author: BOWEN, Judge.

text:
    Douglas BILLINGSLEY v. STATE.
    7 Div. 710.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.
    Rehearing Denied May 27, 1980.

      B. Greg Wood, of Love, Love & Lawrence, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of Alvin Abrams. A jury convicted him of murder in the second degree and fixed his punishment at twenty years’ imprisonment.

For approximately one year, seventy-one year old Alvin Abrams and the defendant had been doing “a lot” of drinking together. On one occasion three months before his death, Abrams and the defendant were drinking, got into an argument and had to be separated.

Around two o’clock on the afternoon of February 20, 1979, Yellow Cab driver Michael Sergeant took Abrams to the defendant’s home. Sergeant stated that, before he could leave, Abrams, accompanied by the defendant, returned to his cab and asked him to get a quart of Old Mr. Boston Whiskey.

About four o’clock that afternoon, Yellow Cab driver Virgle Sims delivered the whiskey to Abrams at the defendant’s house. Sims testified that he saw the defendant, the defendant’s wife, and Abrams in the defendant’s house when he delivered the whiskey. They were drinking.

Mrs. Wilma Black was the defendant’s neighbor. She testified that at 7:30 on the night of February 20 the defendant knocked on her back door and said, “Fve killed a man, and I think it’s Bob.” “Bob” referred to Mrs. Black’s son-in-law, Bob Os-trowski.

Mrs. Black and her daughter, Linda Os-trowski, accompanied the defendant to his house. On the living room floor lay Alvin Abrams, the right side of his face horribly mutilated from a shotgun blast. The body was cold and the blood had begun to coagulate.

The police arrived and a shotgun was found in a bedroom closet. Several witnesses for the State testified that, in their opinion, this weapon had recently been fired.

Expert testimony revealed that Abrams died of a shotgun wound to his head. An expert concluded that the shotgun was within three feet of Abrams’ head when the weapon was fired. Abrams had type “O” blood; the defendant, type “A”. Drops of type “A” blood were found throughout the house. Dried blood and tissue were removed from the hair of the defendant’s wife. An expert concluded that this matter could be either type “A” or type “O” as it contained properties of both types although he could not determine if it were one type to the exclusion of the other.

The defendant gave an exculpatory statement to Detective Glenn Talley and Sheriff Jerry Studdard. In the statement, the defendant claimed that he had not seen Abrams for two or three weeks, that no Yellow Cab had come to his house that day, and that his shotgun had not been fired in a year. He stated that he and his wife had gone to bed about eight o'clock that night and that he was later awakened by a noise. He went into the living room and found a body but did not recognize it until his wife told him who it was. At trial, the defendant’s testimony was similar to the substance of this statement.

I

Initially, it is argued that the conviction is due to be reversed for lack of a judgment entry adjudicating the defendant guilty.

The judgment entry signed by the trial judge and appearing in the record recites:

“The Court in accordance with the verdict of the jury, ‘We, the jury, find the defendant guilty of Murder in the Second Degree and fix his punishment at 20 years, 0 days imprisonment in the penitentiary of the State of Alabama’ then by the Court adjudged guilty accordingly of Murder in the Second Degree as charged in the indictment and the defendant’s punishment is fixed at 20 years’ imprisonment.”

“One of the requirements still obtaining and necessary to a valid judgment is that there must be a solemn adjudication of guilt.” Blakely v. State, 28 Ala.App. 574, 190 So. 102 (1939). This “solemn adjudication” need not follow any specific pattern “but there must be some words to show that there has been a judgment upon the verdict.” Wright v. State, 103 Ala. 95, 96, 15 So. 506, 507 (1893). While the “judgment entry in all criminal cases where there is conviction should recite in express words that the defendant is adjudged guilty by the court as found by the jury,” the language employed in the court’s minute entry is to be given a liberal construction. Carmichael v. State, 213 Ala. 264, 104 So. 638 (1925); Driggers v. State, 123 Ala. 46, 48-49, 26 So. 512, 513 (1898). Thus a judgment entry is not “insufficient or void” because of the omission of words which would merely have made the judgment “fuller and more complete” had they been included. Wilkinson v. State, 106 Ala. 23, 28, 17 So. 458 (1894). The omission in the minute entry of the judgment of a formal adjudication of the defendant’s guilt upon the verdict rendered will not render the judgment entry insufficient where it recites a judgment of sentence by the court in accordance with the verdict. Talbert v. State, 140 Ala. 96, 99, 37 So. 78 (1903).

Certainly, in this case, the judgment entry could be “more complete” but it is not so insufficient as to be void. The substance and meaning of the judgment entry are definite and sufficient to show that the defendant was adjudged guilty by the court as found by the jury. This is all that is required.

II

The defendant maintains that the trial court committed reversible error by allowing the prosecutor in his closing argument to the jury to draw an adverse inference from the defendant’s failure to call his wife to testify as a witness.

Prom the record:

“MR. YUNG [Assistant Attorney General] (resumed): Now, one of the most important things in this case — and I am about through — is not what you heard but what you did not hear. The most important thing that you did not hear is the testimony of Mrs. Billingsley.
“MR. WOOD [Defense Counsel]: We object to that, Your Honor.
“THE COURT: This will not be charged against your time.
“Set out in Section 191.01, sub. 4, sub. C, a comment may be made on the parties’ failure to call a member of his family. They cite three cases, Barnes versus State, Waller versus State and Davis versus State.
“Okay. Now you may make the comment.
“MR. YUNG (resumed): Where was Mrs. Billingsley? Now, the State can’t call her. The law is that the State can’t call—
“MR. WOOD: I object to that, Your Hon- or. That is an incorrect statement of law. They can call that woman as a witness.
“MR. YUNG: That is not the law.
“THE COURT: I’ll instruct the jury that the statement made by Mr. Wood is an incorrect statement of the law.
“MR. WOOD: We except, if it please the Court.
“MR. YUNG (resumed): We can’t call his wife up here and make her testify on this. But he can call her to back up his testimony if his testimony is true. He could call her if in fact she were in bed asleep with him like he tells you. He could call her to back him up if in fact he woke up and went in there and found the body and then woke her up and told her to go look. He could call her to testify under oath if in fact she then went in there and looked and said, ‘It looks like Alvin Abrams to me.’ He could call her to testify that he told her to call the law and she tried to and that she then called Ostrowski and Mrs. Black over there if that were true.
“We can’t; he could. And he didn’t do it. “But on the other hand, if she told the sheriff, like the sheriff asked him on that tape, that she was asleep on the couch, not in the bed with him, that she didn’t know anything about it until the police came, then the last thing in the world, the last thing in the world that he would do is call that woman, his wife, in here because we would then be able to cross examine her about what she told the sheriff. We would then be able to play the tape for you that the sheriff made when he talked to her. That’s the last thing he could afford to do.
“That is why the only other witness in that house didn’t testify, because we can’t make her and the last thing he wanted was for her to be in here.
“Where was Mrs. Billingsley? I think the answer to that is clear.”

The basic rule is:

“Generally, if it happens both (1) that the evidence warrants a finding that a party, at the time of the trial, has one and only one member of his family who has knowledge of a material matter and (2) that such family member is not called as a witness, the opponent may comment on such party’s failure to call that family member as a witness.” C. Gamble, McEl-roy’s Alabama Evidence, § 191.01(4Xb) (3rd ed. 1977).

This rule is complicated by the fact that the wife is a privileged, but not disqualified, family member.

Despite language in DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979 (1918) and Holyfield v. State, 365 So.2d 108 (Ala.Cr.App.), cert. denied, 365 So.2d 112 (Ala.1978), it is clear that a husband or wife is competent, but not compellable, to give testimony either for or against his or her spouse in a criminal proceeding. Jay v. State, 15 Ala.App. 255, 73 So. 137 (1916). By statute the spouse-witness is competent to testify. Alabama Code 1975, Section 12-21-227. The privilege of refusing to testify belongs only to the spouse-witness. Trammel v. United States, - U.S. -, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). Competency and privilege are not interchangeable terms and must not be confused. McElroy, § 103.01(2) and (3) (3rd ed. 1977).

“Under our statute, it is the witness-spouse’s privilege, and the defendant-spouse can in no way compel or prevent her from exercising such privilege.
“The defendant-spouse cannot as a matter of law require her to testify in his behalf nor can the State require her to testify against him.” Holyfield, 365 So.2d at 112.

This distinction between competency and privilege must be made because, if a witness-spouse were incompetent to testify until that spouse elected to testify, then any comment upon the failure of the witness-spouse to testify would be error.

Clearly, the prosecutor may not comment on the refusal of a spouse-witness to testify or upon the exercise of a privilege not to testify. Holyfield, 365 So.2d at 112. However, in this case, the record does not show that any privilege was exercised or invoked and the defendant’s wife was not called as a witness by either party. The reason for the failure of the wife to testify does not appear.

The issue raised by the defendant was addressed by this Court in Hurst v. State, 54 Ala.App. 254, 265, 307 So.2d 62 (1974), cert. denied, 293 Ala. 548, 307 So.2d 73 (1975). There the prosecutor commented on the failure of the defendant to call his wife to testify. This Court found no error in the comment.

“It is the general rule that one party may not comment unfavorably on the other party’s failure to produce a witness supposedly favorable to that party if the witness is equally available to both sides. We are not of the opinion that the doctrine of equal availability can be applied to close-blood relationship or the relationship of husband and wife. Morgan v. State, 49 Ala.App. 330, 272 So.2d 256; Commonwealth v. Spencer, 212 Mass. 438, 99 N.E. 266; 16 C.J. 904, Section 2250; 14 Am.Jur. 875, Section 151.” Hurst v. State, 54 Ala.App. at 265-266, 307 So.2d at 73.

There appears to be a conflict of authority in this area. See annotations at 116 A.L.R. 1170 (1938) and 5 A.L.R.2d 928 (1949). McElroy, citing cases where it was held error to comment on the defendant’s failure to call a codefendant as a witness, states:

“A party may not comment upon his opponent’s failure to call a specified person as a witness where it reasonably appears that, if such person had been sworn as a witness and asked about his knowledge of material facts, he could have claimed successfully a privilege not to testify about such facts.” McElroy, § 191.01(6).

We note this apparent conflict in light of the shadow of suspicion the Alabama Supreme Court has cast over Hurst.

However, we think that this apparent conflict was resolved in Spencer, which was cited as authority in Hurst. In Spencer, supra, the wife-witness was also competent but not compellable, and was not called to testify for either party.

“As to their testimony against each other either may testify, but shall not be compelled so to do in a criminal proceeding against the other. The privilege is that of the spouse called and not of the defendant. In the case of the defendant in a criminal suit the question whether he will testify is decided by him alone. In only this last case is his failure to produce the evidence not to be taken against him. In all other proceedings and as to all witnesses except himself in a criminal proceeding against him, the defendant is left to the general principles of law as to what inference may be drawn against him for his failure to produce evidence in his favor. In this respect our statute differs from those of some states which expressly provide that the failure of one spouse to produce the other shall not in a criminal case be taken against the defendant. See for instance St.Mo. 1899, § 2638; State v. Weaver, 165 Mo. 1, 65 S.W. 308, 88 Am.St.Rep. 406; State v. Taylor, 57 W.Va. 228, 50 S.E. 247. See also Wyman on Ev. § 488 (note).
“One of these general principles is that, where the circumstances are strong against the defendant and it becomes a question what weight shall be given to them in view of any conceivable explanation of them, if there be witnesses who could furnish any such explanation and they are peculiarly under the influence of the defendant or peculiarly related in interest to him, then his failure to produce any such witness is a proper subject for comment unfavorable to him. Com. v. Webster, 5 Cush. 295, 316, 52 Am.Dec. 711; Com. v. Finnerty, 148 Mass. 162, 19 N.E. 215. A failure to explain what can be reasonably explained may be taken as evidence that the truth would not help the defendant. The jury are to judge whether the defendant has done what he could to put the evidence before them and what weight should be given to his failure. There can be no doubt in the present case that the failure of the defendant to produce his wife is within the rule, unless it is excluded by the fact that if called she might have refused to testify. Com. v. Galligan, 156 Mass. 270, 30 N.E. 1142.
“The defendant always may relieve himself from any unfavorable inference by showing that by reason of the sickness or absence of the desired witness or from any other cause he has been unable to produce him; but he is to be held to reasonable effort to produce the witness, and in the absence of any evidence of such effort the rule applies. In the present ease the wife was in court during the whole or a part of the trial, and ministered to the wants of the defendant. Apparently he had ample time to converse with her. Whether or not she, if called, would testify was a matter entirely personal to her. The privilege to refuse was hers, not his. If he had called her and she had refused to testify, then no inference could have been drawn against him. It then would have appeared that he had done all he could do to call her and avail himself of her evidence. But he did not call her. It does not appear that she refused to take the stand, or that the defendant had made any attempt whatever to get her testimony. This is not a case where the defendant has the right to introduce evidence under a law saying that the failure to produce it shall not be taken against him, as in the case of his own right to testify, but is a case where the witness is competent and, if called, may testify or not as she pleases; and there is nothing to show her unwillingness. Her failure to testify is as consistent with the theory that he did not desire her to testify as with the theory that she was unwilling so to do. It cannot be assumed in his favor that her absence from the witness stand was due to her refusal to testify. If he desired to be relieved from the operation of the rule as to the production of his wife as a witness he should have shown that he had made an effort to that end. So far as respects our statute, the rule that the defendant should make reasonable effort to explain by the aid of witnesses peculiarly related to him is as applicable when the wife is the needed witness as where any other person is. Com. v. Galligan, ubi supra.” Spencer, 99 N.E. at 271-272.

See also Commonwealth v. Noxon, 319 Mass. 495, 66 N.E.2d 814, 838-839 (1946). Under this reasoning the prosecutor’s comment on the defendant’s failure to call his wife to testify was proper since the defendant did not show any reason for her absence and there was no comment on any privilege which had been invoked. See also Slater v. State, 43 Ala.App. 513, 194 So.2d 93 (1967), where it was held that, in order to prevent the defense from commenting on the State’s failure to call a witness who was more available to the State but who was claimed by the State to be suffering from a mental condition, the mental condition should be shown by evidence so that the defendant could have an opportunity to rebut it.

Ill

The defendant also maintains that the trial court improperly instructed the jury on the correctness of the prosecutor’s remarks that the State could not call the wife of the defendant as a witness.

Initially, it is noted that defense counsel’s objection interrupted the prosecutor’s sentence. While the State can call the defendant’s wife to the witness stand it cannot make her testify. Alabama Code 1975, Section 12-21-227. The objected to portion of argument must be construed in its context within the prosecutor’s argument.

No further or other objection was made on this matter. No clarifying instructions were submitted or requested. There was no motion for a new trial. Trial counsel, at the time of objection, made no request that the jury be instructed on what the correct law was.

The issue of the defendant’s wife’s testimony was presented to the trial judge before trial, during trial, and in closing argument.

Before trial, defense counsel filed a “Motion in Limine” requesting that the trial court order the prosecutor to “refrain from eliciting” testimony regarding:

“Any statement or utterance by the defendant's wife, Mildred Billingsley, because any such statement or utterance is hearsay, irrelevant, immaterial, and would be unduly prejudicial.”

The record contains no ruling on this motion.

During the prosecutor’s cross examination of the defendant, the following occurred:

“Q. Now, your wife is going to come in here and back you up on that testimony?
“MR. LOVE [Defense Counsel]: Your Honor—
“THE COURT: Sustained.
“MR. VALESKA [Assistant Attorney General]: Judge, we have a case on it
“THE COURT: Give me the case, if you have one.
“[Discussion held off record.]”

Following the off the record discussion, the prosecutor did not pursue the objected-to line of questioning.

From the record, it is obvious that the trial judge possessed a greater knowledge of the facts surrounding the defendant’s failure to call his wife as a witness than has been presented to this Court. The wife’s actual availability to either or both sides simply does not appear in the record. “In view of this state of the record we are unwilling to say that the Court’s ruling prejudiced the defendant.” Thompson v. State, 352 So.2d 37, 39 (Ala.Cr.App.1977).

During the State’s case it was shown that blood and tissue which could have come from the defendant or the deceased were found in the wife’s hair; that the wife was present with the defendant and Abrams shortly before the killing and was present when the police arrived.

In his defense, the defendant denied seeing Abrams until he discovered him dead on his living room floor. The defendant testified that he and his wife had been drinking and had gone to bed together around 1:00 in the afternoon. When the defendant awoke, his wife was still sleeping. After the defendant discovered the body he awoke his wife who identified the corpse. Allegedly the defendant told his wife to call the police. He testified that his wife went to the back door and called for the neighbors. The defendant also maintained that the blood on the couch belonged to his wife.

. The defendant’s testimony was in seemingly unresolvable conflict with the State’s evidence. The defendant denied telling Mrs. Black that he had killed someone. He denied seeing either the deceased or a Yellow Cab at his house although witnesses placed both in the defendant’s presence. The defendant’s trial testimony was even in conflict with a statement he had given the Sheriff after the homicide. In conclusion, it appears that, besides the defendant himself, the defendant’s wife was the only witness who could dispute the State’s formidable case of circumstantial evidence against the defendant. No doubt the jury was left bewildered by Mrs. Billingsley’s failure to testify and the defendant’s failure to explain her absence.

Jurors are not trained in the law. In the context of the prosecutor’s argument we do not think that they would appreciate the distinction between “calling” a witness and being able to make her testify. This is not to underestimate their intelligence for the appellate courts of this state have fallen prey to the same lack of distinction. De-Bardeleben. Thus, to an ordinary layman, to call a witness would imply that he or she could or would testify — or could be made to testify. To some extent this same idea is recognized in the rule that a “witness may be hailed into court by compulsory process at the instance of either party, but this does not make the witness equally accessible or available to each.” Brown v. State, 50 Ala.App. 471, 475, 280 So.2d 177, 180, cert. denied, 291 Ala. 774, 280 So.2d 182 (1973). So, while the prosecutor’s argument that the State could not call the defendant’s wife was technically incorrect, as the State had the power to subpoena her although she could not be made to testify, we do not think that its effect upon the jury was such as to require a reversal of this particular case.

Substantial error is not presumed on appeal. The burden is on the defendant to show error and the judgment appealed from will not be reversed unless it appears to the appellate court that the error complained of probably affected injuriously the defendant’s substantial rights. Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956).

IV

The defendant’s argument that the State failed to establish the necessary predicate for the admission of a “transfusion record” showing the defendant’s blood type is not supported by the record. This document was admitted under the business records exception to the hearsay rule. Specifically, the defendant contends that the State failed to show that it was the regular practice of the Sylacauga Hospital to make records at the time of the event recorded or within a reasonable time thereafter. This is the last of the four elements necessary for a proper predicate for the introduction of a business record. McElroy, § 254.01(3)

This argument ignores the custodian’s testimony at trial. The blood transfusion record from the hospital bears the date “7-25-72.”

“Q. Now, these records are ordinarily, normally, always made by the hospital when a person receives a blood transfusion at the hospital?
“A. Yes, sir.”

The blood transfusion record was properly admitted into evidence after the State presented a proper predicate.

V

The seizure of the blood and tissue from Mrs. Billingsley’s hair was proper. The material observed was in plain view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The officers were justified in seizing the potential evidence before it could fall or be washed out. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Moreover, the defendant has no standing to challenge the alleged search of his wife’s person. Fourth Amendment rights are “personal rights” which “may not be asserted vicariously.” Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Relying on Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the defendant contends that a shotgun found in his bedroom closet was illegally seized. Mincey held that there was no “murder scene exception” to the warrant requirement of the Fourth Amendment. “[T]he warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.” However, the Supreme Court did not condemn all investigating and warrantless searches at the scene of a crime.

“We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.... And the police may seize any evidence that is in plain view during the course of their legitimate activities.” Mincey, 98 S.Ct. at 2413-14.

Prior to trial, the defendant filed a motion to suppress illegally seized evidence. The record contains no ruling on this motion. At trial, no reference was made by the State to any search or to the shotgun until after the issue was raised by the defense in its cross examination of Officer Robert Hay. Defense counsel asked the officer if he “began to look for a gun there on that occasion.” The defense introduced into evidence a photograph of the shotgun sitting in the closet. At this point in the progress of the trial, there was no evidence that a shotgun was the murder weapon. The defendant is not permitted to present evidence to the jury on a specific issue and then object when the State attempts to present similar evidence on this same point. Additionally, the record shows that, when the shotgun was offered into evidence by the State, there was no objection. After the State rested its case, defense counsel moved to exclude, one of the grounds for which was, “There was illegal, irrelevant, and incompetent evidence allowed to go to the jury in the case-in-chief.” Under these circumstances, we do not think that the error, if any, was preserved for review.

Two other issues raised on appeal we consider to be without merit.

We have searched the record for error prejudicial to the defendant and have found none. The defendant received a fair trial. Therefore, the judgment of the Circuit Court is affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and BOOK-OUT, JJ., concur.

DeCARLO, J., not sitting.

      . "... [T]he statute of 1915, authorizing the husband and wife to testify in criminal cases (Acts 1915, p. 942), says, ‘The husband and wife may testify,’ etc., thus giving to them the election as to whether they become competent witnesses, and until the election is made, neither is a competent witness in a criminal case.” DeBardeleben, 16 Ala.App. at 367, 77 So. at 980.

      . “The husband or wife has the right to elect to testify. Until that election is made he or she is not a competent witness. DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979.” Holyfield, 365 So.2d at 110-111.

      . In denying the petition for writ of certiorari the Alabama Supreme Court stated, “this court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Criminal Appeals.” Hurst, 293 Ala. 548, 307 So.2d at 73-74.


source: Caselaw Access Project

author: TORBERT, Chief Justice. ALMON, Justice,

license: Public Domain

text:
    Ex Parte Douglas M. BILLINGSLEY. (Re: Douglas Billingsley v. State of Alabama).
    79-691.
    Supreme Court of Alabama.
    May 8, 1981.
    Rehearing Denied July 10, 1981.
    B. Greg Wood of Love, Love, Lawrence & Wood, Talladega, for petitioner.

      Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for respondent.
   TORBERT, Chief Justice.

At issue is whether a prosecutor may comment on a defendant’s failure to call his spouse to testify where it appears the spouse’s testimony would be probative on the question of defendant’s guilt or innocence. We hold that such comment is improper.

Defendant/petitioner was convicted of second degree murder and sentenced to twenty years’ imprisonment. The Court of Criminal Appeals affirmed. As one basis for its decision, the Court of Criminal Appeals held that a spouse is a competent witness until he or she elects not to testify. The court reasoned that, since the spouse is competent and is presumably biased in favor of his or her defendant spouse, the prosecutor may comment on defendant’s failure to call the spouse. Billingsley v. State, [MS. April 22, 1980] 402 So.2d 1052 (Ala.Crim.App.1980). We granted certiora-ri to resolve the apparent conflict between the opinion of the Court of Criminal Appeals and cases such as Arnold v. State, 353 So.2d 524 (Ala.1977); Holyfield v. State, 365 So.2d 108 (Ala.Cr.App.), cert. denied, 365 So.2d 112 (Ala.1978); and DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979 (1918).

Detailed recitation of the facts is unnecessary. However, it appears that defendant’s wife was with him (or close by) when the alleged murder occurred. At trial, neither the prosecution nor the defense called defendant’s wife to testify. Over defendant’s objection, the trial court allowed the prosecutor in his closing argument to comment at length about defendant’s failure to call defendant’s wife as a witness. On appeal, the Court of Criminal Appeals held that the trial judge’s ruling was proper.

At common law a spouse was incompetent, to testify either for or against a mate. Holyfield v. State, 365 So.2d 108 (Ala.Crim.App.), cert. denied, 365 So.2d 112 (Ala.1978). The Alabama legislature enacted a statute, however, which modified the common law by providing that a spouse may elect to so testify. See, Code 1975, § 12-21-227. The election is made by the witness-spouse and the defendant-spouse can in no way compel or prevent the testimony. Holyfield v. State, 365 So.2d 108 (Ala.Crim.App.), cert. denied, 365 So.2d 112 (Ala.1978). Alabama appellate courts have construed the statute as abrogating the common law to the extent that a spouse becomes a competent witness only after electing to testify. See, Arnold v. State, 353 So.2d 524 (Ala.1977); Holyfield v. State, 365 So.2d 108 (Ala.Crim.App.), cert. denied, 365 So.2d 112 (Ala.1978); DeBardeleben v. State, 16 Ala.App. 367, 77 So. 979 (1918). Defendant’s wife, not having elected to testify, was an incompetent witness. Thus, it was error to allow the prosecutor to draw an adverse inference from defendant’s failure to call her. See, 88 C.J.S. Trial § 184 p. 364 (1955).

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

ALMON, J., concurs specially.

ALMON, Justice,

concurring specially.

I concur with the majority opinion, and only mildly quibble with the use of the word “competency” rather than the word “privilege.”

At common law, a husband and wife could not testify against each other, and were thus considered incompetent as a matter of law. The statute, Code 1975, § 12-21-227, removed this incompetency and at the same time granted either spouse the privilege of testifying or not against the other as they chose.


text:
    Douglas BILLINGSLEY v. STATE.
    7 Div. 710.
    Alabama Court of Criminal Appeals.
    Aug. 4, 1981.
   After Remandment

BOWEN, Judge.

This case is reversed and the cause remanded on authority of the decision of the Supreme Court of Alabama in Billingsley v. State, 402 So.2d 1060 (1981).

REVERSED AND REMANDED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Michael Ray PEAVY v. STATE.
    1 Div. 201.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    On Return to Remand Aug. 4, 1981.
    Michael Scheuermann, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

This is an appeal from a decision by the Mobile Circuit Court revoking the probation of the appellant. It is submitted to this court on briefs of the parties.

The record shows that the appellant pleaded guilty to grand larceny and was sentenced to three years in the penitentiary. The sentence was suspended and the appellant was placed on probation for a period of five years.

On May 9, 1980, a motion was made by the district attorney to revoke the probation. After a hearing on October 17, 1980, the motion was granted and probation was revoked.

During the hearing the State probation officer testified that one of the terms of appellant’s probation was that he could not possess a pistol. The State then produced a witness who testified that he had known the appellant for sixteen or seventeen years, and that, in 1980 he sold the appellant a gun. The witness admitted however, that the gun would not shoot because he had welded a metal rod into the barrel.

A detective from the Mobile County Sheriff’s Department testified that he was present at a preliminary hearing on May 6, 1980, wherein the appellant had been bound over to the grand jury on a homicide charge. Appellant’s probation was revoked on October 17, 1980. The record contains an amended statement of the case which indicates that on March 12, Í981, the appellant was acquitted of the murder charge by a Mobile County Circuit Court Jury.

The record shows compliance with Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). See Wilcox v. State, 395 So.2d 1054 (Ala.1981). Although the judge based his decision to revoke probation solely on the fact that appellant had been bound over at the preliminary hearing, there is other evidence in the record which shows that the appellant may be guilty of other breaches of his probation. In a supervisory report on delinquent probation, the probation officer listed the following four delinquent charges: (1) arrest on the homicide charge; (2) possession of a pistol; (3) possession, use, sale and distribution of drugs; and (4) association with felons. Any of the other charges apart from the homicide charge would have been sufficient to trigger revocation of appellant’s probation. The only evidence presented at the revocation hearing concerned the homicide charge and the possession of the pistol. No evidence was presented on the other two charges.

Therefore, we remand the cause to the Mobile District Court for an evidentiary hearing to determine the disposition of the homicide charge and whether or not these other charges can be substantiated so as to sustain the revocation.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

DeCARLO, Judge.

After return to remand the presiding judge of the Mobile District Court held an evidentiary hearing and found that, on March 12, 1981, the appellant had been found not guilty on the homicide charge. Also, the State withdrew its motion to revoke appellant’s probation. Therefore, the appeal is dismissed as moot.

APPEAL DISMISSED.

All the Judges concur.


text:
    Charlie James MANIGAN, alias v. STATE.
    6 Div. 242.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and L. Gilbert Kendrick, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

First degree arson; life.

Birmingham Fireman Kenneth R. Goodwin testified that between 11:30 and 12:00 P.M., on February 24, 1979, he, along with other firemen in his company, answered a call for assistance at a duplex home located at 23-B 1st Place North in Birmingham. He stated one side of the house was well involved in fire with flames shooting from the front door and a window in the front room. Fireman Goodwin stated that the fire was extinguished in fifteen to twenty seconds, and after the smoke cleared, two bodies were discovered inside the house.

Goodwin testified that he had been employed as a fireman for twelve years and had fought hundreds of fires. He said that during the course of his employment, he had received training in identifying the origins and causes of fires. He testified that he knew the characteristics of a flammable liquid fire, which was identified by a specific char pattern in the fire-affected area.

Upon arriving at the scene, Goodwin noticed the front door to the house had been knocked open. He observed the condition of the padlock and hasp after the fire had been extinguished. He stated that the fire inspector was called due to the fire-related fatalities. Goodwin stated that a fire’s point of origin is determined by the deepest char pattern left after extinguishing the fire. He testified that in a flammable liquid fire, the point of origin will have a deeper char pattern and as the liquid vaporizes, smaller, less deep char patterns will be found. According to Goodwin, there were two or three points of origin of the fire: in and around the front door; under a window in the front room; and in and around a bed in the middle room. He testified that based on his training, experience, and observation of the scene, the fire was started by a flammable liquid.

On cross-examination, Goodwin stated that he did not know if a time was determined when the fire started. He stated that he did not observe the condition of the back door but he did remember that one the two windows in the front room was shattered. He acknowledged that the broken window could have existed before the fire, and been caused by the water pressure of the hose, or resulted from the fire itself. Goodwin was present when the appellant identified one of the victims as his wife. He stated that the appellant was upset, screaming and, generally out of control.

Birmingham Fireman James Wint testified that he was a member of the second engine company to arrive at the scene. He stated that he found two bodies, one located in the front room on the couch and the second located in the middle room half-on and half-off the bed. Wint determined that both people were dead and stated that they were identified as the appellant’s wife and Eula Hughes. Wint said that he did not observe a kerosene lamp on or around the front room mantel. Wint identified the same points of origin of the fire as those previously indicated by Fireman Goodwin. He also found another distinctive char pattern in the middle room on a wall above a dresser. He, too, gave his opinion that the fire was caused by a flammable liquid.

On cross-examination, Wint stated the “possible” point of origin was near the front door although he later clarified his answer and stated that the char pattern there was caused by the fire. He stated that there was no way to determine whether a char pattern found in the house existed prior to the fire. He said that he did not observe the back door but he noticed that all the windows in the house were broken.

Birmingham Fire Marshall Howard Cooper testified that he was senior fire mar-shall and had been a fire inspector for seventeen years. He stated that the instant fire was reported at 11:43 P.M., on February 24, and that he arrived on the scene approximately fifteen minutes later. He made a preliminary examination to inspect the location of the bodies of the two victims. He stated that Eula Hughes was severely burned, while the defendant’s wife suffered only minor burns. He observed the padlock and hasp on the front door and noted that the lock was not open and a portion of the hasp had been pulled out of the door facing. He stated that the nails which formerly attached the hasp to the door facing were not rusted. He noted the same three points of origin of the fire as those explained by Fireman Goodwin, but he testified that the front door area was the primary point of origin.

Cooper stated that a flammable liquid accelerates the growth of a fire and produces a quick heat. He testified that the bed had burned from the top downwards to the floor and the char patterns examined there were consistent with a fire caused by a flammable liquid. Cooper also stated that the house had no gas or electric services at the time of the fire. He said that he found the remains of a kerosene lamp near the mantel in the front room, although no charring of the wood was present in that area.

Cooper stated that his training and experience led him to suspect the use of an accelerant or flammable liquid in an area which is heavily charred but which contains nothing to ignite a fire. He explained that ordinarily the area around a front door is not a point of origin for a fire, because there is usually no material present in that area which would create a deep char pattern upon being ignited.

In a flammable liquid fire, according to Cooper, the char pattern will usually follow the flow of the flammable liquid upon the surface of whatever it was poured. Fire Marshall Cooper gave his opinion that a flammable liquid caused the instant fire.

On cross-examination, Cooper stated that the back door was open when he arrived at the scene and the slide bar lock was broken. He said that tests were preformed on a sample taken from the bottom threshold of the front door and from remnants of clothing found on the body of Eula Hughes in an attempt to determine the presence of a flammable liquid. The test results were negative. He stated, however, that such tests are inconclusive because it is possible for all the flammable liquid to be totally consumed in the fire.

Cooper stated that he was present when the appellant identified the body of his wife. He stated that appellant was restrained from entering the house for a period of time since the fire had not been completely extinguished and the house secured. He described the appellant as emotional and upset.

On redirect examination, Cooper testified that kerosene and gasoline are accelerants and are consumed prior to other materials such as wood. He stated that where there has been extensive burning, evidence of flammable liquids may not be found.

Birmingham fireman, Captain J. H. McQueen, testified that he was a member of the second company that arrived upon the scene. He went to the back door and, finding it locked from the inside, pushed it open with his shoulder. He entered the kitchen and proceeded to the middle room, finding no fire in either. McQueen inspected the damage to the house and said that in his opinion the fire was caused by a flammable liquid.

Chief medical investigator Jay Glass of the Jefferson County Coroner-Medical Examiner’s Office testified that he assisted in the autopsies of the appellant’s wife and Eula Hughes. He testified that the cause of death for both women was asphyxia due to carbon monoxide poisoning. He stated blood samples from each body were extracted and tested for alcohol content. The results indicated that both women had a .28 blood alcohol level.

Glass testified that the presence of alcohol in the system would result in lowering the amount of carbon monoxide one would need to inhale before losing consciousness.

On cross-examination, Glass stated that only tests for blood alcohol and carbon monoxide levels were performed, and in his opinion, the women were intoxicated at the time of death.

Mrs. Leona Hamilton, the mother of appellant’s wife, stated that the house that burned was her residence and she had rented it for about eight years. Her daughter and the appellant had lived there with her for about a year. On the night of the fire, however, Mrs. Hamilton spent the night with friends. She testified that she never had a lock on the front door.

Eddie Davis testified that between 5:00 and 6:00 P.M., on February 24, he was at appellant’s residence with appellant’s wife. Mr. Davis stated that he and Mrs. Manigan were sitting in the front room talking when appellant entered the house. He testified that both he and Mrs. Manigan were clothed. Mr. Davis said that, upon entering, the appellant said, “What in the hell is going on in here?” Appellant told Davis that he was “going to whip your so and so,” and said to his wife, “Bitch, I am going to kill you if it is the last thing I do.” Davis and the appellant began to fight and appellant hit Davis with an object and cut his head. Davis stated that he fell off the front porch, and after the fight had ended, walked home. Later in the evening Davis was treated at Cooper Green Hospital for his injuries sustained in the fight. Davis testified that when he was walking away from appellant’s residence it was the last time he saw Mrs. Manigan alive.

On cross-examination, Davis stated that he was sitting in a chair and Mrs. Manigan was lying on the sofa when they were talking. He said that he had not been drinking and, as far as he knew, neither had Mrs. Manigan. Davis testified that he remembered having a conversation with Birmingham Police Sgt. F. M. Knight on February 27,1979, around 2:51 P.M., at his house. He stated that he did not remember telling Sgt. Knight that Mrs. Manigan had her clothes “down.” Davis testified that he did not have sex with Mrs. Manigan on February 24, and denied telling Sgt. Knight on February 27 that he had. He stated he told Sgt. Knight that he had been “going” with Mrs. Manigan at the time of the fire. Davis testified that he had had sexual relations with Mrs. Manigan in the past, but not on February 24.

On redirect examination, Mr. Davis testified that he did not see the defendant hit Mrs. Manigan.

Walter Miles, who lived two blocks from the scene of the fire, stated that the appellant visited him twice on the day of the fire. Mr. Miles testified that, “Around about eleven something” the appellant came to him and asked to borrow a lock. Miles stated that he was making coffee at the time and he went into the kitchen to attend to it when the appellant made his request. He told the appellant he did not have an extra lock and the appellant left. Miles testified that he kept the lock for his front door on the mantel when he was not using it, and that the appellant had been standing next to the mantel while they had been talking.

Miles stated that approximately thirty minutes later the appellant returned to his house and told him, “Well, I locked the house. I’m headed up to Minnifieid’s now.” Miles stated that the appellant told him that his sister had picked up his wife and taken her to West End. Miles testified that the defendant told him that he needed a lock because he had “some things” in the house although he did not say what. Miles testified that when he later left his house to go to the scene of the fire he looked for the front door lock but could not find it. He stated that it was there before the appellant came to his house the first time.

Eddie Lee Gosha testified that he knew the appellant and remembered the evening of the fire. He stated that on February 24 between 10:00 and 11:00 P.M., he saw the appellant about two and one-half blocks from the scene of the fire carrying an axe. Gosha testified that he told the defendant that if the police caught him with the axe they would “tear his head up.” Appellant replied that he was going to kill him a “m_f_” Gosha testified that during the two to five minutes that he talked to the appellant, a car drove by and as it did, the appellant threw the axe down to the ground only to pick it up after the car had passed.

Mary Rose Polion testified that she lived in the neighborhood where the fire occurred. She stated that prior to the fire she would go visit Mrs. Hamilton, appellant’s mother-in-law, and care for her since Mrs. Hamilton was blind. Mrs. Polion testified that she never knew the front door to be locked.

The day after the fire, Mrs. Polion had a conversation with the appellant concerning the fire. She asked the appellant why he had locked the women in the house, to which he replied that he was trying to protect his radio and his sleeping wife. Mrs. Polion testified that the appellant told her that he knew Mrs. Hughes was not asleep because he had given her a cigarette and then lit it for her.

Birmingham Fireman Kenneth R. Goodwin was recalled and testified that on February 24, around 6:00 P.M., he treated Eddie Davis for several bruises and cuts on his head.

Detective Sgt. Selman Knight of the Birmingham Police Department’s homicide division testified that he investigated the deaths of the two women killed in the fire. Outside the presence of the jury, Sgt. Knight testified that he had talked to appellant on two occasions, February 28 and March 2. He stated that at both times, the appellant was not in custody and the conversations were taped. Knight said both conversations occurred at City Hall. He stated that no promise, hope of reward, threat or inducement was made to the appellant to make a statement. Sgt. Knight testified that appellant’s Miranda warnings were read and explained to him. He testified that accurate transcriptions of the taped statements were prepared.

On cross-examination, Knight testified that appellant was arrested on March 2, approximately twenty-three minutes after completing his statement.

The trial court overruled the appellant’s general objections to the statements and, after excising certain inadmissible portions, admitted them into evidence.

After the jury was recalled, Sgt. Knight repeated the above testimony and read the statements to the jury. In the February 28 statement, the appellant stated, in pertinent part, that he did not set the house on fire. He said that he found his wife partially naked with Eddie Davis. He then threw his wife out of the house and shortly thereafter helped her into the house and to the bed. A short while later he went to get some cigarettes. During his trip, he stopped at Walter Miles’ house to inquire about a lock. Upon returning and locking the door he saw Eula Hughes in an alley close to the house and escorted her back to the house. He unlocked the house, let her in, lit a kerosene lamp on the mantel, and gave her a cigarette. The appellant stated that he then relocked the door and returned to Mr. Miles' house. The appellant said that Mr. Miles had an extra lock and gave him one with the key. The appellant stated that he locked the door to protect his radio and his wife who was naked in the bed and, apparently, asleep. He stated that he went to Ola Mae Hall’s house, had about three drinks of whiskey, and remained there until after midnight.

The appellant said that they used kerosene lamps to light the house and he had last purchased kerosene about three or four days before the fire. He stated that the lamp in the front room contained all the kerosene in the house at the time of the fire. He denied lighting a cigarette for Eula Hughes and stated that he thought the fire was caused by Mrs. Hughes’ breaking the kerosene lamp while attempting to light her cigarette. The appellant denied threatening his wife or Eddie Davis after finding them together. The appellant said that they kept firewood in the house and that he cut it with his axe, but he had not seen the axe since the fire. He denied telling anyone that he was going to kill his wife or anybody.

In the March 2 statement the appellant recalled the details of the February 24 fight with Eddie Davis. He said someone had told him that Mr. Davis was having sexual relations with his wife. He said that he owned an axe but did not know where it was after the fire and did not borrow one from Walter Miles. He stated that he had been carrying an axe in the alley near his residence the evening of the fire when he met a friend, Eddie Lee Gosha. He denied telling Gosha or anyone else that he was going to kill someone. He stated that he had removed the axe from his house prior to locking the front door. He then set the axe by the fence in the alley when he saw the fire trucks at his house.

On cross-examination, Sgt. Knight stated that on March 2, the appellant had been drinking but was not drunk when the statement was made. He also testified that on February 27 he and Sgt. W. D. King took a statement from Eddie Davis at his home wherein Mr. Davis said he had sex with Mrs. Manigan on February 24.

The State recalled Birmingham Fire Marshall Cooper for the purpose of testifying to certain statements made by the appellant at the scene of the fire. Cooper testified, out of the presence of the jury, that on February 25 around 12:30 A.M., he talked to the appellant outside the burned house. It was raining lightly and they got into a nearby police car. At the time he talked to the appellant he had not formed an opinion about the origin of the fire and he was attempting to get assistance from the appellant in order to determine what occurred at the house and what may have caused the fire. Cooper stated it is standard procedure to talk to the residents of a burned building. He testified that the appellant was not under arrest at the time they talked, was not a suspect, and voluntarily came to the scene without force or coercion.

On cross-examination, Cooper testified that he investigates a fire if, in addition to other reasons, a death or injury occurs or the fire is “suspicious in nature.” He stated that at the time he talked to the appellant he had entered the house and had viewed the two victims, but had not reached a conclusion about the cause of the fire. He stated that anyone who had anything to do with the house could have been considered a suspect since the cause of the fire had not yet been determined. Fire Marshall Cooper stated the he sat on the front seat of the police car and the appellant sat on the back seat.

On redirect examination, Fire Marshall Cooper stated that the reason for getting into the car was to get out of the rain. He said that the following day he saw the appellant at the house but he was not in custody. Cooper testified that he offered the defendant no hope, promise, reward, or inducement to talk to him and did not threaten, coerce, or intimidate him.

The trial court ruled the statements by the appellant to Fire Marshall Cooper were admissible. •

After the jury was recalled, Cooper repeated the pertinent portions of his earlier testimony and recalled the conversation he had had with the appellant. Appellant told him that there was no gas or electric service in the house, no fire in the fireplace, and no heater on the middle room. The appellant told him that one kerosene lamp on the front mantel was lit when he left. The appellant did not knew what time he had padlocked the front door and left. After Cooper’s inquiry, the appellant left the scene and returned approximately twenty minutes later with a key to the padlock. The appellant told Cooper the location of his wife and Mrs. Hughes when he had left and stated that he gave Mrs. Hughes a cigarette and lit it. The appellant told him that he thought the fire could have been started by Mrs. Hughes’ cigarette. Cooper testified that the appellant stated that after leaving the house he went to a service station to buy some cigarettes and afterwards went to Mrs. Hall’s.

Mrs. Ola Mae Hall testified that on February 24, the appellant inquired whether he could borrow a lock. Mrs. Hall told him that she did not have an extra lock. The next time she saw him was when the police brought him to her house to stay while the fire was extinguished and bodies removed. After Mrs. Hall’s testimony the State rested, and the defense moved to exclude the State’s evidence for failure to prove a pri-ma facie case.

Appellant took the stand and testified that he came home during the afternoon of February 24 and, in response to his knock on the front door, heard someone say, “Here us are down here.” The appellant entered the house and found his partially naked wife with Eddie Davis on the floor of the front room. He said his wife was drunk. A fight ensued between Eddie Davis and the appellant. Around 8:00 P.M. he left the house and went to Walter Miles’ to inquire about borrowing a lock. He stated that Mr. Miles gave him a lock and thereafter he returned to his house, locked it with his wife inside, and left. He met Eula Hughes in an alley near his house, and, with Mrs. Hughes, returned to the house, unlocked it, let her in, relocked it, and they went to Mrs. Hall’s house. He stayed there until midnight and then went home. The appellant stated that he locked the front door because of the condition of his wife. He said the back door was locked from the inside. He denied starting the fire.

On cross-examination, the defendant admitted having been convicted in four burglary and grand larceny trials and two buying, receiving, concealing stolen property trials. He stated that during the day he had drunk three beers and split a half pint of whiskey beginning around 9:00 A.M.

Appellant testified to the details of this fight with Eddie Davis and stated that he threw his wife into the front yard although he did not hit her. After the fight, he carried her to the. bed. He stated that he slapped his wife only to awaken her. Appellant told Davis that if he caught him again with his wife he would kill him, but denied making a similar threat to his wife.

When he went to Walter Miles’ house around 8:00 P.M., to borrow a lock, he told Miles that no one was at his house, that his wife was with his sister in West End, and that he would return the lock the next day. Appellant said he told Miles that so that Miles would give him a lock. He stated that he always kept the back door locked and he checked it that evening.

The appellant testified to meeting Eula Hughes in the alley and letting her in the house. After initially denying that he lit Mrs. Hughes’ cigarette, he then admitted lighting it and lying to the police. He denied going anywhere except to Mrs. Hall’s after he left his house and admitted telling Eddie Lee Gosha that he was going to kill someone, although he stated that he did not mean it.

The appellant stated that he did not know why he had the axe with him when he met Gosha. He acknowledged that he had the key to the lock with him when he talked to Fire Marshall Cooper and did not have to go to Miles to get it.

I

The appellant challenges the sufficiency of the State’s evidence and maintains that the totality of the circumstances did not warrant a conviction.

The State’s case is predominantly based upon circumstantial evidence. In Cumbo v. State, Ala.Cr.App., 368 So.2d 871, cert. den. Ala., 368 So.2d 877 (1979), we stated:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” [Citations omitted]

It is our duty upon appeal to determine whether any theory of the evidence exists from which the trier of fact could have excluded every hypothesis except guilt beyond a reasonable doubt.

After a careful review of the evidence, we find that the trial court did not err in overruling the appellant’s motion to exclude the State’s evidence. The evidence presented was sufficient for the jury to reasonably infer that the appellant committed the crime.

II

Appellant contends that the trial court erred in admitting his statements to Fire Marshall Cooper on the ground he was not given his Miranda warnings.

The trial court had before it the following facts elicited on voir dire examination from Fire Marshall Cooper: (1) Cooper had not determined the cause and origin of the fire when he talked to the appellant, (2) he was not investigating the cause of the fire when he talked to the appellant, but had only viewed the location of the victims’ bodies, (3) his purpose in talking to the appellant was to get assistance from him to aid in determining what happened, (4)an interview with residents of burned buildings was a standard procedure, (5) the interview took place in the police ear only because it was raining outside, (6) the appellant was not a suspect at the time Cooper talked with him, and, (7) appellant was not under arrest at the time of their conversation.

It is clear that the appellant was not subjected to a custodial interrogation when he conversed with Fire Marshall Cooper. The questioning was investigative rather than accusative, and no inquiry had focused on appellant. Consequently, the constitutional guarantee espoused in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), did not attach. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Kelley v. State, Ala.Cr.App., 366 So.2d 1145 (1979); Reno v. State, Ala.Cr.App., 377 So.2d 122 (1976).

III

Appellant also insists that the trial court erred in admitting his February 28 and March 2 statements to Sgt. Knight. On appeal, he assigns as error the ground that the statements were involuntary and without the benefit of the procedures outlined in Miranda, supra. Appellant also asserts that the P’ebruary 28 statement should not have been admitted because Sgt. Knight knew the contents of appellant’s conversation with Fire Marshall Cooper.

We note that appellant did not raise the latter ground at trial, but raised it initially on appeal. We will therefore limit our discussion to the ground of objection raised at trial and ruled upon by the trial court as he is bound by the objection stated at trial. Franklin v. State, Ala.Cr.App., 357 So.2d 364, cert. den. Ala., 357 So. 368 (1978). At trial, he made only a general objection to the admission of both statements, though we consider the general objection to raise the questions of voluntariness and the proper Miranda warnings being given.

The record indicates that the proper voluntariness predicate was laid, and Miranda warnings given, respectively, on both occasions. It further illustrates that the appellant was not in custody at the time of either statement and that both are nonin-culpatory in nature. See Glover v. State, Ala.Cr.App., 347 So.2d 592 (1977); Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975), cert. den. 295 Ala. 414, 327 So.2d 740 (1976).

Whether a confession is voluntary is a question for the trial judge to determine. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967). He need only be convinced by a preponderance of the evidence that it was voluntarily made. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Baldwin v. State, Ala.Cr.App., 372 So.2d 26, affirmed, Ala., 372 So.2d 32 (1978).

The evidence presented by Sgt. Knight was sufficient to support the trial court’s ruling that the appellant’s statements were voluntarily made. Consequently, the trial court properly admitted the statements into evidence.

IV

The appellant complains that the State in its closing argument improperly drew an “inference from another inference,” in violation of the rule set out in Gamble, McElroy’s Alabama Evidence, § 21.01(8) (3d ed. 1977).

We quote the pertinent portion of the State’s closing argument:

“MR. BLACK: What they wanted to do in this instance was what he knew and what he would say, because he wasn’t giving an opinion, he was giving facts. “He said facts, and he told two people, the firemen and Mrs. Polion, told them both, said, ‘Before I left, I lit that lady’s cigarette.’
“That’s a fact. That is not an opinion. He is saying that as a fact, and, then, he turned right around and he told the police, as soon as he thinks, ‘Weil, it would sound better if I made it sound like she could have set that fire by knocking that lamp off the shelf. So, if I had already lit the cigarette for her, then she wouldn’t have any reason — .
“MR. FUHRMEISTER: We object to what he thought.
“THE COURT: Overrule. He may draw inferences.” [Emphasis added]

A review of the testimony of both Mrs. Polion and Fire Marshall Cooper reveals that the appellant told both witnesses that he had lit Mrs. Hughes’s cigarette. In addition, during his cross-examination, appellant reluctantly admitted telling Fire Marshall Cooper that he had done the same. He further admitted that he had lied to Sgt. Knight when he told him that he had not lit the cigarette. Therefore, whether or not appellant lit the cigarette for Mrs. Hughes was not an inference, as appellant suggests, but a matter of disputed fact which the jury had to resolve. The inference of guilt, if any, arose from the fact that appellant made inconsistent statements, not from the truth or falsity of the matter contained in the statements.

To constitute reversible error, the statement of counsel in argument must be made as a fact which is unsupported by any evidence, and the argument must be pertinent to the issues at trial or its natural tendency must be to influence the finding of the jury. Flint v. State, Ala.Cr.App., 370 So.2d 332 (1979); Jordan v. State, 40 Ala.App. 693, 122 So.2d 45 (1960). Counsel for both the State and defendant are allowed wide latitude in drawing reasonable inferences from the evidence in their closing arguments. Hope v. State, Ala.Cr.App., 378 So.2d 745, cert. den. Ala., 378 So.2d 747 (1979); Brown v. State, Ala.Cr.App., 374 So.2d 391, affirmed Ala., 374 So.2d 395 (1979). A prosecutor as well as defense counsel has a right to present his impressions from the evidence, if reasonable, and may argue every legitimate inference. Williams v. State, Ala.Cr.App., 377 So.2d 634, cert. den. Ala., 377 So.2d 639 (1979); Borden v. State, Ala.Cr.App., 337 So.2d 1388 (1976).

Clearly, there were facts in evidence from which the assistant district attorney could have drawn the inference that appellant’s inconsistent statements reflected his guilt. The State’s closing argument was not a violation of the rule stated in § 21.01(8) of Gamble, McElroy’s Alabama Evidence (3rd ed. 1977), and we find no error in the trial court’s ruling.

We have searched the record for error and finding none, the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Charlie James MANIGAN. (Re: Charlie James Manigan, alias v. State of Alabama).
    80-693.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ronald H. SPEARS v. STATE.
    8 Div. 471.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.
    John Mark McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

The indictment in this case charged in material and pertinent part that defendant “did, with the intent to commit the crime of Murder (Section 13A-6-2 of the Code of Alabama) attempt to commit said offense by shooting John R. Scott with a pistol, in violation of § 13A-4-2 of the Code of Alabama.’’ The verdict of the jury was, “We, the jury find the defendant guilty of attempted murder.” The court sentenced defendant (appellant) to imprisonment for thirty-five years.

Code of Ala., § 13A-4-2(a) provides: “A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.” § 13A-4-2(d) provides: “An attempt is a: (1) Class A Felony if the offense attempted is murder .... ” The punishment for a Class A Felony is imprisonment “for life or not more than 99 years or less than 10 years.” § 13A-5-6(a)(l).

According to the undisputed evidence, on the night of January 23-24, 1980, John R. Scott, the alleged victim, was shot by defendant while both were on the upper level of the split level home of defendant’s ex-wife. The couple had been divorced about fourteen months. For a considerable period after the divorce, the children of the couple, eighteen, thirteen, and eleven years of age respectively, lived with their mother. During that time, the victim, a married man, and defendant’s ex-wife engaged in a recurrent adulterous relationship at the home, of which defendant had been informed. The youngest child moved into the home of the father the first of January 1980. The thirteen-year-old child, a son, was spending the night at his father’s home on the night of the tragedy.

The undisputed evidence also shows that, on the same occasion that defendant shot John R. Scott with a pistol, defendant also shot and killed his ex-wife.

According to the testimony of defendant’s eighteen-year-old daughter, she went to bed on the lower level about 11:30 on the night of January 23-24; some time after she had gone to sleep, knowing that her mother and Scott were on the upper level, she heard some scuffling, some shots, the voice of her father yelling and cursing and the voice of her mother telling him to get out. The witness became afraid, ran out of the back door and went to the home of a nearby neighbor.

Officers were alerted to the alleged crime by telephone calls from a man who was still holding the phone while in a wounded condition, and who they learned was John R. Scott, who, according to the evidence, was sent to the hospital where it was determined that he had two gunshot wounds, one a “through and through” bullet wound of the chest and the other a bullet wound of the right arm. The physician was not positive as to whether the wounds were caused by one bullet or by two.

The testimony of John R. Scott was in part as follows:

“Q. Then [after Mrs. Spears’ daughter had gone to bed downstairs] what did you and Mrs. Spears do?
“A. We were sitting at the dining room table [on the upper level] talking, having a drink.
“Q. Had you been drinking that night? “A. Yes, I had.
“Q. Do you remember Mr. Spears coming to the house that night?
“A. Very definitely I do.
“Q. We’ll come back to the drawing in a minute. What did you see or hear about Mr. Spears arriving at the house?
“A. It was late and Dorothy alerted to a sound.
“Q. About what time was it?
“A. It was after midnight, probably closer — I do not know, probably closer to 1:00. She alerted to a sound. She dashed through the dining room to the front window, looked out, then she came back to that big window in the dining room in the rear of the house and looked out, and she said, ‘That’s Ron.’ You could hear some commotion at the back of the house.
“I looked out the rear window and saw a person who looked a great deal like Ron Spears. I followed her into the bedroom, the back bedroom, where the window was right above the patio. And there I saw Spears on the patio, he was progressing backwards and then came forward as though he were throwing himself at that lower basement door.
“At that point, I took Dorothy by the hand and attempted to run for the front door to get out of the house. And she broke my grip and, said, ‘We’ll never get out the front door. This is my house,’ words to this effect, ‘This is my house, he has no business here,’ etc., and gave me a push indicating that I should go into one of those — in that unoccupied bedroom. Do you want me to point to it?
“Q. Yes, sir, if you would.
“A. In here.
“MR. MORRIS: In where?
“A. In this bedroom, which would be the southwest bedroom of the house. Now, from there on, the action took place so very rapidly, it took place a lot more quickly than I can say it.
“There was Dorothy’s voice saying, and I presume Ron’s voice, there were his words like he was saying something to the effect that, ‘You’re no damn good bi — ,’ whatever, and she was saying, ‘Get out of this house, and so forth, and then there was a gunshot. There was a loud, loud explosion followed by a quick scuffling sound and a second loud explosion. “At that point, I opened that door where I was, so I came out of here. Dorothy’s head was lying in that doorway right there, and I reached down to her like that when Ron Spears sprang out of this bedroom door opening, and if I may act it out, like this, with a pistol in his hand, and he fired. I was hit once with a bullet, I went back through that doorway. I tried to get that door closed and the gun fired again.
“That gun was a semi-automatic big frame pistol. And when that second shot fired either I opened the door or the blast pushed the door open, and Ron departed from this hall and out here, or at least he turned as though he were going toward the front door. At that point, I was still on my feet. I walked from here to this window. Ron had parked his car out here on this side. He got in the vehicle, he had backed up into the street, and I could see the silhouette of an Olds Cutlass. I was shopping for one at the time. And then it departed in a westerly direction. “I walked from there back down to this hall. I just looked at Dorothy and knew that she needed help more than I did, then I walked right to that telephone and I called Huntsville City Police, and I told them—

No witnesses testified on call of the defendant.

We see no reasonable basis for a contention that the evidence was not sufficient to support the verdict.

Among several photographs that “accurately” depicted and portrayed the scene of the alleged crimes at the time they occurred was State’s Exhibit No. 3-F, which had in it a picture of the body of Dorothy Spears. As to the objection and the ruling thereon, the transcript shows:

“MR. MORRIS: Yes, sir, A, B, C, D, E, and F and we object to 3-F on the grounds that it has no relevance.
“MR. SIMPSON: Your Honor, the State is going to have testimony from Mr. Scott that that’s what he saw from the door here that he was shot, and that’s what he saw.
“THE COURT: Overruled.
“MR. MORRIS: Further grounds, for the record, Your Honor, we state it’s introduced to inflame the minds of the jury, has no relevancy whatsoever to this case, that the photograph itself shows no relevant evidence such as bullet holes or any damage to any physical properties whatsoever other than to depict the body of Dorothy Spears who is not an issue in this case.
“THE COURT: 3-A through F is admitted.”

The evidence as to the action, the shooting, the fall, the death and the lying on the door of Mrs. Spears, flowed freely from the mouths of witnesses, on direct examination and on cross-examination, without objection from either the State or the defense. The locations of the rooms, the halls and the three individuals involved were the subjects of intense interrogation. There was evidence as to the location of the body of Mrs. Spears. Photographic evidence thereof had the same reasonable tendency to prove or disprove some material fact in issue as did the oral testimony thereof, and, therefore, was not subject to the objection based on claimed irrelevancy. Farris v. State, 57 Ala.App. 390, 328 So.2d 640 (1976). Gruesomeness is claimed as an additional ground of objection, but the picture does not show gruesomeness other than does the usual picture of any other dead person. Even if there were accentuating gruesomeness in the picture, it is nevertheless admissible if it tends “to shed light on, strengthen or illustrate the truth of other testimony.” Richardson v. State, Ala.Cr.App., 376 So.2d 205, 208, cert. denied, 376 So.2d 228 (1979); Lewis v. State, Ala.Cr.App., 339 So.2d 1035, cert. denied, 339 So.2d 1038; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62 (1974).

Appellant bases another assertion of error on the following that occurred during the State’s closing argument to the jury:

“MR. MORRIS: Your Honor, I object to that, telling about the life or death of Dorothy Spears. That’s not within the issues of this case. The issue is whether he attempted to kill Mr. Scott on that occasion.
“THE COURT: Overruled.”

Appellant argues, “The Statement made by the prosecutor in his summation had the effect of raising in the jury’s mind, considerations, which it is not assigned to make, namely, whether or not appellant had ‘murdered’ Dorothy Spears prior to shooting John Scott.” The transcript does not show the argument of State’s counsel to which the objection was made, which prevents a conclusive determination of the propriety of the actual language of the argument. Nevertheless, the objection itself assumes that it would have been improper for State’s counsel “talking about the life or death of Dorothy Spears,” which is an unwarranted assumption. As previously indicated, the life and death of Dorothy Spears became a subject of much of the testimony, without any objection on the part of defendant, much of which having been brought on cross-examination of witnesses for the State. For example, the following is found in the cross-examination of John R. Scott:

“Q. And you say you stepped out of this bedroom?
“A. That is correct, sir.
“Q. And you saw Dorothy in this bedroom?
“A. I said I saw Dorothy’s head right there at that doorway just as you would enter that bedroom. I’ll place her for you.
“Q. Now you opened the door?
“A. Yes, sir, I did.
“Q. And you said Ron Spears stepped out of where?
“A. I opened this door, Dorothy’s head was right there in that doorway, and I bent down to her and Ron Spears alighted, sprung out of that doorway.
“Q. How far would that have put Ron Spears from you at the time you said that he shot you?
“A. At the time Ron Spears shot me, I have not measured that, but it was at very close range, something like from here to there.”

Our review of the transcript convinces us that both parties realized that the death of Mrs. Spears and the injury to Mr. Scott were so closely related in point of time, place and persons that neither party would endeavor to close the door to evidence that may have primarily related to the death of Mrs. Spears. Each party had a right to comment on such evidence. Whatever is in evidence is considered subject to legitimate comment by counsel. Roberts v. State, Ala.Cr.App., 346 So.2d 473, cert. denied, Ex parte State, ex rel. Atty. Gen., 346 So.2d 478 (1977); Kirkland v. State, Ala.Cr.App., 340 So.2d 1139, cert. denied, Ex Parte Kirkland, 340 So.2d 1140 (1976); Henley v. State, 361 So.2d 1148, writ denied, Ex parte Henley, 361 So.2d 1152 (1978). The court was not in error in overruling defendant’s objection to the argument.

Appellant’s only other contention for a reversal is as to the failure or refusal of the court to instruct the jury in its oral charge as to the provisions of Code of Ala. 1975, § 13A-4-2(c), which provides:

“A person is not liable under this Section [§ 13A — 4-2, under which defendant was indicted and tried] if, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, he avoided the commission of the offense attempted by abandoning his criminal effort and, if mere abandonment is insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof. The burden of injecting this issue is on the defendant, but this does not shift the burden of proof.”

Appellant argues that he raised the point in the trial court by the following that is found at the conclusion of the court’s oral charge to the jury:

“MR. MORRIS: We object to the Court’s failure to give the charge that I thought yesterday afternoon I was advised you would charge. We object to his failure to give 13A-4-2(c) and that’s what we relied on as a defense and it would show that the pistol would have had more bullets in it, that through Mr. Scott that he walked away without taking his life. The defendant has injected that issue in the case and the Court’s refusal to give that charge hopefully is error.
“THE COURT: Ladies and Gentlemen of the jury, you may retire and consider your verdict.

The novelty of the question now presented for review indicates on its face that it deserves more discussion than we are disposed to give it. This, for the reason that the action taken in the trial court did not preserve the question for review on appeal. It has been repeatedly held in Alabama that any question of the court’s error in its refusal or failure to charge on a particular subject applicable under the evidence is not subject to review on appeal unless the appellant raised the question in the trial court by a requested written charge, and an oral request is not sufficient. Smith v. State, 53 Ala.App. 657, 303 So.2d 157, 159 (1974); Wells v. State, Ala.Cr.App., 378 So.2d 747, cert. denied, Ex parte Wells, 378 So.2d 756 (1979); Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979).

The irreviewability of the action of the trial court makes it unnecessary for that which would otherwise be an extended discussion of the perplexing question whether the evidence as a whole would permit an inference of “a voluntary and complete renunciation” of any “criminal intent” to commit murder. It would also involve the troublesome question whether there could be a renunciation as defined by sub-division (c) of § 13A-4-2 by conduct subsequent to an assault that had consisted of such an overt act as that of intentionally shooting a pistol at a vital area of a person at close range. Such questions should be left to cases in which they are definitely presented.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Ronald H. SPEARS. (Re: Ronald H. Spears v. State of Alabama).
    80-700.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Buddy Lee CRAFT v. STATE.
    8 Div. 475.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.
    Finis Royal, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Buddy Lee Craft was indicted for first degree murder in that he “did intentionally cause the death of another person, to-wit: John David Robinson, by shooting him with a shotgun,” in violation of § 13A-6-2, Code of Alabama 1975. After a jury’s verdict of “guilty as charged” the trial court sentenced appellant to thirty-five years’ imprisonment. Appellant’s motion for a new trial was denied and this appeal followed.

On May 12, 1980, John David Robinson was shot several times and killed with “buckshot” from either a .12 gauge or a .16 gauge shotgun. The state presented five eye witnesses who testified that they saw appellant and his brother, William Craft, at the time of the shooting and that both men were carrying shotguns. Four of the state’s witnesses saw appellant shooting in the direction of the victim as he, the victim, stopped his truck, jumped out, tried to elude the barrage of gunfire, and fell to the ground fatally wounded. One witness, Joyce Doss, saw appellant then walk out into the street, put his gun in his car and leave the scene.

Appellant and his brother, William Craft, who had already been convicted of murder in this same incident, testified that appellant did none of the shooting. They testified that appellant was, coincidentally, present at the time of the shooting and that rather than participate, he grabbed his brother’s child and took her to safety.

Captain Keith Smith of the Scottsboro Police Department investigated the crime and testified that five plastic plungers from a .16 gauge shotgun, five plastic plungers from a .12 gauge shotgun, the waddings for each, five .12 gauge shell casings, and a .12 gauge shotgun were found at the scene. The other shotgun, allegedly fired during the shooting was not found.

The jury was not convinced by the testimony of the appellant and his brother and chose, instead, to believe the five eye witnesses who said appellant participated in the slaying.

I

Initially, the appellant contends that the evidence was insufficient to sustain a conviction because the .16 gauge shotgun was not recovered and because the eye witnesses’ testimonies were conflicting. This contention is unfounded. Except for the testimony of the appellant and his brother, the eye witness accounts are uncontrovert-ed and consistent in that appellant was shooting at the victim at the time he received his fatal wounds. Though the .16 gauge shotgun was not recovered, the .16 gauge plastic plungers and waddings found at the scene support the eye witness testimony that two shotguns were fired at the victim. The jury chose to believe that the appellant was firing one of these weapons.

II

The appellant also appeals a ruling of the trial court which he contends was error by not granting his motion to require the state to elect to proceed against appellant either as a principal or as an accomplice.

In support of this contention, appellant cites the case of Brooms v. State, 15 Ala.App. 118, 72 So. 691 (1916). However, this case was expressly overruled by Joyner v. State, 16 Ala.App. 240, 77 So. 78, cert. denied, 201 Ala. 696, 77 So. 1000 (1917), which clearly stated that where, as in the instant case, only one offense is charged and evidence of only one “transaction” is established at trial, there is no need for an election from among one or more theories of “guilt”. Brown v. State, 44 Ala.App. 135, 203 So.2d 700 (1967).

Even if an election were required, the state obviously made its choice by producing overwhelming evidence that appellant in fact was a participant in the fatal shooting incident. Elam v. State, 26 Ala. 48 (1855); Deason v. State, Ala., 363 So.2d 1001 (1978), and cases cited therein.

Whether appellant is ultimately labeled a principal or an accessory is no longer of consequence in the law of Alabama. Section 13A-2-20, -23, Code of Alabama 1975; Stokely v. State, 254 Ala. 534, 49 So.2d 284 (1950); Kendrick v. State, Ala.Cr.App., 377 So.2d 1112, cert. denied, Ala., 377 So.2d 1114 (1979).

III

Appellant’s argument that the trial court erred in giving a complicity charge to the jury is, likewise, without merit. The trial court merely informed the jury of a correct rule of law, i. e. that an accomplice is now just as guilty as a principal in the eyes of the law in Alabama. Section 13A-2-20, -23, Code of Alabama 1975. While this charge appears to have been unnecessary under the facts revealed in the transcript, there is no indication that it had any prejudicial effect on appellant’s case.

IV

Appellant’s final contention is that the trial court erred in refusing a jury charge on circumstantial evidence, which stated: (R. 182, also 197.)

“The court charges the jury that the burden is upon the State, and it is the duty of the State, to show, beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis, every circumstance necessary to show that the defendant is guilty; and unless the state has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty.” (Emphasis supplied).

Before reaching the accuracy of this omitted charge, we need only point out that the state’s case did not rest upon circumstantial evidence. There was overwhelming direct evidence (five eye witnesses) sufficient to convince a jury of appellant’s guilt. Consequently, no charge on circumstantial evidence was necessary. Jones v. State, 54 Ala.App. 167, 306 So.2d 33 (1974), affirmed, 293 Ala. 762, 306 So.2d 45 (1975); Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975). Any circumstantial evidence presented to the jury merely corroborated the direct evidence.

Moreover, the requested charge in this instance was an incorrect statement of the law. The underscored clause, “all reasonable doubt,” has been rejected in favor of the conventional “a reasonable doubt.” Chavers v. State, Ala., 361 So.2d 1106, 1109 (1978); and cases therein cited.

Thus, the trial court properly instructed the jury on the correct “reasonable doubt” standard in its oral charge and was, therefore, justified in refusing appellant’s requested charge.

There is no error in this record. This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges Concur.


author: ADAMS, Justice.

text:
    Ex parte Buddy Lee CRAFT. (Re: Buddy Lee Craft v. State of Alabama).
    80-684.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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