-law. Based on the information contained in the defendant’s statement, Investigator Abbett obtained a search warrant for the defendant’s residence. The search began around midnight on June 1st.

Abbett also obtained consent to search the residence. The defendant signed a consent to search at 10:37 on the night of June 1st. Mr. and Mrs. Lambert and their daughter, the defendant’s wife, signed a consent form at 11:57 that night. Although it is argued that the parties were asleep immediately before signing and this prevented a voluntary consent, there is no evidence to support this allegation.

Our review convinces us that the State established a prima facie case that the Fourth Amendment protection from war-rantless searches and seizures was waived by a voluntary consent. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Although there was testimony that the fallout shelter was searched before the child’s body was found, it appears that at least one of these searches was in the defendant’s presence and at his invitation. Moreover, any search of the defendant’s residence before the body was found and before the confession appears to have been solely in an attempt to locate the missing child. There is no evidence that the purpose of any such search was to seek information which could be used to incriminate anyone. A warrantless search of premises may be undertaken upon reasonable cause to believe that those premises contain individuals in imminent danger of death or serious bodily harm. W. LaFave, Search and Seizure, Section 6.5(d) (1978).

Ill

The defendant’s confession was self-verifying and corroborated by the physical details of the crime itself and the location of the child’s body. The circumstances of the homicide are such that only the perpetrator would have had knowledge of the details of the crime. Probable cause to believe that the defendant committed the acts alleged in the transfer petition is not supplied by the defendant’s uncorroborated confession.

After a review of the record, we find no error in the order of the circuit court transferring the defendant for criminal prosecution. . The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.

      . The order of the circuit court granting the State’s motion to transfer the defendant to the circuit court for prosecution as an adult is as follows:
      “The State heretofore petitioned the Juvenile Court to transfer the above Defendant to the Circuit Court for prosecution therein, and the Juvenile Court granted said petition and entered an order to that effect. From said order, Defendant appealed to this Court for trial de novo on the State’s petition.
      “All parties in open Court agreed that the transcript of the proceedings in the Juvenile Court would be admitted into evidence and that this Court could consider all testimony and other evidence contained in said transcript as if the same had been presented before this Court. In addition, it was agreed that each party could present such other or further evidence before this Court as they saw fit.
      “After considering all the evidence before the Court (both the transcript from the Juvenile Court proceedings and testimony ore tenus before this Court), this Court makes the following findings:-
      “1. That the present alleged offense is a brutal, heinous homicide;
      “2. That the Defendant physically is mature, and that he is mentally and emotionally above average for his age;
      “3. That it is in the best interest of the community that the State’s petition be granted and that Defendant be placed under legal restraint and discipline;
      “4. That there are no reasonable grounds to believe that Defendant is mentally ill or retarded, or that he should be committed to an institution or agency for the mentally retarded;
      “5. That there is probable cause for believing that the Defendant committed the alleged offense, and that the allegations in the State’s petition are otherwise true and correct;
      “6. That it is in the best interest of the public that the State’s petition be granted;
      “7. That Defendant has no juvenile record or criminal record and therefore there have been no previous treatment efforts;
      “8. That Defendant’s demeanor is calm, but alert, and otherwise normal.
      “The foregoing considered, it is the ORDER and JUDGMENT of this Court that the State’s petition or motion to transfer Defendant and this case to Circuit Court for prosecution of Defendant as an adult, is hereby granted.
      “Let a copy of this Order be mailed by the Clerk to Defendant’s attorney of record and to the District Attorney.
      “This 13th day of September, 1982.”


text:
    Earnest A. HOLLAND v. STATE.
    5 Div. 644.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 28, 1983 Alabama Supreme Court 82-207.

      Harry D. Raymon of Raymon, Nathanson & Raymon, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Appellant was indicted for murder in the first degree. He was alleged to have driven his automobile against another automobile in which the deceased was riding. Appellant pleaded not guilty by reason of insanity. A non-unanimous jury found appellant guilty of manslaughter in the first degree. A motion to set aside the verdict as non-unanimous was granted. A second trial was held. At that trial, the appellant was found guilty of manslaughter and sentenced to four years, with six months to be served in the Macon County jail, and the balance on probation.

A car driven by appellant collided with a car occupied by the deceased, Bonita Smith, on a Tuskegee highway. There was evidence at the trial that appellant’s car was traveling at a high rate of speed immediately prior to the collision.

Appellant’s defense was insanity. He claimed that a “personal Elegance Seminar” he attended in Florida prior to the accident led to his mental illness. Testimony presented indicated that immediately prior to the accident and after the seminar, appellant was alternatingly friendly and disrespectful and, according to his mother, acted strangely. He listened continuously to a tape made at the seminar, suffered from insomnia, heard voices, and drove his car at an excessive speed on at least one occasion prior to the collision herein discussed.

Subsequent to the collision, appellant claimed that he was God. A blood test for intoxication, taken at the time of the accident, was found to be negative.

I

Appellant claims that the indictment is insufficient, because it does not allege any specific action on appellant’s part showing recklessness. We find this argument to be without merit.

The indictment follows the language of the code section and cites the code section itself (§ 13A-6-2, Ala.Code 1975). It follows the case of Head v. State, 35 Ala.App. 71, 44 So.2d 441 (1950), wherein the requirements of an indictment for manslaughter with an automobile are spelled out.

II

Appellant claims that exhibit one, a school photograph of the ten-year-old victim, was improperly admitted into evidence over his objection. Appellant cites McKee v. State, 33 Ala.App. 171, 31 So.2d 656 (1947), for the rule that photographs should be excluded if they are unnecessary or of little probative value and have the effect of inflaming the jury’s emotions. McKee is distinguished from the case at bar in that McKee involved the admissibility of gruesome pictures produced during an autopsy, and there is little similarity to the facts in this case. The issue is clearly answered by this court’s decision in Jolly v. State, 395 So.2d 1135 (Ala.Cr.App.1981), which allowed admission of a similar inter vivos photograph over a similar objection that such a photograph would inflame the jury. Admission of photographs into evidence is within the sound discretion of the trial judge. Hurst v. State, 397 So.2d 203 (Ala.Cr.App.1981), writ denied, Ex parte Hurst, 397 So. 208 (Ala.1981). We find no abuse of that discretion.

III

The appellant’s claim that a witness must have expert qualifications to testify that an automobile was exceeding the speed limit is contradicted by rulings in Anderson v. State, 40 Ala.App. 509, 120 So.2d 397, cert. denied, 270 Ala. 575, 120 So.2d 414, reversed on other grounds, 366 U.S. 208, 81 S.Ct. 1050, 6 L.Ed.2d 233 (1961); and Goodwin v. Jenkins, 282 Ala. 11, 208 So.2d 210 (1968).

Appellant’s motion to exclude the testimony of witness Fred White was due to be granted. Mr. White testified that he saw an automobile that was traveling “between 65 and 70 miles an hour” run a red light.

He could not recognize or describe the car as appellant’s car, and he could not identify the driver of the speeding car as appellant. It is a fact that many cars today are operated at speeds above the legal limit. The testimony was prejudicial and should have been excluded.

However, the error was harmless as evidence of the speed and recklessness of appellant’s driving was presented by another witness who positively identified appellant. Thus, Mr. White’s testimony was rendered “prejudicially innocuous.” Estes v. State, 358 So.2d 1050 (Ala.Cr.App., 1978), cert. denied, 358 So.2d 1057 (Ala.1978).

IV

Appellant argues that the court should not have sustained two objections to questions posed to witness Julius Horn on cross examination by appellant’s learned counsel.

The first objection sustained was: “When did you first make your information known to the police or district attorney’s office?” The objection was sustained on grounds of relevancy.

The second sustained objection was to the question: “When you were in the military, how did you get time off to go to the race track?”

The latitude and extent of cross examination is a matter which of necessity rests largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse. State v. Howington, 268 Ala. 574, 109 So.2d 676 (1959). We find that the trial court did not abuse its discretion.

V

The trial court has wide discretion to allow the admission of cross examination testimony. We find no error in the admission of testimony as to whether or not a witness attended the funeral of the deceased. An attempt was being made here to show bias. The trial court properly warned the questioner against “straying too far afield,” and allowed the question to stand in the proper exercise of its discretion. Bayne v. State, 375 So.2d 1239 (Ala.1979).

VI

Appellant claims that the trial court committed error by sustaining an objection of the State on the grounds that questioning of appellant’s mother had been repetitious. The record reflects numerous questions responded to by the mother that were nearly identical in language and meaning to the subject question. It was within the discretion of the trial court to sustain the objection.

VII

Appellant claims that information about the collision, drawn from the records of the hospital, should have been admissible. The State correctly cites Liberty National Life Insurance Co. v. Reid, 276 Ala. 25, 158 So.2d 667 (1963), for the rule that hearsay statements in hospital records pertaining to the manner of the injury were not admissible under the Business Records Act.

VIII

The appellant made objection to a question which asked Dr. Jenkins, an expert psychiatric witness, his opinion as to the wisdom of appellant’s family allowing appellant to drive a car in a disturbed state:

“Q. Assuming that when he came back from Florida from the Personal Elegance Seminar, he had started acting unusual around his family and around all of these people, does it make sense to let him drive then to church?
“DEFENSE ATTORNEY: Object to what other people thought.”

The grounds for the objection here stated are improper. The question asked the opinion of the expert witness, and the court was not in error in overruling the objection.

IX

Appellant challenges the action of the trial court in allowing rebuttal testimony by Paralee Smith. The testimony was intended to rebut evidence submitted by witness Darlene Baker that the weather on January 6, 1980, was hot.

Admission of this testimony was properly within the discretion of the trial court. Crow v. State, 365 So.2d 1254 (Ala.Cr.App.1978); Hall v. State, 352 So.2d 40 (Ala.Cr.App.1977). We find no abuse of discretion.

Subsequently, appellant objected to the following charge to the jury: “If any witness has been impeached, then the Jury may disregard that witness’s testimony, unless the witness’s testimony is corroborated by other evidence not so impeached.”

Witness Darlene Baker stated that it was hot on January 6, 1980. This statement was contradicted by a rebuttal witness who stated it was cold on that date. If a witness is impeached only by contradiction, the jury should be instructed to disregard only such portions of the testimony as are controverted and otherwise uncorroborated by other credible and unimpeached witnesses. Stockard v. State, 391 So.2d 1060 (Ala.1980).

However, when a- witness has willfully sworn falsely, and is therefore shown to be unworthy of belief, the jury is entitled to disregard the entire testimony and may be so charged. Stockard, supra. Our law of evidence makes a clear distinction between contradiction by a subsequent witness as to a certain fact and impeachment by a subsequent witness that shows willful falsehoods have been sworn to under oath in an attempt to alter a just verdict. The former calls for the fact finders to use a selective process of disregarding inaccuracies contradicted, while the latter calls for a broader condemnation of all testimony not corroborated.

The incident of impeachment, herein discussed, is an example of the “contradiction” type. The jury was charged in language that, standing alone, might have been understood as an instruction to discount all of Darlene Baker’s testimony. However, the language of the charge was permissive, rather than mandatory. Crumpton v. State, 402 So.2d 1081 (Ala.Cr.App.1981). Elsewhere in its instructions to the jury, the court properly explained the jury’s function in weighing and reconciling conflicts in testimony. When taken as a whole, the court’s oral charge was sufficient and held no reversible error. Carroll v. State, 405 So.2d 163 (Ala.Cr.App.1981); Woodard v. State, 401 So.2d 300 (Ala.Cr.App.1981).

Importantly, the objection to the charge was improper in that the appellant stated as the specific grounds for his objection that there had “been no evidence of any impeachment of any witness.” Evidence clearly meant to impeach part of Darlene Baker’s testimony had been introduced. A specific objection waives all other grounds and the court will not be put in error on grounds not assigned. Andrews v. State, 359 So.2d 1172 (Ala.Cr.App.1978). There was no request for an explanatory charge. Stockard, supra.

X

Appellant complains that the court was in error in refusing to give requested charges numbers 11, 42, 72, 160, 66, 80, and 200, and the affirmative charge. The appellant, however, did not preserve these alleged errors for review by proper objection at the end of the oral charge. Jones v. State, 412, So.2d 1270 (Ala.Cr.App.1982); Jones v. State, 412 So.2d 1247 (Ala.Cr.App. 1982); McCowan v. State, 412 So.2d 847 (Ala.Cr.App.1982); Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d., 414 So.2d 993 (Ala.1982).

The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.