author: DeCARLO, Judge.

text:
    Linda COLEMAN, alias v. STATE.
    8 Div. 617.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.
    Certiorari Denied Dec. 3, 1982 Alabama Supreme Court 81-1028.

      Robert E. Willisson of Willisson & Tucker, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

First degree murder; sentence: life imprisonment.

Mary Crook of Pulaski, Tennessee, testified that the victim, William T. Marsh, was her brother and that she had seen him almost daily for most of his life. She stated that her brother was a kidney patient at Vanderbilt Medical Center and required routine checkups. Crook testified that she last saw her brother alive on January 3, 1979. After the Fayetteville, Tennessee police informed her that her brother’s truck had been found, Crook filed a missing persons report with the Giles County Sheriff’s Department.

Madison County Sheriff’s Department Investigator, A1 Duffey, testified that at 8:45 A.M. on August 3, 1980 he was called to investigate the remains of a body found on Johnson Mountain in Northeast Madison County. Accompanied by Capt. C.W. Owens and reserve deputy Tommy Hooper, Duffey inspected the rocky, heavily vegitat-ed area and found the skeletal remains of a body. Duffey called Roger Morrison of the Department of Forensic Sciences to the scene but by the time he arrived it was too dark to begin an investigation. Duffey had the area secured for the evening.

The next morning Duffey, Morrison and Deputy Parker returned and made a detailed investigation of the area. They gathered numerous bones, deteriorated items of clothing, and a deteriorated billfold containing a plastic Vanderbilt University Medical Center card in the name of the victim. Duffey stated that Morrison took several photographs of the scene, including one depicting a “blue, red and white checked or diamond shaped” homemade quilt, and made a diagram of the area.

Madison County reserve deputy Tommy Hooper testified that on August 3 he accompanied Duffey to the site of the remains of the victim. Hooper stated that he had lived in the area all of his life and hunted in the mountains for twelve to fifteen years. Hooper was familiar with the landmarks of the area and knew of an old house and cemetery located north of the site where the victim was found. He stated that both were located in Madison County.

Hooper testified that the boundary between Madison County and Jackson County, Tennessee was located on top of the mountain where the victim was found. He stated that an old road ran along the top of the mountain on the county line and was east of the site where the victim was found. Hooper stated that the victim was found in Madison County.

Criminalist Roger Morrison testified that he examined the remains and clothing of the victim and discovered a semi-circular “nick” containing minute metal fragments in the first right rib under the collarbone and in the manubrium. Tests were run on these bones under Morrison’s close direction and supervision at the Georgia State Crime Lab in Atlanta. Morrison stated that the tests took about eight hours to complete and revealed minute copper fragments embedded in the “nick” of the rib bone. Morrison stated that the copper could have come from a jacketed bullet.

Columbus Jones testified that for twenty-one years he had served as chief clerical supervisor of the X-ray file division of Vanderbilt Medical Center and was custodian of all X-rays made at Vanderbilt Hospital. At the State’s request, Jones searched his files to determine whether any X-rays of the victim existed. Jones found a file bearing the victim’s name and containing seventy-seven X-rays. The file was the only one bearing the victim’s name under his custody. He identified one X-ray of the victim, State’s Exhibit 13, as having been removed from the file. Jones stated that he did not make the X-rays or know who did.

Forensic Pathologist Dr. Joseph Embry testified that he examined the remains of the victim in order to determine their identity and the cause of death. Dr. Embry compared X-rays of the victim made at Vanderbilt Hospital of his pelvic, shoulder and left collarbone with X-rays he had made of those bones. The comparison left no doubt as to the identity of the remains as those of the victim.

Dr. Embry noted that the “nick” in the rib bone was consistent with the type of injury left by a gunshot wound. He stated that the injury was in existence when the victim was left on the mountain. He noted that the injury could have existed about six weeks prior to January, 1979, although the bone revealed no evidence of healing in the affected area. Dr. Embry opined that the victim died of a gunshot wound to the chest.

Juanita Green testified that she resided in Pulaski, Tennessee, and was acquainted with both the victim and the appellant.

On a Friday night during the Spring of 1979, Ms. Green had a conversation with appellant. They began to talk about the victim and appellant told Green that she had shot the victim on the mountain and her partner, Norman Clack, had emasculated the victim. Ms. Green questioned appellant about “the quilt” and appellant’s response was to ask Green why was she being so “nosey.”

Ms. Green testified that she and appellant had a subsequent conversation. She asked appellant about the victim’s money to which appellant replied that the money was laying on the ground beside him. Ms. Green again inquired about “the quilt” but appellant did not respond. Ms. Green did not discuss the conversations with anyone.

Beverly Crook testified that she also resided in Pulaski, Tennessee, knew the victim, and was a cousin of the appellant.

Sometime prior to May, 1979, Ms. Crook had a conversation with appellant concerning the victim. Appellant had come to Crook’s residence, bringing with her a homemade quilt that she said her sister had made. Ms. Crook stated that appellant became upset and began to cry. Appellant asked Ms. Crook if Crook would help her get rid of a weapon and stated that she would pay her [Crook]. Appellant did not specify the type of weapon. Appellant told Ms. Crook how she and Clack had killed the victim. She told of them riding with the victim in his truck and seeing his money. She stated that the victim begged them not to kill him. Appellant said she shot the victim once and was going to carry him to a doctor, but when he began to bleed from the mouth they “finished him off.”

Appellant told Ms. Crook about the victim’s emasculation by Clack. Appellant stated that they wrapped the victim’s body in a quilt, similar to one that appellant had brought with her when she talked to Ms. Crook, and rolled him into some bushes.

Appellant presented several character witnesses on her behalf and a witness who testified that Ms. Green had told him that the authorities had forced her to testify falsely against appellant. Appellant took the stand and denied having the conversations with Green and Crook, and denied committing the crime.

I

Appellant challenges the sufficiency of the State’s evidence and specifically points to its failure to prove venue.

In a criminal case, proof of venue is sufficient if it can be reasonably inferred by the jury from the facts and circumstances adduced. Segars v. State, 409 So.2d 1003 (Ala.Cr.App.1982). Venue need not be established solely by direct evidence. Evidence from which it is inferrable is sufficient. Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), aff’d, 391 So.2d 677 (Ala.1980); Stokes v. State, 373 So.2d 1211 (Ala.Cr.App.), cert. denied, 373 So.2d 1218 (Ala.1979). Venue may be established by the testimony of one witness. McCrary v. State, 398 So.2d 752 (Ala.Cr.App.), cert. denied, 398 So.2d 757 (Ala.1981); Wilson v. State, 384 So.2d 1243 (Ala.Cr.App.1980).

It is not necessary that proof of the location of a county boundary line be by expert testimony. Such may be proven by general reputation. Nolen v. State, 35 Ala. App. 249, 45 So.2d 786, cert. denied, 253 Ala. 565, 45 So.2d 792 (1950); Melton v. State, 21 Ala.App. 419, 109 So. 114 (1926); See generally Mayes v. State, 22 Ala.App. 315, 115 So. 291 (1928).

As we stated in Stokes, supra, at pages 1216-17:

“When the State offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question of venue becomes one for the jury.... Where there is no evidence of venue it is a question for the court; but if there is evidence of venue and it is in conflict, it is a question for the jury.... The inferences to be drawn from the evidence, when susceptible of more than one rational conclusion, are for the jury and not for this Court to determine.... A verdict on conflicting evidence is conclusive on appeal.... ”
(Citations omitted).

In the instant case, although the exact spot where the victim was killed was not shown by direct evidence, the jury could properly conclude from the evidence adduced that he was killed in Madison County. Consequently, the trial court properly overruled appellant’s motion to exclude on this ground. Harris v. State, 395 So.2d 1063 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1069 (Ala.1981); Ala.Code § 15-2-2 (1975).

II

A careful review of the evidence reveals that the state sufficiently established a prima facie case of first degree murder. Thus, the trial court properly overruled appellant’s remaining grounds on her motion to exclude. Dolvin v. State, 391 So.2d 133 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); Ala.Code § 13-1-70 (1975).

III

Appellant contends that the trial court erred in admitting State’s Exhibit 13, a pelvic X-ray of the victim taken at Vanderbilt Hospital, as it was not properly authenticated.

Columbus Jones testified that the victim’s X-rays taken at Vanderbilt Hospital were made in the ordinary course of business. He stated that it was the regular business of the hospital to make and preserve such. Jones testified that the X-ray became a permanent part of the patient’s record shortly after it was taken. He stated that the records over which he has custody are a true and accurate reflection of the transaction at the time they were made. Jones stated that the X-ray in question was made by an X-ray technologist.

In Austin v. State, 354 So.2d 40, 42 (Ala.Cr.App.1977), cert. denied, 354 So.2d 44 (Ala.1978), we quoted with approval Gamble, McElroy’s Alabama Evidence § 254.-01(3) (3rd ed.1977), which discusses the authentication necessary to properly admit into evidence a business record:

“In order to properly authenticate a business record, any witness (frequently the custodian of the record) must testify: ‘that the document now exhibited to him is a record of the business; that he knows the method (i.e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by the trier of fact to be reasonable.’ ”

Once the above predicate is laid, the record is admissible even though the maker or entrant has no personal knowledge of the truth of the matter recorded. Meriwether v. Crown Investment Corporation, 289 Ala. 504, 268 So.2d 780 (1972); Speigle v. Chrysler Credit Corporation, 56 Ala.App. 469, 323 So.2d 360, cert. denied, 295 Ala. 420, 323 So.2d 367 (1975); McElroy’s, § 254.01(2).

[10] It is clear that the state properly established the predicate for admission of the X-ray into evidence under the business records exception to the hearsay rule. Salotti v. Seaboard Coastline Railroad Co., 293 Ala. 1, 299 So.2d 695 (1974); Billingsley v. State, 402 So.2d 1052 (Ala.Cr.App.1980), rev’d on other grounds, 402 So.2d 1060 (Ala. 1981); Ala.Code § 12-21-43 (1975). Thus, appellant’s contention is without merit.

IV

Appellant argues that the trial court erred in admitting the test results performed on the victim’s rib at the Georgia State Crime Lab. She asserts that since Morrison did not personally perform the tests he could not know whether the instruments were performing properly.

Morrison testified that while he did not personally perform the tests on the rib bone, he was present and directed them. He closely observed every phase of the testing and supervised them. The tests were run by an employee of the Georgia State Crime Lab.

The record is clear that the tests performed on the victim’s rib bone were conducted under the close direction and supervision of Morrison and were performed under conditions which would not impeach the reliability of the testing procedure. The record fully supports the conclusion that the test instruments were properly adjusted and operated. We find no error in their admission into evidence. Dolvin v. State, 391 So.2d 677 (Ala.1980); Whetstone v. State, 407 So.2d 854 (Ala.Cr.App.1981).

V

Appellant contends that the trial court erred in refusing to give six of her written requested charges. Appellant failed to object or except to the refusal of any of the charges. Consequently, she did not properly preserve their refusal for our review. 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), affirmed, 414 So.2d 993 (Ala.1982).

We have examined appellant’s contentions on this appeal and find no error. The judgment of conviction by the Madison Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.

      . Undoubtedly, the quilt to which Ms. Green was referring was the one found at the scene and depicted in a photograph introduced into evidence by the State without objection.


source: Caselaw Access Project

author: BARRON, Judge.

license: Public Domain

text:
    Joe Luther LAFFITY v. STATE.
    8 Div. 660.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.
    Certiorari Denied Dec. 3, 1982 Alabama Supreme Court 81-1032.

      Rodney B. Slusher of Peck & Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BARRON, Judge.

Joe Luther Laffity was charged, tried, and convicted of the September 11, 1981, murder of Blannie Harden. The State, through written notice, invoked the provisions of the Habitual Felony Offenders Act. A sentencing hearing was held, after which appellant was sentenced to life imprisonment without parole. Hence this appeal.

Appellant does not challenge the sufficiency of the State’s evidence.

On the evening of September 10, 1981, appellant drove to Huntsville to borrow some money from his girlfriend, Cora Coleman, who was employed at a local country club. After borrowing the money appellant left but returned a few hours later. Coleman followed appellant to his apartment in Florence and remained there for the evening while appellant went out. He did not return until around 4:00 a.m. the next morning. Throughout this time appellant was drinking and appeared intoxicated.

Around 8:00 a.m. on September 11, 1981, Ms. Coleman awakened appellant and told him that she was going to see her parents in Killen but would return later. She placed her belongings in her car and left. Around 10:00 a.m. she arrived at her parents’ home. About fifteen minutes later she heard appellant and her father, the victim, arguing. Shortly thereafter appellant left.

About five minutes later, appellant called Ms. Coleman and asked her to come to a nearby convenience store. She refused and appellant told her that he was going to get a gun and come get her. After telling appellant to get the gun, Ms. Coleman hung up.

Less than thirty minutes later, appellant returned to the victim’s residence with a shotgun. The victim came from his bedroom to the front door carrying a shotgun in a breeched position. As the victim opened the screen door, appellant fired his shotgun, striking and killing the victim. Appellant fled the scene and was later arrested.

The evidence clearly establishes a prima facie case of murder. Ala.Code § 13A-6-2(a)(2) (Amended 1977).

I

Appellant contends that the trial court erred in refusing to admit into evidence specific incidents of the victim’s violent nature. Appellant made an offer of proof wherein he noted that during 1978 and 1979 Ms. Coleman wrote him three times concerning threats made by the victim on her life and her children’s lives. Appellant requested that he be allowed to cross-examine Ms. Coleman relative to the threats.

Appellant asserts that such would have been relevant to show his apprehension of peril and to the issue of self-defense, which he attempted to establish at trial. Evidence adduced at trial indicated that appellant and the victim had not been on good relations for some time prior to the killing. However, at the time he initially made his offer of proof, no evidence of self-defense had been presented by appellant. He subsequently renewed his proffer prior to resting his case in chief.

The general rules governing the admission of character evidence of the victim are summarized in Bankston v. State, 358 So.2d 1040, 1041 — 42 (Ala.1978):

“Ordinarily, the character or reputation of the deceased in a murder trial is not involved as an issue, and proof relative thereto is generally inadmissible.... Such a rule of law is weighed in the consideration that the law does not distinguish between the killing of an evil person and that of a saintly person.... However, evidence of the character or reputation of the deceased for turbulence, violence and bloodthirstiness should be received when it illustrates or explains words or acts of the deceased at the time of the killing or to show that the killing was in self defense.... The rationale of the rule allowing such evidence is that words spoken or actions taken by a person with a reputation for turbulence, violence, and bloodthirstiness may convey a meaning and intent different from the same words and actions of someone else. Seemingly innocent actions of the deceased may take on a different significance when considered in the light of his or her character.”
“It is well understood that evidence of the deceased’s turbulent, violent, and blood-thirsty character is not competent absent some evidence tending to show that the killing was in self defense; that is, some overt act or hostile demonstration on the part of the deceased.... Such evidence is not available to the defendant if he or she is the aggressor.... However, on all doubtful questions of who is the aggressor, the bad character of the deceased for turbulence and violence should be admitted.... When the evidence of self defense is sufficient to go to the jury, evidence of the deceased’s bad character for turbulence and violence must be accepted.” (Citations omitted).

Evidence of the victim’s bad general reputation for peace and quiet, violence, or like trait is admissible only if the evidence before the trial court at the time such an offer is made tends to establish that the accused acted in self-defense. Thompson v. State, 405 So.2d 717 (Ala.Cr.App.), cert. denied, 405 So.2d 721 (Ala.1981); Huffman v. State, 360 So.2d 1038 (Ala.Cr.App.1977), aff’d, 360 So.2d 1045 (Ala.1978).

However, in Gamble, McElroy’s Alabama Evidence § 63.01(3) (3rd ed. 1977), we find the following:

“In some cases where the accused is relying on self-defense, he will want to show that the victim had previously committed specific acts of violence towards other persons and that the accused knew of such acts. The purpose of such evidence will be to show the accused’s reasonable apprehension of peril. The general rule is that such evidence is admissible if the person toward whom the violence was directed had a very close connection with the accused such that there would be a reasonable apprehension of peril on the part of the accused. It is quite clear that such violence towards other persons is not admissible if it is remote in time or lacks any connection in circumstance with the accused. It would appear, though not ever expressly stated in the cases, that the following are the factors which will be considered by the trial court in exercising its discretion over whether to admit such acts of violence:
“(a) The distance, small or great, between the time and place of the reported former act of violence and the presently charged homicide or assault.
“(b) The presence or absence of a tie of kinship or friendship between the reported victim of deceased’s former act of violence and the accused. Such factor logically indicating whether the accused could reasonably feel that the deceased’s reported hostility would exist against him also.
“(c) The relationship between the accused and the deceased after accused was informed of the former act of violence. If the accused continues to live with or associate with the deceased, then such is a factor against admitting the evidence of violence towards other persons.
“(d) The similarity or dissimilarity of the immediate facts of the presently charged homicide to the facts of the reported former act of violence. The more similar they are the more likely the court is to admit the former act of violence.” (Footnotes omitted).

A complete review of appellant’s offer of proof in light of the above general rules leaves no doubt that the trial court properly excluded it. Thus, we find no error in its ruling. Weaver v. State, 402 So.2d 1099 (Ala.Cr.App.1981).

II

After the trial court’s oral charge, to which there was no exception, the jury began its deliberations. After about forty-five minutes, the jury returned to the courtroom after making the written request, “We need a brief definition of murder, manslaughter, & criminally negligent homicide to study. As to the charge you read from the bench.”

Appellant objected, stating that such would confuse and mislead the jury as well as place undue emphasis on a portion of the court’s oral charge. No ruling on the objection was made. Subsequently, the trial court further instructed the jury consistent with its request and the language of its oral charge by reading the applicable statutes. In addition, the trial court instructed the jury that the giving of the supplemental charge “should not be taken ... as any inference that I believe this defendant is guilty” and instructed the jury not to place any undue emphasis on it and to weigh it equally with its previous charge.

A nearly identical situation arose in Carter v. State, 356 So.2d 682 (Ala.Cr.App.), cert. denied, 356 So.2d 689 (Ala.1978). In answering the issue adverse to the defendant’s contention, this court, at page 688, stated:

“The same question was presented in Tillison v. State, 32 Ala.App. 397, 27 So.2d 41, cert. denied, 248 Ala. 196, 27 So.2d 46 (1946). The Court of Appeals answered the question presented by stating:
“ ‘After the jury had deliberated for a while it returned to the court room for further instruction. The trial judge restated to the jury a portion of his oral charge. Exceptions were taken by appellant. Complaint is made that the trial judge restated a part of his oral charge and in this manner gave added and undue emphasis to said portion.
“ ‘We fail to see how this action on the part of the lower court could in any way interfere with the legal rights of the defendant. We take it that the jury came to a place in its deliberation where it wanted further light and it sought this light from the only source open to it. The law wisely gives this opportunity to a jury which at all times has access to the trial court for legal instruction. Montgomery v. State, 21 Ala.App. 327, 108 So. 348; Roberts v. State, 26 Ala.App. 331, 159 So. 373.’ ”

We find the above quoted language applicable to and dispositive of the instant issue. Consequently, we find no error in the trial court’s action.

III

Appellant contends that the trial court erred in refusing to give his written requested charges 7, 8, and 10 dealing with the defense of self-defense. Appellant failed to object or except to their refusal. Thus, nothing is preserved for our review. 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).

IV

During his direct examination, appellant admitted having been convicted of four prior felonies. At his sentencing hearing, the State introduced, without objection, certified copies of the minute entries of three of the prior convictions. See Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981); Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala. 1981); Ray v. State, 398 So.2d 774 (Ala.Cr.App.), cert. denied, 398 So.2d 777 (Ala.1981); Thatch v. State, 397 So.2d 246 (Ala.Cr.App.), cert. denied, 397 So.2d 253 (Ala.1981).

Appellant’s assertion on appeal that his sentence of life imprisonment without parole constitutes cruel and unusual punishment has previously been answered to his detriment in Lidge v. State, [Ms. 6 Div. 580, Apr. 20, 1982], 419 So.2d 610 (Ala.Cr.App.1982), and Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981). See also Dozier v. State, 415 So.2d 3 (Ala.Cr.App.1982); Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981).

We have examined the issues presented by appellant on appeal and have found no error. This cause is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Patricia Ann CAMPBELL v. STATE.
    1 Div. 346.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 3, 1982 Alabama Supreme Court 82-39.

      James M. Byrd and Thomas M. Haas, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for murder. Alabama Code 1975, Section 13A-6-2. Sentence was thirty years’ imprisonment.

I

The trial court’s refusal of the defendant’s written requested jury instructions numbers 10 and 13 was not properly objected to and preserved for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1982), affirmed, 414 So.2d 993 (Ala.). See Rule 14, Temporary Rules of Criminal Procedure, effective July 16, 1982.

More importantly, a review of the court’s oral charge convinces us that the requested charges were “substantially and fairly” given to the jury in the court’s general charge. Section 12-16-13.

II

The defendant filed a special plea of not guilty by reason of mental disease or defect under Section 13A-3-1. Although there was no evidence that the defendant had been involved in any repeated criminal or otherwise antisocial conduct, the trial court charged the jury, under Section 13 A-3-l(b), that “the term mental disease or defect does not include an abnormality of the. mind which is only manifested by the repeated criminal or other antisocial conduct of a person.”

The giving of an abstract charge which asserts a correct legal proposition does not operate as reversible error “unless it appears that on account of the circumstances of the case and the character of the charge given it was calculated to prejudice.” McPhearson v. State, 271 Ala. 533, 540, 125 So.2d 709 (1961); Traywick v. State, 378 So.2d 1196 (Ala.Cr.App.1979). Although the particular charge was unsupported by any evidence, the record fails to establish any possible prejudice to the defendant.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Terry Wayne McLESTER v. STATE.
    4 Div. 13.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 22, 1982 Alabama Supreme Court 82-69.
    William J. Baxley and Joel E. Dillard of Baxley, Beck & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of robbery in the first degree as charged in an indictment which, omitting the formal parts, charged the following:

“Terry Wayne McLester, whose name is to the Grand Jury otherwise unknown, did in the course of committing a theft of Fifty-five dollars in the lawful currency of the United States of America, the exact denominations of which and a better description of which, are to the Grand Jury otherwise unknown, of the value of, to-wit: $55.00, the property of Sunshine, Jr. Food Stores, Inc., a corporation, used force against the person of Ruth Lewis, with the intent to overcome her physical resistance or physical power of resistance, or did threaten the imminent use of force against the person of Ruth Lewis, with intent to compel acquiescence to the taking or escaping with the property, while the said Terry Wayne McLester was armed with a deadly weapon, to-wit: a knife, in violation of 13A-8^41 of the Code of Alabama.”

According to the undisputed evidence, which included the testimony of the alleged victim, the following occurred:

“[The defendant] Came over the counter, had his hand in his pocket and had a knife that was almost half way opened at that time. He brought the knife out and I said sir — when he came over the counter, I said sir, you are going to have to get out of here or out of this area. Those were not my words, but he said yeah, I am going to leave. And, I said sir, you are going to have to leave. And he said yeah, we are going to leave, we are going to leave together.
“Q. Where was the knife at this time? “A. It was pointed at my side.
“Q. He had it at your side?
“A. Yes.
“Q. He told you that you were going to leave together? Is that correct?
“A. Yes.
“Q. What if anything did you do then? “A. He took me by the arm, headed me to the cash register.
“Q. Did he tell you anything about the cash register?
“A. He said give me all the money.
“Q. Approximately how much money was in the cash register at that time?
“A. About fifty-five dollars, maybe a little more than that.
“Q. And, that was the property of the store there, the Sunshine Jr. Food Stores Inc.
“A. Yes, it was.
“Q. All right. He led you to the cash register. Did he say anything about what would happen to you or anything like that?
“A. He said don’t make me hurt you, is what he said right then.”

In testifying further, the witness said that instead of opening the cash register she “hit the wrong button and turned the signal box off” and about that time another person was coming in the store, who asked for cigarettes, and the defendant left the store “running.”

Alabama Criminal Code, § 13A-8-41, provides in pertinent part:

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

Section 13A-8-43 provides:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.
“(b) Robbery in the third degree is a Class C felony.”

Section 13A-8-40(b) provides:

“ ‘IN THE COURSE OF COMMITTING A THEFT’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”

A sentencing hearing was conducted after appropriate notice that the State was invoking the provisions of the Habitual Offender Act. At the hearing there was undisputed evidence that defendant had been previously, on July 13, 1979, convicted of burglary in more than three separate cases.

Alabama Criminal Code, § 13A-8-41(c), states that robbery in the first degree is a Class A felony. Section 13A-5-9(c)(3) provides that where it is shown that a criminal defendant has been previously convicted of any three felonies and after such conviction is convicted of a Class A felony, “he must be punished by imprisonment for life without parole.” The issues presented by appellant, as stated in his brief, are as follows:

“I
“DID THE TRIAL COURT’S ERRONEOUS REFERENCES TO THE ‘TESTIMONY FOR THE DEFENDANT’ (TWICE) AND THE TESTIMONY ‘OFFERED BY THE DEFENDANT’ (ONCE) DURING ITS ORAL CHARGE, MADE MERO MOTU, CONSTITUTE REVERSIBLE ERROR, WHERE PROPERLY OBJECTED TO BY DEFENSE COUNSEL, WHEN (1) THE DEFENDANT DID NOT TESTIFY, AND (2) THE DEFENDANT DID NOT PRESENT ANY TESTIMONY FROM ANY OTHER SOURCE, WHERE NO CURATIVE INSTRUCTION WAS POSSIBLE.’
“II
“UNDER THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE, DID APPLICATION OF THE HABITUAL OFFENDER ACT VIOLATE THE UNITED STATES AND ALABAMA CONSTITUTIONS?
“HI
“DID THE STATE ADEQUATELY PROVE A MIRANDA WARNING BEFORE INTRODUCTION INTO EVIDENCE OF A KNIFE WHICH WAS THE FRUIT OF A CUSTODIAL INTERROGATION OF THE DEFENDANT?”

We proceed to a consideration of the issues in the order of their presentation.

I

The defendant did not testify in the case, and the defense rested immediately following the case presented by the State. The contention of appellant is directed to portions of the court’s oral charge as follows:

“... And, if after you have weighed and considered all the evidence in the case, that for the State of Alabama and that for the Defendant, Terry Wayne McLes-ter, if there remains in your mind a doubt, a reasonable doubt of this Defendant’s guilt, then, of course, he would be entitled to the benefit of that doubt.
“... But, it does mean after you have weighed and considered all the evidence, all the testimony in the case, that for the State of Alabama and that for the Defendant, if it is then your fixed conviction, your fixed opinion and judgment that the Defendant is guilty, based upon the evidence, then, within the meaning of our law, you are convinced beyond a reasonable doubt.
“Now, ladies and gentlemen of the jury, after you have weighed and considered all the testimony in this case, that for the State, that offered by the State, and that offered by the Defendant, Terry Wayne McLester, of course, you must write your verdict in this case.”

In objecting and excepting to the court’s oral charge, the following occurred:

“MR. BAXLEY: Your Honor, we respectfully object to and except to two portions of the Court’s Oral Charge wherein the Court charged the jury, was charging the jury about reasonable doubt. And each time the Court said that after they had weighed and considered all the evidence, that for the State and that for the Defendant, the second time, the Court said after the Jury weighed and considered all the evidence for the State and that offered by the Defendant, Terry Wayne McLester, we think that by adding in on both occasions the phrase: And that for the Defendant, on one occasion and: That offered by the Defendant, Terry Wayne McLester, on the other occasion, is undue emphasis on the fact that the Defendant did not offer any testimony, and, therefore, is misleading to the Jury. And, they may think the Jury [defendant?] is under some affirmative duty to offer such. And, we respectfully object to and except to that portion of the Court’s Oral Charge.
“THE COURT: Okay. Well, I will tell you the truth, it is innocent if I did. Because, I had forgotten he didn’t offer any testimony, to tell you the truth. I am just used to referring to the State’s Evidence and the Defendant’s. All right. You can bring the—
“MR. SORRELLS: Your Honor, before we bring them back, may I ask if he is asking for any curative instructions in this case?
“THE COURT: No. No.
“MR. SORRELLS: Okay, sir. I wanted to put that in the Record.
“THE COURT: Okay. You can bring the Jury back. I think it is okay, even if he didn’t testify, I don’t think there is anything wrong.”

Although some of the language in portions of the oral charge to which exceptions were taken by defendant were not appropriate in a case in which defendant did not testify, and no witness testified in his behalf, we do not agree with appellant’s argument that such portions of the charge, whether considered together or considered separately, were erroneous to the prejudice of defendant. It is to be noted that in such portions of the oral charge no distinction was drawn between “testimony” and “evidence.” Although no witness was called on behalf of defendant and three witnesses were called on behalf of the State, defendant’s able counsel did not take their testimony lying down. He intensively and expertly cross-examined them and thereby obtained from them evidence that could have caused some jurors to have some doubt as to the accuracy of their testimony on direct examination. We find nothing in any of the cases cited by appellant in support of the position. He relies largely upon Stewart v. State, Ala.Cr.App., 381 So.2d 214, cert. denied, 381 So.2d 220 (1980), and Reed v. State, 47 Ala.App. 617, 259 So.2d 304 (1972). In Stewart v. State, a grand larceny case, the instruction, as quoted at 381 So.2d 220, was, “Insofar as proving the material averments of the indictment if you find from the evidence that the Defendant was in the unexplained possession of property recently the subject of a theft then the State has met its burden and has, in that regard, proven its case .... ” In Reed v. State, supra, the trial court instructed the jury in part as follows:

“If you are convinced beyond all reasonable doubt by the evidence that the property was stolen and further that the defendant was in possession of the property then the defendant has the burden of going forward with the evidence and explaining his possession of the property.”
II

Appellant’s argument under Issue II is in two parts. He says that defendant’s “seven prior burglary convictions should have been treated as a single offense.” He introduced evidence on the sentencing hearing to the effect that he was twenty-two years of age and intoxicated when he “entered the Northside Mall in Dothan by kicking in the door at Martin Shoe Store, and proceeded to break out the windows of other retail stores called The Music Shop, The Hitching Post, The Aesthete, Sports World, Inc., Glawson-Pierce Men’s Store and J. Kil-gores” and thereafter pleaded guilty of burglary in the second degree and was adjudged guilty thereof in seven separate cases in the Circuit Court of Houston County. He argues that the instant case is distinguishable from Seritt v. State, Ala.Cr. App., 401 So.2d 248, cert. denied, 401 So.2d 251 (1981), in which it was held that defendant’s four separate sentences for violating the Alabama Uniform Controlled Substances Act, each entered upon guilty pleas on the same day with the advice of counsel, constituted four separate “convictions” for sentencing under the Habitual Offender Act — even though defense counsel asserted that all four were “growing out of a common event or occurrence as one offense.” He argues alternatively that Seritt v. State should be reconsidered. We fail to see a distinguishing difference between the instant case and Seritt, supra, and we adhere to what was held therein.

Appellant’s argument that mandatory punishment by imprisonment for life without parole under the Alabama Criminal Code, § 13A-5-9(c), is a violation of the constitutional prohibition against cruel and unusual punishment has been recently answered adversely to his contention in Dozier v. State, Ala.Cr.App. 415 So.2d 3, 5 (1982), as follows:

“Appellant also alleges the statute as applied to him is unconstitutional in that life without parole is cruel and unusual punishment in that the sentence is excessive in light of the underlying prior convictions. This argument also is without merit. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied 392 So.2d 1280 (Ala.1981); Thompson v. State, 405 So.2d 717 (Ala.Cr.App.), cert. denied, 405 So.2d 721 (1981).”

Ill

This issue pertains to the introduction in evidence of a knife that was found by Military Policeman John Turner, who had arrested defendant for DUI at Fort Rucker, prior to having any information that he was wanted as a suspect in the instant robbery case. A search of his automobile, which had been secured after defendant’s arrest, was made about forty-five minutes after defendant’s arrest and incarceration and after Officer Turner had learned that defendant was a suspect in an alleged robbery in which a knife had been used. The question now presented was presented by an oral motion to suppress evidence of the knife found in defendant’s automobile by Officer Turner when he returned to the automobile after obtaining defendant’s consent to search the automobile. The court overruled defendant’s motion to suppress after hearing the testimony of Officer Turner and Officer William A. Quinn, a reserve police officer for the city of Daleville, both called as witnesses for the defendant on the hearing of the motion to suppress.

In appellee’s brief as to Issue III, appellee takes the position that when the knife was offered in evidence on the trial, the objection of defendant was not adequate. In appellant’s reply brief, he shows, as his original brief discloses, that he was challenging the ruling of the court on the motion to suppress and was relying upon Thomas v. State, Ala.Cr.App., 370 So.2d 1066, cert. denied, 370 So.2d 1070 (1979), in which it was held at 370 So.2d 1070 as follows:

“The simple question, ‘did you read the defendant his rights as per the Miranda decision,’ does not indicate whether the rights were read before or after questioning, whether the defendant understood the rights and whether he made an intelligent waiver of those rights. Even in cases where officers have attempted to give a detailed Miranda warning, key elements have been left out or misstated, which required reversal. Square v. State, 283 Ala. 548, 219 So.2d 377 (1968).”

The criticism directed at the admission in evidence of the knife in the instant case is materially different from the criticism upheld by the court in Thomas v. State, in concluding that the judgment therein should be reversed by reason of error of the court in the admission in evidence over defendant’s objection, of an inculpatory statement by defendant, without his being advised of his constitutional rights, including those covered by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant says in his brief herein that “the officer in question could only state” the following:

“That he had the right to remain silent. The rights as they are read. I can’t quote them verbatim. I always have a form that I read them verbatim to the witness while he has one that he can read along with you.”

In addition to what Officer Turner testified as quoted above, he testified:

“Q. Did you ask him to sign — before he gave you that consent, did you advise him of his rights?
“A. Yes, sir. He had been advised his rights twice.
“Q. By whom?
“A. I advised him of his rights and the Daleville police also advised him of his rights.
“Q. Did you ask him to sign something to the effect that he had been advised of these rights?
“A. Yes.
“Q. Did he sign anything?
“A. Yes, sir.
“Q. Do you have that?
“A. I don’t have one in my possession. It is with the case file.
“Q. You don’t have that with you?
“A. No, sir. I’m not required to keep it.
“Q. Did you advise him of his rights the time that you had him under arrest for DUI or some later point?
“A. He was advised of his rights before being transported to the Daleville Police Department.”

The testimony of Officer Quinn on the motion to suppress furnished some support to appellant’s contention, but it does not nullify the testimony of Officer Turner to the effect that defendant was fully advised of his constitutional rights and voluntarily and intelligently gave his consent to a search of his automobile. Although testifying in effect that he never heard Officer Turner explain to the defendant his constitutional rights and never heard him obtain the consent of defendant to search defendant’s automobile, on cross-examination by the State, Officer Quinn stated:

“Q. Let me ask you this, Mr. Quinn. What you are saying is you don’t know if that happened or not? Is that correct?
“A. Yes, sir.
“Q. And it could have happened, but you don’t know about it?
“A. Right.
“Q. So, you are not saying that it didn’t happen, you are just saying that you don’t know if it happened? Is that right?
“A. That is right.”

The court was not in error in denying defendant’s motion to suppress.

Our consideration of the issues raised by appellant convinces us that 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: HARRIS, Presiding Judge.

text:
    Eric Dwayne JOHNSON v. STATE.
    6 Div. 679.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 22, 1982 Alabama Supreme Court 82-54.

      Gary L. Smith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

On June 18, 1981, a Jefferson County Circuit Court jury found appellant guilty of first degree robbery. Sentence was set at fifteen years’ imprisonment.

The State’s first witness was Officer D.D. Todd, an evidence technician for the Birmingham Police Department. On September 3, 1980, Officer Todd was called to Roberts Funeral Home in Ensley, Alabama, to investigate a robbery. He “dusted” for latent fingerprints and was able to “lift” four latent prints from a telephone at the funeral home.

Ms. Sandy Triplett, a fingerprint technician working in the Birmingham Identification Bureau, compared various photographs of the latent prints lifted from the telephone at the funeral home with known prints of appellant. In her opinion the fingerprints matched.

Officer Russell Ivory Atkins of the Birmingham Police Department testified she fingerprinted appellant when he was arrested. She identified the master card on which she placed appellant’s fingerprints.

Marilyn Johnson was secretary at the Roberts Funeral Home on the day of the robbery. While she was talking on the telephone in a back office of the funeral home, appellant and a male companion came to the office door and inquired about a body. After she told them that the body was not in the funeral home, the pair left.

A few minutes later appellant reappeared with another male companion. Ms. Johnson was still using the phone. Appellant walked through the door with his hand underneath his shirt and approached Ms. Johnson’s desk. He told her, “You are getting ready to get robbed.” Ms. Johnson responded, “Are you serious?” to which appellant replied, “Yes.”

Appellant grabbed the phone from her hand and hung it up. He took a manila envelope containing around $200 in cash, along with a number of checks. He and the companion left.

Ms. Johnson testified that she was afraid when appellant entered the room with his hand under his shirt, and it was her impression that he was carrying a gun. She also made a positive in-eourt identification of appellant based on the relatively long period of time she observed him when he robbed her.

Sergeant Howard Felts of the Birmingham Police Department was assigned to the case. He testified that Ms. Johnson picked appellant out of a photographic lineup.

Sergeant Felts also testified that he talked with appellant after he was arrested. After Sergeant Felts read him his rights and made no promise or threat, appellant agreed to make and sign a statement. Appellant stated that he did not have a gun and made no threats, but he walked in and told Ms. Johnson, “Give me the money.” Appellant told Sergeant Felts that he and his companion split the money, and that he took the phone from the victim’s hand.

After the State rested, appellant called Marilyn Johnson back to the stand. Ms. Johnson denied telling appellant’s attorney that she had no reason to suspect appellant had a gun.

Appellant also took the stand. He testified that he only made his statement to Sergeant Felts because Sergeant Felts had promised probation if he told him who else was involved. He denied robbing Ms. Johnson.

The only issue appellant raises concerns the trial court’s oral charge on first degree robbery and the code section dealing with the apparent use of a deadly weapon as set out in § 13A-8-41(b), Code of Alabama 1975. That section reads: “Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.”

Specifically, appellant contends that the trial court misled the jury when it charged the jury, “and 1st degree is with a gun or the defendant creates a reasonable impression that he is armed with a deadly weapon or dangerous instrument. (Emphasis added.) We disagree with appellant’s contentions.

As has been held many times by this court, the trial court’s oral charge must be considered as a whole, and if, when so construed, it asserts a correct proposition of law applicable to the evidence, there is no error. Kelley v. State, Ala.Cr.App., 409 So.2d 909 (1981). Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied 358 So.2d 791 (1978). In construing the charge as a whole, we find no error.

Before the jury retired, the trial court on two separate occasions quoted the applicable code section, § 13A-8-41(b), word for word, and told the jury he was doing so.

After the jury retired for deliberations, it asked for further instructions on the difference between the three degrees of robbery. The trial court paraphrased the distinction between the first degree robbery and the two lesser degrees by stating that, in first degree robbery, the defendant must create a “reasonable impression” he had the gun. Then for the third time, the trial court quoted word for word § 13A-8-41(b). He then “summed up” the charge by repeating the paraphrased “reasonable impression” charge.

Because of the repeated instructions that quoted the identical language of the relevant code section, the charge read as a whole was not misleading. This is especially true in light of the fact that the trial court’s paraphrasing or simplification was merely that: a simplified paraphrasing to make the law more easily understood. His simplification stated substantially the same elements as the code section, and, read in connection with the charge as a whole, the trial court’s paraphrasing did not mislead the jury.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge. DeCARLO, Judge,

text:
    Henry Joe WYNN v. STATE of Alabama.
    7 Div. 946.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied Dec. 10, 1982 Alabama Supreme Court 82-48.

      Charles Centerfit Hart and Myron K. Al-lenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Henry Joe Wynn was indicted for robbery in the first degree. The jury found him guilty as charged, and the trial court set sentence at forty-five years in the penitentiary. A motion for a new trial was overruled and this appeal followed.

The appellant was positively identified by Mrs. Donna Jenkins as one of two men who entered the Quick Shop where she was employed, pulled a gun, and demanded all the money in the cash register. Although appellant denied participating in the robbery and presented several alibi witnesses to account for his presence during the time of the robbery in question, the State’s evidence fully supported the verdict and there is no contention here to the contrary.

I

Appellant’s primary argument urging reversal raises a question of first impression in Alabama: i.e., whether the results of a lie detector test taken by the accused, and not allowed in evidence, as a matter of law, are admissible upon stipulation of the parties.

Several days prior to trial, appellant, his counsel, and the assistant district attorney agreed in open court that appellant would voluntarily submit to a polygraph test, and all parties stipulated on the record that the “results”, whether “favorable or unfavorable” to appellant, “would be admissible” at trial.

During the prosecution’s case-in-chief, Investigator Cecil C. Holliday, polygraph examiner for the Etowah County Sheriff’s department, testified for the State. He explained the operation of the polygraph machine and began to outline his qualifications for interpreting the test results, when appellant’s counsel made the following objection: (R. page 72)

“MR. HART: Your Honor, — excuse me. Doc — your Honor, the Defendant, of course, is willing to stipulate the results of the test which Mr. Holliday gave.
“MR. MOORE: Your Honor, I—
“MR. HART: But our agreement, as I understand, we didn’t go into this but we are merely willing to stipulate the results of the test. But as far as stipulating anything about Doc’s background or past with the polygraph, we object to that as not being relevant to what our agreement was.
“THE COURT: Overruled.”

After Holliday testified to his background and experience in polygraphy, he gave his opinion that polygraph examinations were “approximately 95% accurate.” He then described the procedure used during his examination of appellant, and stated that appellant answered “no” to all four “relevant questions” asked during the test. Holliday analyzed appellant’s responses to questions 1, 3, and 4 as “deception indicated.” He interpreted appellant’s answer to the second question to show “no deception indicated.”

His pre-trial stipulation notwithstanding, appellant now maintains that the court should not have admitted any of the polygraph evidence. In the alternative, he claims that the trial judge should have disallowed the testimony of Investigator Holli-day and read to the jury the following proposed “Defense Exhibit I”: (Yol. 11, R. page 360).

“STIPULATION
“In the opinion of C.C. Holliday, Polygraph Examiner for the Etowah County Sheriff’s Department, based upon a polygraph test he gave, Henry Joe Wynn was not telling the truth when he denied being involved in the robbery of which he stands accused.
“You will be charged by me at the end of this trial as to the weight you shall give to this piece of evidence.”

Thus, we must determine whether stipulated polygraph evidence is admissible at all, and, if so, whether the “results” stipulated in this case included all of the evidence later introduced.

We start with the recognition that Alabama, like most other jurisdictions, rejects evidence derived from lie detector tests because the polygraph examination has “ ‘not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.’ ” Ex parte Dolvin, 391 So.2d 677, 679 (Ala.1980) (quoting Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). See also Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied, 398 So.2d 376 (Ala.1981); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632, cert. denied, 292 Ala. 720, 289 So.2d 644 (1973); Johnson v. State, 46 Ala.App. 725, 248 So.2d 763 (Cr.App.1971).

Although there have been numerous claims to the greater accuracy of the polygraph since the Frye court determined in 1923 that the testing device had not achieved general scientific acceptance, the apparatus still has its critics, and our Supreme Court aptly observed in 1980 that “[T]he lie detector test has not gained the required acceptance in the intervening fifty-seven years,” Ex parte Dolvin, 391 So.2d at 679.

Nevertheless, among the jurisdictions which have considered the question whether to allow polygraph evidence that has been stipulated to be admissible, there is a division of authority. See generally Annot., 53 A.L.R.3d 1005 (1973); Note, Admissibility of Polygraph Data When Both Parties Have Stipulated That It Will Be Admissible, 13 Land & Water L.Rev. 613 (1978); Note, 15 Ala.L.Rev. 248 (1962). The majority of courts have allowed the evidence, either upon a theory of waiver or estoppel, or upon the satisfaction of certain conditions. A sizeable minority of jurisdictions, on the other hand, has determined that polygraph evidence is inadmissible at trial under any circumstances.

After careful consideration of the reasoning underlying both positions, it is our judgment that stipulated polygraph evidence should be admitted under certain circumstances, as we will set out herein. We acknowledge the validity of the contrary arguments, however, and we will attempt to outline them so that, in the future, parties may be able to árrive at their stipulations with some appreciation of the difficulties involved.

The courts which have rejected lie detector evidence, even when stipulated to be admissible, base their decisions on one or more of the following factors: (A) the polygraph test is based upon an untrustworthy premise; (B) the examiners have too little training, too much discretion, and wide inconsistency in the results; (C) the jury is likely to be over-awed by the examiner’s opinion; and (D) although parties may stipulate to facts, they cannot, by agreement, alter the law so as to render inadmissible evidence admissible.

A. The Polygraph

The lie detector is based on the theory that conscious deception produces involuntary responses in the autonomic nervous system, manifested by changes in blood pressure, pulse, respiration, and skin resistance to electric current (known as “Galvanic Skin Reflex”). See generally, J. Reid and F. Inbau, Truth and Deception — The Polygraph (“Lie-Detector”) Technique (2d ed. 1977). The individual response varies with the state of mind and physical condition of the person being examined, however, and certain characteristics can impair the reliability of the test.

For example, even proponents of the device acknowledge that an innocent but extremely nervous subject might register responses indicating deception. J. Reid and F. Inbau, supra at 216. Conversely, a guilty examinee might be able to “beat” the polygraph because he is unresponsive, has rationalized his offense, has had extensive prior questioning, or does not fear punishment. Id. at 224. The following additional variables can also affect the test results: fatigue; unusually high or low blood pressure; hardening of the arteries; obesity; asthma; allergies; use of drugs or alcohol; use of antiperspirant; and hiccups or coughs. See People v. Adams, 53 Cal. App.3d 109, 125 Cal.Rptr. 518 (1975); J. Reid and F. Inbau, supra at 234-35; High-leyman, The Deceptive Certainty of the “Lie Detector”, 10 Hastings L.J. 47, 60 (1958). Those suffering from mental disease or retardation are also prone to register suspect responses. J. Reid and F. In-bau, supra at 247-48.

B. The Polygraph Examiner

The “lie detector” cannot detect a lie; it is the examiner who must analyze the subject’s responses to the “relevant questions” in comparison with the “control questions” in order to determine physiological changes indicative of lying. The validity of the test results depends to a great extent, therefore, upon the expertise of the examiner. One court has noted that the skill required is more akin to an “art” than a science, United States v. Wilson, 361 F.Supp. 510, 512 (D.Md.1973), and it has been estimated that 80% of all polygraph examiners are unqualified. See Burkey, The Case Against the Polygraph, 51 A.B.A.J. 855, 857 (1965).

The American Polygraph Association requires a college degree and the administration of at least 200 polygraph tests. An-not., 53 A.L.R.3d at 1009. Alabama requires a college degree, or, in lieu thereof, five consecutive years of active investigative experience, plus a six months’ internship. Ala.Code § 34-25-21 (1975). Both insist upon graduation from an approved polygraph school.

Assuming that the examiner is qualified, he is, according to one commentator, still capable of error and may even be able to influence the outcome of the test. Skolnik, supra, note 4, at 711. The holding of the Colorado Supreme Court in People v. Anderson, Colo., 637 P.2d 354 (1981), may have been due, in part, to the inability of polygraph examiners to agree.

In Anderson, the defendant took three polygraph tests and obtained three different results. The first, given by a local law enforcement examiner, was “inconclusive.” The second, administered by the defendant’s own hired expert, resulted in a finding that the defendant was telling the truth. Finally, the accused submitted to an independent examination and the results indicated that his answers had been “qualifiedly truthful.” 637 P.2d at 356. The Anderson court held that lie detector evidence was “per se inadmissible” and observed, in dicta, that not even a stipulation would alter that determination.

Other courts have noted that if the outcome of the defendant’s first test is unfavorable, he will want to “shop around” for an exam he can pass. See, e.g., Akonom v. State, 40 Md.App. 676, 394 A.2d 1213 (Ct.Spec.App.1978). Then, they fear, the trial will become a battle of experts, and the fact-finding inquiry will shift from the guilt or innocence of the accused to the reliability of the machine or its operator, e.g., People v. Anderson, supra 637 P.2d at 361, that is, to “trial by [or perhaps of] polygraph,” United States v. Wilson, 361 F.Supp. at 513.

C. The Jury

Most courts rejecting stipulated lie detector testimony express the concern that the polygraph test usurps the function of the jury, e.g., State v. Biddle, 599 S.W.2d 182, 191 (Mo.1980); Fulton v. State, 541 P.2d 871 (Okla.Cr.App.1975), or will be given undue weight by the jury, e.g., State v. Corbin, 285 So.2d 234 (La.1973).

In United States v. Alexander, 526 F.2d 161 (8th Cir.1975), the Court of Appeals for the Eighth Circuit observed that the lie detector is “likely to be shrouded with an aura of infallibility, akin to the ancient oracle of Delphi,” and the jury is apt to give “significant, if not conclusive weight to a polygraphist’s opinion.” 526 F.2d at 168. See also, Radek, The Admissibility of Polygraph Results in Criminal Trials: A Case for the Status Quo, 8 Loy.U.Chi.L.J. 289, 295-96, 300-02 (1972).

D. The Stipulation

Finally, courts and commentators opposed to the admission of stipulated polygraph evidence question how a stipulation can alter the law so as to make unreliable evidence trustworthy and admissible. See, e.g., State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981); Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L.J. 917, 954 (1975).

One answer to the question is provided by the following synthesis of the cases:

“For the moment, the stipulation cases stand only for the proposition that the courts will permit the parties to take a reasonable gamble with an experimental device where all agree, but none will be forced to do so.”

Comment, The Truth About the Lie Detector in Federal Courts, 51 Temple L.Q. 69, 90 (1978).

We believe the answer to the question derives not from the fact that the stipulation somehow imbues the evidence with reliability, see, e.g., State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318, 1323 (1978), but from the fact that the parties are estopped, by their stipulated waiver of the right to object, from asserting the unacceptability of the evidence, see e.g., Cullin v. State, 565 P.2d 445, 457 (Wyo.1977). As the Wyoming Supreme Court observed:

“Since the accused would undoubtedly rely on the results, if positive, it would be unreasonable to allow him to defeat their introduction because the results were unfavorable.”

Cullin v. State, supra at 457. See also State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976).

Furthermore, in view of the fact that an accused can waive certain constitutional rights, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and statutory guarantees, e.g., Ala.Code § 15-11-1 (preliminary hearing), we see no reason why he should be prevented from waiving the protection afforded him by the rule in question here.

“Parties by their conduct, and especially by their agreements, may make that admissible which might otherwise not have been. These stipulations should be construed in the furtherance of justice. They should not be given a narrow, strict, or technical construction, but should be given a fair and liberal one, so as to carry out the apparent intention of the parties and permit a fair trial on the merits.”

83 C.J.S. Stipulations § 23a at 49-50 (1953).

With the foregoing weaknesses of the polygraph method in mind, we hold that a pre-trial stipulation providing for a defendant’s submission to the polygraph test and for subsequent admission of the results at trial is lawful and valid and should be given effect if the following conditions are met:

1. That the stipulation must be entered into by all parties — the district attorney, the defendant, and the defendant’s counsel, and must be a matter of record, either by a filed written document signed by all parties, Cf. Owens v. State, Ind.App., 373 N.E.2d 913 (1978) (State failed to sign), or by an oral agreement of the parties in open court, see State v. Marti, 290 N.W.2d 570, 587 (Iowa 1980),

2. That the stipulation, whether written or oral, should be preceded by the trial judge’s informing the defendant of his right against self-incrimination, his right to refuse to submit to the test, see Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916 (1966), and his right, under ordinary rules of evidence, to have the fact or outcome of a lie detector test excluded.

That the trial judge should not accept the stipulation unless he is satisfied that the defendant understands the foregoing rights and waives them intelligently and voluntarily. See Commonwealth v. A Juvenile (No. 1), 365 Mass. 421, 313 N.E.2d 120, 127 (1974). In addition, we adopt the following conditions almost verbatim from the opinion of the Arizona Supreme Court in State v. Valdez, 91 Ariz. 274, 371 P.2d 894, 900-01 (1962);

3. “That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial judge, i.e. if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.
4. “That if the graphs [or] examiner’s opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:
a. the examiner’s qualifications and training;
b. the conditions under which the test was administered;
c. the limitations of and possibilities for error in the technique of polygraphic interrogation; and
d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.
5. “That if such evidence is admitted the trial judge should instruct the jury that the examiner’s testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given.”

In the instant case, all of the foregoing conditions were fully met. The trial judge properly advised appellant of his rights and ascertained that appellant had waived them knowingly and voluntarily. In addition, the court found that Investigator Holliday was qualified as a polygraph examiner.

Holliday testified that he had been in the Criminal Investigation Division of the Army for eighteen years, had attended a fourteen week federal polygraph school in 1971, and had later served a one-year’s apprenticeship. Thereafter, he taught at the federal polygraph school at Fort McClellan, Alabama for two years, and worked as Eto-wah County polygraph examiner for two years. He stated that he had conducted 800 lie detector tests prior to examining appellant. We find no error in the trial court’s determination that Holliday was duly qualified.

Finally, the trial court’s charge to the jury covered the instruction we have outlined above. The remaining inquiry is whether the trial court erred by allowing the State to introduce the qualifications and further testimony of Investigator Holliday concerning the administration of the polygraph test.

While we believe that the stipulation in the case before us could have been more precisely drawn, and was not a model of the “clear, concise and unequivocal” agreement described by the New Jersey Supreme Court in State v. McDavitt, 62 N.J. 36, 297 A.2d 849, 855 (1972), it is our judgment that the term “results” as used in the instant stipulation covered not only the examiner’s final conclusion, but also certain background information necessary to an evaluation of his opinion.

In other words, we believe that the jury can properly assess the polygraph evidence only if they have the following necessary predicate information:

(1) the qualifications of the examiner;
(2) an explanation of how the polygraph works;
(3) the conditions under which the test was conducted.

Therefore, in the absence of stipulated terms to the contrary, we hold that the “results” of a polygraph test encompass all the information given to the jury in the case before us, i.e., items (1) — (3) above.

In conclusion, we note that many of the drawbacks of the polygraph method, outlined in Part I (A) and (B) of this opinion, may be overcome, or at least minimized, by the terms of the stipulation itself. The Supreme Court of Nevada observed, in Corbett v. State, 94 Nev. 643, 584 P.2d 704 (1978); that there are

“numerous variables, which if not properly monitored, can greatly reduce the reliability of the test results. [However,] parties can control by stipulation the variables deemed significant to fairness and reliability.”

584 P.2d at 706. Further, one student author has noted the following benefit of the stipulation:

“[CJounsel can bargain for the defendant to gain favorable or at least fair terms in the stipulation (e.g., submission to the test but not to any post-test interrogation).”

Comment, The Courtroom Status of the Polygraph, 14 Akron L.Rev. 133, 147 (1980).

The possibilities of the jury’s relying too heavily on the lie detector evidence, as pointed out in Part 1(C) here, can, we believe, be overcome by cross-examination of the polygraph examiner and the trial court’s careful instruction to the jury. See State v. Valdez, supra 371 P.2d at 901.

II

Appellant next contends that the State improperly questioned one of his alibi witnesses regarding the details of a prior conviction. During cross-examination of the witness, the following occurred: (R. page 98)

“BY MR. MOORE: [Assistant District Attorney]
“Q. Let’s start out by asking you a few questions about your record. Were you convicted of robbery of a Quick Shop January the 31st, 1975, robbing a Debbie Sue Thomas:
“A. (Nodding head affirmatively.)
“Q. Answer.
“A. Yes, sir.
“Q. You also were convicted of robbery of a Rosa N. Narrow at that Quick Shop.
“MR. HART: [Defense counsel] Your Honor, I would object to Mr. Moore specifying places. It’s okay to ask him if he was convicted of certain crimes, or plead guilty to those crimes.
“THE COURT: Overruled.”

Although a witness may be impeached by showing that he has been convicted of a crime involving moral turpitude, Ala.Code § 12-21-162 (1975); generally, only the name of the crime, the time and place of conviction, and the punishment imposed are proper inquiries, Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980); Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977); C. Gamble, McElroy’s Alabama Evidence § 145.01(11) (3d ed.1977).

To be timely, however, an objection must be interposed as soon as the ground for the objection becomes apparent. Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982); Smith v. State, 344 So.2d 1239 (Ala.Cr.App.), cert. denied, 344 So.2d 1243 (Ala.1977). As the portion of the transcript quoted above indicates, appellant did not object to the State’s first question whether the witness had been convicted of “robbery of a Quick Shop January the 31st, 1975, robbing a Debbie Sue Thomas.”

In our judgment, his later objection to another question also naming the victim and place of the crime was untimely and, therefore, correctly overruled. Etheridge v. State, supra.

Ill

Finally, appellant insists that the trial court erred in overruling his motion for a new trial. The motion alleged that he was denied a fair trial by the failure or refusal of one of the jurors to respond to a voir dire question asked by the State during the jury selection process.

The record before us does not contain the voir dire examination of prospective jurors, but all parties agreed that when the assistant district attorney inquired whether any member of the panel was acquainted with appellant or his family, the juror in question, Mrs. Fleetwood, made no response.

At the hearing on the motion for new trial, appellant testified that he did not recognize Mrs. Fleetwood prior to striking the jury, but later in the trial he remembered that he knew her and had dated her daughter some three years earlier. Appellant recalled that Mrs. Fleetwood had once ordered him off her property and had threatened to “see [him] in jail.” Thus, he claims, he was prejudiced by her non-disclosure and later service on the jury which convicted him.

Dorothy Wynn, appellant’s mother, testified that she knew Mrs. Fleetwood and worked with her at Baptist Hospital in Gadsden, Alabama. She stated that she saw Mrs. Fleetwood in the hall before appellant’s trial and said “hello” to her. Mrs. Wynn admitted that, at the time, she thought Mrs. Fleetwood “should have told the truth” when questioned during voir dire.

In addition, Mrs. Wynn acknowledged that she was in the room with her son and his attorney prior to striking the jury and, thus, had the opportunity to voice her disapproval of the prospective juror. Appellant’s mother testified that she told defense counsel she knew Mrs. Fleetwood, but she could not recall whether she made the statement before or after the jury had been struck.

Appellant did not subpoena Mrs. Fleet-wood for the hearing, and she was not called to testify by the State. The only witnesses presented were appellant and his mother.

The decision on a motion for new trial rests largely within the discretion of the trial court. Hewitt v. State, 389 So.2d 157 (Ala.Cr.App.1980), and, on appeal, this court indulges every presumption in favor of the correctness of the ruling. Smith v. State, 393 So.2d 529 (Ala.Cr.App.1981). In our judgment, the trial court was well within its discretion in discrediting appellant’s testimony that he did not recognize Mrs. Fleetwood or that he was misled by her failure to respond to the voir dire question. As our Supreme Court observed in Williams v. State, 342 So.2d 1328, 1330 (Ala.1977):

“A defendant who has not been misled is not permitted to participate in the selection of the jury without objections, speculate on winning a favorable verdict, and, failing to do so, raise for the first time such questions on a motion for a new trial.”

Moreover, we note that the motion for new trial did not comply with the following rule announced in Williams v. State, supra, at 1329:

“A motion challenging the composition of the grand jury, a petit jury, or qualifications of individual jurors, filed after the commencement of trial, must allege, and proof must show, that grounds for the motion were not known to the defendant before he went to trial, or that he could not have known them by exercising due diligence.”

See also Watson v. State, 398 So.2d 320 (Ala.Crim.App.1980), cert. denied, 398 So.2d 332 (Ala.1981), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981); Smiley v. State, 371 So.2d 469 (Ala.Cr.App.1979). Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973).

We have examined the issues presented on this appeal and have found no error. This case is due to be and is hereby affirmed.

AFFIRMED.

BOWEN, J., concurs.

HARRIS, P.J., concurs in result.

DeCARLO and BARRON, JJ., dissent.

DeCARLO, Judge,

dissenting.

Although I strongly believe that extreme care should be taken in invalidating agreements entered into by parties, it is my view that on this occasion we are obligated to do so because of Alabama’s historical position of disallowing polygraph evidence.

The United States Supreme Court has observed that “the proper administration of the criminal law cannot be left merely to the stipulation of the parties.” Young v. United States, 315 U.S. 257, 258, 62 S.Ct. 510, 511, 86 L.Ed. 832 (1942). In my judgment, this is one of those instances where the stipulation of the parties cannot be allowed to control.

It is clear that the scientific community remains divided on the subject of polygra-phy. Reed v. State, 283 Md. 374, 391 A.2d 364 (1978). One critical factor is that there are no means of verifying the results of a polygraph test by extrinsic evidence. Only polygraphers have performed studies demonstrating only scientific means of verification. No scientific studies have been performed with regard to verification. People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977).

The stipulation of the parties does little, if anything, to improve the reliability of the polygraph evidence. Even proponents of the use of polygraph evidence concede that the stipulation does little to increase readability. Pulakis v. State, 476 P.2d 474 (Alaska 1970).

The majority’s approach to polygraph testing may lead defendant’s to “shop around” until they obtain favorable results, without divulging prior unsuccessful tests. See Akonom v. State, supra. It may also put the State to considerable expense in providing polygraph tests for indigent defendants who could not afford the test otherwise.

We should take note that although the State of Wisconsin has for some years allowed stipulated polygraph evidence to be admitted under substantially the same procedures outlined in the majority opinion, the Wisconsin Supreme Court recently declared polygraph evidence inadmissible. State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981). The court recognized the pitfalls surrounding the admission of this type of evidence and quoted the following passage from the minority opinion in McLemore v. State, 87 Wis.2d 739, 751, 275 N.W.2d 692 (1972):

“[Pjolygraphy in its present state may be useful as an investigative tool, but ... its limitations and potential for misleading fact finders are such that it should not be part of [the] evidentiary system.”

Based on the foregoing reasons, I respectfully dissent.

BARRON, J., joins in the above.

      . Holliday stated that a “relevant question” relates to the incident in dispute. The subject’s responses to those inquiries are then compared to innocuous introductory questions and to “control questions,” those for which the answer is known and the examinee is likely to give a truthful answer. The relevant questions were: “(1) Were you in that Quick Shop on November the 23rd, 1981? (2) Did you take any part of that money from that Quick Shop? (3) Did you have a gun in that Quick Shop on November the 23rd, 1981? and (4) Did you receive any part of that money taken from that Quick Shop?”

      . New Mexico and New York appear to be the only state court exceptions to the rule. There, the results of a lie detector test are admissible, even without a stipulation, provided the proponent of the evidence establishes the reliability of the procedure and the qualifications of the examiner. See State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1974); People v. Daniels, 102 Misc.2d 540, 422 N.Y.S.2d 832, 837 (N.Y.Sup.Ct.1979).

      . See, e.g., Cureton, A Consensus as to the Validity of Polygraph Procedures, 22 Tenn.L. Rev. 728, 729 (1953) (97%); Pfaff, The Polygraph: An Invaluable Judicial Aid, 50 A.B.A.J. 1130, 1132 (1964) (99%); Wicker, The Polygraph Truth Test and the Law of Evidence, 22 Tenn.L.Rev. 711, 713 (1953) (95-98%); Note, The Polygraph and Probation, 9 Idaho L.Rev. 74, 75-76 (1972) (95%). But see S. Abrams, A Polygraph Handbook for Attorneys 105 (1977) (63%), noted in Comment, The Courtroom Status of the Polygraph, 14 Akron L.Rev. 133, 137 (1980); Burkey, The Case Against the Polygraph, 51 A.B.A.J. 855, 856 (1965) (75% or less).

      . See, e.g., Burkey, supra, note 3; Levin, Lie Detectors Can Lie!, 15 Lab.L.J. 708 (1964); Skolnik, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694 (1961).

      . See Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981) (by implication); People v. Houser, 85 Cal.App.2d 686, 193 P.2d 937 (Dist.Ct.App.1948); Coney v. State, 258 So.2d 497 (Fla.Ct.App.), cert. denied, 262 So.2d 448 (Fla.1972); State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977); State v. McNamara, 252 Iowa 19, 104 N.W.2d 568 (1960); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976); State v. Bennett, 17 Or.App. 197, 521 P.2d 31 (Ct.App.1974).

      . See State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962); Williams v. State, 378 A.2d 117 (Del.1977) (by implication); Owens v. State, Ind.App., 373 N.E.2d 913 (1978); Conley v. Commonwealth, Ky., 382 S.W.2d 865 (Ct.App.1964) (by implication); Commonwealth v. A Juvenile (No. 1), 365 Mass. 421, 313 N.E.2d 120 (1974); Corbett v. State, 94 Nev. 643, 584 P.2d 704 (1978); State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972); State v. Steele, 27 N.C.App. 496, 219 S.E.2d 540 (Ct.App.1975); State v. Souel, 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978); State v. Abel, 600 P.2d 994 (Utah 1979); State v. Ross, 7 Wash.App. 62, 497 P.2d 1343 (Ct.App.1972); Cullin v. State, 565 P.2d 445 (Wyo.1977).

      .See Pulakis v. State, 476 P.2d 474 (Alaska 1970); People v. Anderson, Colo., 637 P.2d 354 (Colo.1981) (dicta); People v. Baynes, 88 Ill.2d 225, 58 lll.Dec. 819, 430 N.E.2d 1070 (1981); State v. Corbin, 285 So.2d 234 (La.1973); Akonom v. State, 40 Md.App. 676, 394 A.2d 1213 (Ct.Spec.App.1978); People v. Liddell, 63 Mich. App. 491, 234 N.W.2d 669 (Ct.App.1975); State v. Biddle, 599 S.W.2d 182 (Mo.1980); Fulton v. State, 541 P.2d 871 (Okla.Crim.App.1975); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (Super.Ct.1980); Romero v. State, 493 S.W.2d 206 (Tex.Crim.App.1973); State v. Frazier, 252 S.E.2d 39 (W.Va.1979); State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981). But cf. State v. Olmstead, 261 N.W.2d 880 (N.D.), cert. denied, 436 U.S. 918, 98 S.Ct. 2264, 56 L.Ed.2d 759 (1978) (stipulated evidence admissible at hearing on motion for new trial); People v. Barbara, 400 Mich. 352, 255 N.W.2d 171 (1977) (stipulated evidence admissible at post-conviction proceedings).


text:
    STATE of Alabama v. William Sanford ELEY, II.
    3 Div. 654.
    Court of Criminal Appeals of Alabama.
    Oct. 20, 1982.
    Rehearing Denied Oct. 25, 1982.

      Maury Smith and Edward B. Parker, II of Smith, Bowman, Thagard, Crook & Cul-pepper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., and James H. Evans, Dist. Atty., for appel-lee.
   BARRON, Judge.

This appeal was perfected by the State as a result of a ruling by the Circuit Court of Montgomery County granting appellee’s motion to dismiss an assault charge on a plea of former jeopardy, and was in accordance with Act 82-860, which permitted appeals by the State from certain pre-trial proceedings.

Appellee then filed in this court a motion to dismiss the State's appeal on the basis that Act 82-860 was not constitutionally enacted and is, therefore, null and void. We now come to consider that motion to dismiss.

The facts. S.B. 60, which was subsequently designated Act 82-860, was duly passed by both houses of the Alabama Legislature in the 1982 Third Special Session. It was presented to the Governor on August 13, 1982, the date on which both houses adjourned sine die. The Governor signed the bill on August 22, 1982, and deposited the bill with the Secretary of State on August 25, 1982. Between the date on which the bill was presented to the Governor and the date on which the bill was deposited with the Secretary of State, there were two intervening Sundays.

The issue. Was the bill approved by the Governor and deposited with the Secretary of State in accordance with the provisions of Article V, Section 125, Constitution of Alabama, 1901, so as to become a valid act?

The holding. The bill was not approved by the Governor and deposited with the Secretary of State within ten days after final adjournment of the legislature, as required by Section 125 of the Constitution, so as to become a valid act.

The pertinent portion of Constitution Section 125 provides:

“If any bill shall not be returned by the governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent the return, in which case it shall not be a law; but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after the reassembling, otherwise it shall become a law, but bills presented to the governor within five days before the final adjournment of the legislature may be approved by the governor at any time within ten days after such adjournment, and if approved and deposited with the secretary of state within that time shall become law." (Emphasis ours.)

The issue in this case has two prongs: (1) whether intervening Sundays are counted in the ten-day time computation, and (2) whether the process of depositing the document with the Secretary of State is a ministerial duty for which the ten-day requirement is directory, as opposed to being mandatory. We perceive that the pertinent language of Section 125, hereinabove quoted, is plain, clear, and distinct; there is no doubt, ambiguity, or uncertainty as to the meaning. Consequently, the language must be accepted as written, there being no reason or justification by the court for construction either by way of deletion, addition, or interpolation. The intent of the framers of any constitutional provision is first sought from the language employed in its ordinary and usual meaning at the time of adoption.

Addressing the issue of giving heed to the plain requirements of the constitution, the Court of Appeals in State el rel. Smith v. Elba Bank & Trust Co., 18 Ala.App. 253, 91 So. 917, cert. denied, Ex parte Elba Bank & Trust Co., 207 Ala. 711, 91 So. 922 (1921), held:

“A search for purpose or intention cannot be initiated, and construction is excluded, where the language used is so plain and unambiguous that there is nothing to construe.”

Sundays are not excepted in the computation of the ten-day period. The first portion of the sentence specifically excepts Sundays in the computation of the six-day period within which the Governor must return bills to the legislature to prevent their becoming law without his signature. That provision is separated from the remainder of the sentence by a semicolon. It logically follows that if the framers had also intended to exempt Sundays from the computation of the ten-day period, then they would have specifically so provided. Not having specifically so provided, the framers intended that Sundays would not be exempt in the computation of the ten-day period.

The use of the conjunctive “and” in the last phrase of the quoted provision signifies two conditions precedent to such bills becoming laws: approval by the Governor and depositing with the Secretary of State within that time (ten days). Conversely, if either condition is not met within the stated period, the bills will not become laws. We are not persuaded that the depositing with the Secretary of State is “directory” only, which somehow waives the ten-day time period. Unless otherwise clear from the language employed, all constitutional provisions should be regarded as mandatory so as to preclude any discretion with the executive, legislative, or judicial branches of government as to whether to obey or disregard them. Following the clear and plain language of the provision and resorting to the ordinary and usual meaning of the words employed, we hold the bills must have been deposited with the Secretary of State, after their approval, and within the ten-day period. Not having been so deposited with the Secretary of State, the bill did not become law. Instead, it became the object of a pocket veto. To hold any other way would be an unwarranted judicial encroachment on constitutional revision, a matter which is reserved exclusively to the legislature and the people.

For the foregoing reasons, appellee’s motion to dismiss is due to be, and is hereby, granted.

APPEAL DISMISSED

HARRIS, P.J., and TYSON, J. (sitting by agreement filed pursuant to Canon 3-D of the Alabama Canons of Judicial Ethics), DeCARLO and BOWEN, JJ., concur.


author:
PER CURIAM.
      MADDOX, Justice FAULKNER, Justice

text:
    Ex parte State of Alabama. (Re: STATE of Alabama v. William Sanford ELEY II).
    82-98.
    Supreme Court of Alabama.
    Dec. 17, 1982.
    Charles A. Graddick, Atty. Gen., and James H. Evans, Dist. Atty., and Joseph G.L. Marston, Asst. Atty. Gen., for petitioner.
    Edward B. Parker, II and Maury Smith, Montgomery, for respondent.
    Oakley Melton, Jr., and William J. Sam-ford, Jr., Legal Advisor to Governor, Montgomery, for amicus curiae Fob James, Governor of the State of Alabama.
    James W. Webb of Webb, Crumpton & McGregor, Montgomery, for amicus curiae Ass’n of County Com’rs of Alabama.
   PER CURIAM.

WRIT DENIED. NO OPINION.

TORBERT, C.J., and JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ. concur.

MADDOX and FAULKNER, JJ., dissent with opinion.

MADDOX, Justice

(dissenting).

I would grant the writ to review the opinion of the Court of Criminal Appeals, 423 So.2d 303, insofar as it holds that Sundays are not excluded from the ten-day period allowed the Governor under § 125. By dissenting, I should not be understood as saying that the opinion is incorrect in this regard, but I think the petitioners present a sufficient legal question that we should grant the writ to review the opinion of the Court of Criminal Appeals, even if we should later affirm it.

FAULKNER, Justice

(dissenting).

I dissent from the majority’s decision to deny the writ. I would grant the writ.

The principal issue presented here is whether Senate Bill 60, subsequently designated Act 82-860, was duly signed and delivered by the Governor. The Court of Criminal Appeals held that the Act did not pass constitutional muster under Article V, Section 125, Constitution. The pertinent provision of § 125 in this case is:

“. .. bills presented to the governor within five days before final adjournment of the legislature may be approved by the governor at any time within ten days after such adjournment, and if approved and deposited with the secretary of state within that time shall become law.”

The Court of Criminal Appeals held:

“. .. We perceive that the pertinent language of Section 125, hereinabove quoted, is plain, clear, and distinct; there is no doubt, ambiguity, or uncertainty as to the meaning. Consequently, the language must be accepted as written, there being no reason or justification by the court for construction either by way of deletion, addition, or interpolation.... ”

I perceive that the Court of Criminal Appeals, and the majority of this Court by denying certiorari to review that Court’s decision, are running the ship of state too strictly, and too narrowly.

It is undisputed that Act 82-860 passed the Senate on August 11, 1982, and passed the House on August 13. It was presented to the Governor on August 13 — the same date that the legislature adjourned. This Act, along with 108 other Acts, was approved and signed by the Governor on August 22, and deposited with the Secretary of State on August 25. As I interpret § 125, August 25 was within the Constitutional time limit. In the same sentence as the portion of § 125 that I have quoted, appears this language:

“If any bill shall not be returned by the governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it.... ”

The Court of Criminal Appeals held that the “Sunday excepted” provision is “separated from the remainder of the sentence by a semicolon,” and therefore, “if the framers had also intended to exempt Sundays” they would have specifically so provided.

It goes without saying, that § 125 could have been written more grammatically correct, but surely, if, in the very same sentence, the framers excepted Sunday in the six-day provision, they would not have included Sundays in the 10-day provision. The logical conclusion is that the Sundays, August 15 and August 22, should have been excepted from the 10-day provision of § 125 in this case.

The six-day provision of § 125 was considered in In re Opinion of the Justices, 252 Ala. 541, 42 So.2d 27 (1949). There the Justices opined that if the sixth day fell on a Sunday, then the sixth must be the next legislative day. In other words, the “six days” in the Constitution means legislative days. I take judicial notice that the Alabama Legislature does not meet on Sundays.

I contend that the 109 Acts signed by the Governor on August 22 and deposited with the Secretary of State on August 25 met § 125 muster. A simple example proves my contention. Suppose the legislature adjourned on a Thursday; the 10th day following adjournment would be on a Sunday. Can it be intelligently assumed that the office of the Secretary of State would be open on that Sunday to receive the Acts signed by the Governor?

I would grant the writ.