author: DeCARLO, Judge.

text:
    Thomas Edward SAVAGE v. STATE.
    8 Div. 162.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    John D. Clement, Jr., Joe M. Patterson, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Assault with intent to murder; fifteen years.

The indictment, omitting the formal parts, charges:

“Thomas Edward Savage unlawfully and with malice aforethought, did assault Tommy Houston, with the intent to murder him, against the peace and dignity of the State of Alabama.”

In support of this indictment the State presented the following evidence:

Steve Aldridge, an investigator with the Colbert County Sheriff’s Department, testified that he investigated the shooting of Tommy Houston at the “Rock Club” in Colbert County. Aldridge stated that he arrived at the club about 10:15 P.M., but the victim, Houston, had already been taken to the hospital. The appellant, Thomas Edward Savage, was not at the scene, but he was seen by Aldridge at approximately 2:40 A.M., at the jail. Aldridge said that the appellant appeared to be “upset, shaken and appeared to have been drinking to me.” Aldridge stated that no statement was taken from Savage at that time, but one was taken the following morning, September 17, 1977.

According to Aldridge, the statement by the appellant was voluntary and was given after he had been warned of his Miranda rights. Further, Aldridge said that the statement was read to the appellant and that he signed each of the three pages of the statement.

The contents of the statement revealed that appellant was with Arthur Malone, Queenie Malone and Sara Patrick on the night in question and that the Malones were arguing with the victim. According to the appellant’s statement, when the Mal-ones left, the victim started an argument with the appellant and said to appellant, “Why don’t you carry your gray ass home.” The appellant responded that he “didn’t have to go home.” At that point, Houston got a piece of iron pipe, about two feet long, from a nearby car and started toward appellant with the pipe raised in the air. The appellant warned Houston to stop, but he kept approaching. The appellant then reached into his pocket with his left hand, pulled out a pistol and shot Houston.

The appellant admitted in his statement that he had drunk about “one shot” of vodka before the incident and that he had drunk about three-quarters of a pint of vodka afterwards while he was waiting for the police to arrive.

Aldridge indicated that, after he saw the appellant at the Colbert County Jail, he was taken to the hospital where a blood test was made. The test revealed the presence of .20 percent ethyl alcohol in the appellant’s blood.

During cross-examination Aldridge admitted that a statement had been taken from Sara Patrick on September 20, 1977, at the appellant’s trailer. Following an identification of the statement by Aldridge, the defense attorney offered the statement into evidence, but it was not admitted after an objection by the State was sustained. Statements taken from Darien Armstead and Larry Armstead were also offered by the defense and were refused when objections by the State were sustained.

Robert James Mason was the operator of the “Rock Club” on September 16, 1977. Mason recalled that his attention was drawn to Tommy Houston when he “heard them outside cussing.” Mason testified that he went outside to see what was happening when he heard Queenie Malone, also known as Baby Lou, and Houston outside the club arguing. After Mason tried to convince Houston to leave, Sara Patrick yelled at him from several feet away. According to Mason, Houston was walking away when she yelled, “You want something at me,” and Houston replied, “You kiss my ass.” The witness testified that, at that point, the appellant, who was with Sara Patrick, started toward Houston and said, “Say it again Nigger, say it again.” Mason recalled that the appellant pulled a gun “when he got about half way.” Mason stated that the appellant continued to say, “Say it again Nigger,” then said, “G_. d_it, say it again,” and then fired the shot.

According to Mason, Houston took a piece of stick from a nearby truck after he was threatened by the appellant. Mason stated that Houston held the stick “down beside him.” Mason acknowledged that Houston did not make any motion with the stick. Further, Mason said that he got between the appellant and Houston when the appellant came closer and that the three of them started moving in a circle. According to Mason, the appellant shot Houston as they were moving around. Mason testified that the appellant used his right hand to fire the gun and that the victim “never said a word."

According to Mason, the appellant was walking “pretty fast” to where the victim was standing. Mason stated, “Bubba Savage was after Tommy.” After the shot was fired, the victim fell to the ground.

During cross examination, Mason denied ever having a gun battle with Houston and stated, “I haven’t shot at anyone, — If he did I didn’t know it.” Also, Mason admitted that he had been convicted of murder in the second degree.

Further, Mason denied that the victim, Houston, ever reached to get the stick “when Thomas first pulled the gun out.”

Larry Armstead testified that he was at the “Rock Club” on the night of the shooting. • He was standing outside with his brother, Robert Darien Armstead, when an argument in the parking lot between Houston and Queenie Malone was overheard. According to Armstead, Sara Patrick said to Houston, “something about I have a .38 colt” and Houston replied “Smith and Wesson make a whole lot of them.” At that point, Sara Patrick made another comment and “Tommy cursed her.” Armstead said that he did not know exactly what was said, but, after the exchange of words, the appellant walked quickly to where Houston was standing. At that point, the appellant repeated about three times “say it again nigger, say it again.” Armstead stated that, when the appellant got about half-way to where Houston was standing, the appellant pulled a gun with his right hand. Arm-stead testified that the appellant and Houston were moving around in a circle and Jim Mason tried to part them. Armstead recalled that the appellant pushed Houston before shooting him. Armstead never saw Houston with any kind of stick or instrument.

Darien Armstead, Larry Armstead’s brother, testified that, on the night of the shooting he. also was at the “Rock Club,” he and the Malones had had an argument approximately an hour after his arrival at the club. Houston was talking to them outside the club near the corner of the building. Armstead remembered that, when Houston completed his conversation with Malone, Sara Patrick made a remark, “I got a .38 and Tommy do you want some of it?” Armstead said Houston replied, “Smith and Wesson make a whole lot of them.” According to Armstead, at that point, Patrick made another remark, and Tommy Houston replied, “Kiss my ass.” The appellant approached Tommy Houston and said, “say it again nigger.”

Armstead testified that he did not see a weapon in the hands of the appellant as he approached the victim. However, he did see the victim grab a stick while he and the appellant were moving in a circle. Further, he said the appellant continued saying, “Say it again” but the victim made no reply. According to Armstead, the appellant walked quickly to where the victim was, and “Bubba pushed him.” At that point, the victim “got a stick off the back of the truck.”

Armstead recalled that Houston never made any motion with the stick, but “it was down.” Armstead did not remember seeing the appellant reach into his pocket for the gun. He remembered seeing only the gun when Tommy Houston was shot.

Approximately thirty-five minutes after the shooting, the appellant was seen by Armstead at his house talking to Arm-stead’s father.

During cross-examination, the defense introduced a statement which had been made and signed by Darien Armstead and given to Officer Aldridge. The defense pointed out that Darien Armstead had previously stated to the police that Tommy Houston moved to the back of the truck and got a stick before advancing towards the appellant, twirling the stick. Armstead explained that he had made this statement but he meant only that Houston was moving the stick from side to side as he held it. Also, Armstead explained “[t]hat I’m saying he walked upon him like this — you can walk towards somebody, you don’t have to walk directly to them, you can walk up to somebody sideways.”

Tommy Houston, the victim of the shooting, testified that as a result of the incident he was “paralyzed from the neck down.” Further, he stated that he had never had any serious trouble with the appellant before the argument at the “Rock Club” and that he had known the appellant “almost all of his life.”

Houston testified that Sara Patrick asked him “did I want some of this .38 or something,” and he replied, “I told her Smith and Wesson made a bunch of them.” According to Houston, she continued to taunt him and “I told her to kiss my ass and I turned around and walked off.” According to Houston, he had no weapon at that time, and, within thirty or forty-five seconds after the verbal confrontation with Sara Patrick, the appellant fired the shot. Houston stated that, before the shot was fired, the appellant walked over to Houston and said “say it again nigger, say it again.” Houston stated that he was first pushed by the appellant before he was shot. Houston said he never saw the gun when it was fired and that all he remembered was “I fell to the ground.”

Houston did not remember moving in a circle, but recalled “I know he walked up to me and pushed me and I kind of turned. I guess that’s maybe where they got the circle motion. When he pushed me I turned and I guess that’s where I grabbed the stick.” He testified that the bullet hit him in the left side of the neck and that “it is still in there.”

During cross-examination, Houston recalled that he had testified at the preliminary hearing. He was then asked if he had given testimony that he had never been convicted of any criminal offense. After an objection by the State, the jury was excused from the courtroom, and the defense attorney presented evidence that Tommy Houston had been convicted of assault with a dangerous weapon in violation of § 13-1— 45, Code of Alabama 1975.

Defense counsel argued that the testimony was relevant because it was being offered for impeachment purposes, first to contradict the statement made at the preliminary hearing by Houston that he had never been convicted of any criminal offense and second, for the purpose of showing the propensity of the victim for violence and blood-thirstiness in regard to dangerous weapons. Also, a self-defense plea had been made in this case. The State argued that such impeachment was on an immaterial point and that the offense did not involve moral turpitude. Further, the State assigned as grounds for objection that self-defense had not been established. The court sustained the State’s objection, and the jury was not allowed to hear this testimony.

Tommy Houston did testify on cross-examination that he drank one beer approximately three or four hours before the shooting occurred. He did not remember picking up a stick. He testified that at the preliminary hearing he had stated that he had just “gotten out of the hospital and everything was still fuzzy.” He testified that the testimony he was giving during the trial was true.

Bobby Abies, Chief Deputy of the Colbert County Sheriff’s Department, testified that he arrived at the “Rock Club” at approxi-matley 10:06 P.M. on September 16, 1977. When he arrived, he found a young man lying on the ground in front of the building. Abies later learned that the man was Houston. He stated that he asked the man, “Who did this to you?” Abies said that, because he did not get a response, he held his ear next to the young man’s mouth, then repeated the question. Abies testified that, “he made a sound as he was trying to tell me someone’s name like ‘Bubba!.” Abies stated that he knew the young man had been shot, but did not know the location of the wound.

After gaining certain information at the club, Abies then went to the appellant’s trailer. Abies said that Sara Patrick was the only person at the trailer at that time and that he left after taking a statement from her.

According to Abies, after receiving a radio dispatch, he again went to the appellant’s trailer and arrested Savage at approximately 1:30 A.M. He testified that the appellant was intoxicated at the time of the arrest and that Sara Patrick and Arthur Malone were also at the trailer.

At the end of Abies’ testimony, the State rested its case, and the appellant made several motions, one of which was for a “directed verdict.” The court overruled all the motions and the defense called the appellant to the stand.

Savage testified that in 1969 he had suffered a stroke which affected his right side and head. He stated that he was now totally and permanently disabled and that he was partially paralyzed on his right side. According to the appellant, his right hand and arm were paralyzed and he could not pull the trigger on the pistol with his right hand.

The appellant stated that, on the night of the shooting, he was at the “Rock Club” and before going to the club he had been drinking vodka and beer. The appellant testified that he had walked out of the club with “Baby Lou” Malone, Arthur Malone and Sara Patrick. He said that the Mal-ones began arguing with Tommy Houston, and that Houston came over to him and asked, “Why don’t you carry your gray ass home?” The appellant testified that he responded, “You can’t make me go home, no sir, I’m old enough to, you know to stay out.” At that point, the appellant said that Houston told him, “I will make you go home, and he reached in the car or truck or something and got a stick.” According to the appellant, he told Houston, “Don’t do it — don’t do it, Tommy, don’t do it.” The appellant recalled that Houston continued to approach and that he tried to stop him. The appellant testified that when Houston raised the stick he shot him.

According to the appellant, Houston was approaching him from about twenty feet away. The appellant said that he did not intend to kill Houston and stated that he intended to shoot Houston in the shoulder; however, he was shot in the neck. Further, the appellant stated that he did not remember Jim Mason stepping between the arguing men. Savage contended that, until he shot Houston, he had not moved from his position.

The appellant recalled that he either lost the gun in a pasture or threw it away. Further, he said that he knew the victim’s reputation in the community for violence and blood-thirstiness and that it was bad.

At the end of Houston’s testimony, the defense rested its case and the State called as rebuttal witnesses, Robert James Mason and Tommy Houston.

Mason testified to the appellant’s physical ability to fire a rifle right-handed, even though the appellant had suffered a stroke. Houston testified that he had seen the appellant use a sledge hammer, picks, and shovels when he had worked with him in the summer of 1977.

I

The only issue raised by the appellant is whether the trial court committed reversible error when it refused to allow defense counsel to impeach a prosecuting witness by showing his prior inconsistent statement made at the preliminary hearing. The appellant maintains that, although the introduction of the conviction was not admissible for the purpose of showing propensity for violence or a crime involving moral turpitude, the fact that the preliminary hearing statement was contradictory was a sufficient reason for its admissibility.

Tommy Houston, the victim, had previously been convicted of assault with a dangerous weapon. Assault with a dangerous weapon is not a crime involving moral turpitude. See McElroy’s Alabama Evidence, § 145.01(9).

The Alabama Supreme Court has defined moral turpitude in Meriwether v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780. Convictions of crimes involving moral turpitude may be used to impeach a witness. See § 12-21-162, Code of Alabama 1975.

In Blakey’s Heirs v. Blakey’s Executrix, 33 Ala. 611, the Alabama Supreme Court addressed the issue of whether the testimony of a witness on an immaterial matter could be contradicted for impeachment purposes. The court reiterated the well-settled rule that it is impermissible to impeach a witness on an immaterial matter when it stated:

“It is a well-settled rule, that a witness cannot be cross-examined, as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him. And if a question, which is collateral or irrelevant to the issue is put to a witness, his answer cannot be contradicted by the party who has asked the question but it is conclusive against him.” See Kilpatrick v. State, 51 Ala.App. 352, 285 So.2d 516.

In the instant case, Houston’s testimony as to whether he had been convicted of a crime had no bearing on the circumstances which resulted in the appellant shooting Houston. The fact that the victim had committed a crime separate and apart from the offense with which the appellant was charged had no bearing on that offense. No showing of any connection between the crime for which the appellant was on trial and the crime with which the victim was previously convicted was made.

As the appellant recognizes under the circumstances of this case, testimony of Houston’s conviction as not admissible to show the victim’s propensity for violence, nor was it admissible as a crime involving moral turpitude. The inconsistent statement of the victim concerning a conviction of an unrelated prior crime is not material to the issue of whether the appellant is guilty of assault with intent to murder. The trial court’s refusal to allow the introduction of Houston’s conviction under these facts was proper.

The testimony of Robert Mason, Larry Armstead, and Darien Armstead showed that the appellant was the aggressor. Although we recognize that their theory of the occurrence was in conflict with that of the appellant, it was for the jury to determine the facts from the conflicting testimonies. Waters v. State, 55 Ala.App. 646, 318 So.2d 242; Stuckey v. State, 57 Ala.App. 85, 326 So.2d 150. If Houston’s testimony had been impeached or had been totally disregarded, there was still sufficient evidence for the jury to find the appellant guilty.

Based on the foregoing, it is our judgment that the result in this case would not have been different had the prior conviction of the victim, Tommy Houston, been admitted into evidence. Rule 45, A.R.A.P. Further, it was incumbent upon the appellant not only to show that the trial court committed error, but also to demonstrate that such error was probably injurious. Kennedy v. State, 291 Ala. 62, 277 So.2d 878. Whether there was injurious error by the trial court must be determined from an analysis of the entire record. Kennedy, supra.

II

The elements of the offense of assault with intent to murder are set out in Lawhon v. State, 41 Ala.App. 577, 141 So.2d 205. A conviction for this offense is authorized if the evidence shows an assault with intent to take life under circumstances which would have constituted murder if death had resulted. Hamm v. State, 56 Ala.App. 632, 324 So.2d 345. The intent to take life is an essential element of the offense. Morgan v. State, 33 Ala. 413.

In the present case, the State’s evidence revealed that the appellant precipitated the difficulty and was the real aggressor. Testimony from three eye-witnesses indicated that the victim did not have a weapon at the beginning of the difficulty. Although he later took a stick from a nearby car, he did not exhibit it in a menacing manner. The testimony indicated that the victim held the stick down beside his body. Further, it was also shown that no blows were made by the victim and that the shooting occurred within seconds after the appellant had directed some remarks to the victim. Also, the testimony revealed there was no history of any prior difficulty between the victim and the appellant. From aught that it appears, appellant’s shooting of Houston was an unprovoked attack.

Under these circumstances, and after a careful consideration of the evidence, the proof was sufficient to warrant the jury in finding that the assault was made under such circumstances which if death had ensued, would have been murder.

Regarding the question of whether the elements of self-defense existed, we are of the opinion, based on the testimony of Mason and the Armstead brothers, that the jury was warranted in finding that the appellant had reasonable room and mode for escape.

The evidence in this case presented factual issues for the jury’s determination, and the evidence was sufficient to sustain the verdict; therefore, the trial court committed no error in refusing the “directed verdict.” Baldwin v. State, 342 So.2d 940; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Gilmore v. State, Ala.Cr.App., 339 So.2d 116.

We have read and examined this record and have found no error prejudicial to appellant; therefore, the judgment of conviction by the Colbert Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Charlie Gray BUTLER v. STATE.
    8 Div. 287.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.

      Joe M. Patterson, Jr. and John B. Holt of Holt, McKenzie, Holt & Patterson, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was charged in a three count indictment with burglary, grand larceny, and buying, receiving and concealing stolen property — a cash register valued at $181.00. Youthful offender treatment was denied on the basis of a report prepared by a probation officer. The eighteen year old defendant waived a trial by jury. After hearing the evidence the trial judge found the defendant guilty “of the offense with which he was charged”. Because of a “continued and fairly long record”, the defendant was sentenced to ten years’ imprisonment.

The only question we are asked to decide on appeal is whether a law enforcement officer was justified in stopping the automobile in which the defendant was riding before he had knowledge that a burglary had been committed.

The facts are uncontradicted. At approximately one o’clock on the morning of February 6,1978, Donna Ruth McGee was driving in her automobile. At the Shoals Creek Exxon Station she saw a “small dark shadow run around the building and toward the restrooms”. She drove to the station but did not see anybody or any damage. Approximately three to five hundred feet from the station and on a side road she observed a red automobile sitting in “a dangerous position”. She did not see anyone in this car. Ms. McGee obtained the license tag number and telephoned the Lauderdale County Sheriff’s Office.

Dispatcher Billy Hudson of the Sheriff’s Office received a call from Ms. McGee at 2:19 A.M. In response to that call, he dispatched a car to the Exxon station.

Deputy Sheriff James Brown immediately responded to the radio dispatch and stopped a car matching the description and tag number given by Ms. McGee. He stated that he “felt that (he) had probable cause to stop the car and find out what they were doing out at that time of the night”. He thought that the car looked “suspicious”.

“Well for one thing it fit the description of the car that had been parked on Sky-park Drive. Another, it was going in one direction and turned in another. And while I was following it, they got a little nervous when they realized a patrol was behind it.”
* # * * * *
“They kept looking back and kept fidgeting around, what I call fidgeting; they kept looking back over their shoulders as I was following them.”

Deputy Brown stated that his “sole purpose” in stopping the automobile was the communication he received from the base station. This dispatch included the fact that someone had been seen going between the Exxon station and the concession stand. According to Brown, the red car was within a “reasonable walking distance” from the station.

After stopping the car, Deputy Brown had its three occupants get out. The Deputy shined his flashlight in the window and saw a cash box and a cash register in the back seat and a crowbar on the floorboard. After observing these items, he placed the occupants of the car under arrest. Sometime after he had stopped the car he learned that the station had been broken into.

I

The defendant contends that Deputy Brown had no “probable cause” to stop the automobile because he had no knowledge that the station had been burglarized until after the stop had been made.

The issue raised by the defendant was answered in Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), wherein it was recognized that

“a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.”

“An investigatory' detention may be based upon circumstances falling short of probable cause to arrest.” Bagony v. City of Birmingham, 371 So.2d 80, 81 (Ala.Cr.App.1979).

Here the facts available to Deputy Brown at the moment he stopped the automobile would warrant in a man of reasonable caution the belief that the action taken was appropriate. Terry, 392 U.S. at 22, 88 S.Ct. at 1880. Officer Brown was “able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant(ed) that intrusion”. Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

Under Terry, a stop is permissible “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot”. Terry, 392 U.S. at 30, 88 S.Ct. at 1884. Alabama Code 1975, § 15-5-30 authorizes a law enforcement officer “to stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense” (emphasis added). This “reasonable cause” for a stop and frisk need not be based only on the officer’s personal observation. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Considering the unusual hour of darkness during which the suspicious conduct was observed at the service station, the proximity of the automobile to the station, and the reactions of the occupants of the vehicle in response to the appearance of the Sheriff’s car, Deputy Brown took reasonable action in stopping the vehicle. As in Terry, 392 U.S. at 23, 88 S.Ct. at 1868, it would have been “poor police work” had Deputy Brown failed to investigate these circumstances further. Generally, on the grounds for a permissible “stop” see W. LaFave, 3 Search and Seizure § 9.3 (1978).

II

Here there was no “search” in the Fourth Amendment sense. The observation made by the deputy, even though made with a flashlight, was without the prior physical intrusion present in Kinard v. State, 335 So.2d 927 (Ala.1976), and Rudolph v. State, 371 So.2d 962 (Ala.Cr.App.), cert. denied, Ex parte State ex rel. Atty. Gen., 371 So.2d 965 (Ala.1979).

“When the vehicle was parked or was lawfully stopped on the public way, the courts have consistently held that the officer’s conduct in illuminating the interior of the automobile (by the use of a flashlight or similar artificial illumination) does not constitute a search.” (Citations omitted) LaFave, 2 Search and Seizure 249.

Alabama case law supports this proposition. Powers v. State, 49 Ala.App. 690, 692, 275 So.2d 369 (1973); Parks v. State, 46 Ala.App. 722, 723, 248 So.2d 761 (1971); Sheridan v. State, 43 Ala.App. 239, 241, 187 So.2d 294 (1966).

We have searched the record for error prejudicial to the defendant. Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Johnny Ray COX v. STATE.
    8 Div. 243.
    Court of Criminal Appeals of Alabamá.
    Jan. 22, 1980.
    Earl E. Cloud, Jr., of Cloud & Cloud, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., C. Lawson Little, M. Clayton Humphries, Jr., Asst. Attys. Gen., for appellee.
   ON REHEARING

BOOKOUT, Judge.

On October 16, 1979, this court affirmed without opinion the trial court’s judgment denying the appellant’s petition for writ of error coram nobis. On October 30,1979, we restored the cause to the docket ex mero motu to consider an application for rehearing.

The State moved to strike the appellant’s application for rehearing on the ground that the appellant’s brief accompanying and in support of the application was in substance identical to the briéf filed on the original appeal in violation of Rule 40, ARAP. The State contends that Rule 40 requires a new brief to be filed on rehearing pointing out clearly and intelligently any error in this court’s opinion. The State’s position is correct in cases where this court issues a written opinion. Thomas v. State, Ala.Cr.App., 363 So.2d 1020 (1978); DeGaaf v. State, 34 Ala.App. 137, 37 So.2d 130 (1948). However, a different rule must apply where no written opinion is issued.

In the instant case the appellant’s application for rehearing specifically pointed out the fact that this court issued no written opinion and then stated:

“2. Appellant, in order to perfect his appeal pursuant to the Alabama Rules of Procedure, reassigns all issues raised in the brief and oral argument for this Court’s consideration. . . . ”

In the instant case the appellant has done all that he can do in attempting to apprise this court of the error relied upon. Since all grounds assigned as error on original appeal were considered and rejected by this court, the appellant without being clairvoyant could only assert that we were in error in rejecting each of those grounds and request that we reconsider each on rehearing.

Where we find the rulings of a lower court to be without error, where the evidence supports the finding, verdict or judgment, and an opinion would have no precedential value, this court will affirm the judgment of the trial court without a formal written opinion. Such was the case here. We have reconsidered those points raised by the appellant in his application for rehearing and again find no error in the record.

The State’s motion to strike the application for hearing is therefore not well taken in the instant case and is- hereby denied.

APPLICATION OVERRULED.

All the Judges concur.


author: TYSON, Judge.

text:
    Robert CRAIG v. STATE.
    2 Div. 257.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    William T. Coplin, Jr., Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

On Rehearing

Robert Craig was indicted for the rape of Lucille Neal. The jury found him “guilty as charged,” and the trial court set sentence at twenty-two years imprisonment. The appellant filed a motion for new trial, challenging the weight and sufficiency of the evidence, the alleged impeachment of the appellant concerning some misdemeanor charges, and the alleged failure of the trial court to turn over grand jury testimony, police reports, and statements of witnesses prior to trial. This motion was denied.

An appeal was perfected to this Court with a thorough brief being filed by appellant’s counsel. This case was unanimously affirmed on November 20, 1979, 2 Div. 257, without opinion.

Because the appellant has filed a pro se application for rehearing, indicating his desire to further prosecute this appeal, and has asked for an opinion pursuant to the provisions of Rule 39(k), Alabama Rules of Appellate Procedure, this opinion follows.

This Court frequently, both on original appeals and on post conviction review, affirms cases without formal opinions where such, in the opinion of the Court, presents nothing new or novel, or unusual legal questions. Impson v. State, Ala.Cr.App., 339 So.2d 1098 (1976); Thomas v. State, Ala.Cr.App., 373 So.2d 1264; and Suttle v. State, Ala.Cr.App., 377 So.2d 1121, 1979, cert. denied, Alabama Supreme Court, December 21, 1979.

Lucille Neal testified she lived two miles south of Eutaw, Alabama, on Highway 43 and was married to Henry C. Neal, a truck driver for Eagle Motor Line in Birmingham. She stated that she worked as a maid for five different families in Eutaw. She stated that she had met the appellant sometime during the fall of 1978 at Reverend Allen’s house, and that once or twice he had come by her house and sat down and attempted to talk as though he was a preacher. Lucille stated she had never been to the individual’s church.

Lucille stated that in the late afternoon of February 15, 1979, the appellant came to her house and that she was home cooking supper alone. The appellant knocked on the door, was admitted by her, and, after talking for a few minutes, he moved into the kitchen where she was cooking and placed a knife at her throat. Craig demanded that she take her pants off and go into the bedroom at knife point. She stated that she was frightened and moved with him to the bedroom. The appellant stated to her, “M_f_, if you scream, I’ll kill you.” He made her remove her clothes, got on the bed with her and had intercourse. He then had intercourse with her rectum and told her if she screamed again he would kill her, and then had oral intercourse and told her again, “M_f_, if you tell anybody I am going to come after you.” About that time a horn blew in the yard, and a sixteen year old boy, named Jerome, who performed chores for Lucille, knocked on the door. Lucille stated she got up, put on her robe, and went to the door. She said she tried to whisper to Jerome that a man was there, but she was scared. She said, “I had to put on my clothes because he stripped me naked.” She stated that the defendant, Craig, then came out and spoke to Jerome and stated he was leaving, and after he left Lucille had Jerome take her to the home of Reverend Allen, and there she telephoned her older sister and brother-in-law. She stated that her brother-in-law took her to Dr. Bethany, who examined her and let her go home. She stated this occurred in Greene County on the late afternoon of February 15, 1979.

On cross-examination Lucille stated that she had gotten off work from Mrs. W. P. Mayo’s home, went by the grocery, and liquor store, then on home. She stated that her husband was away driving a truck. She stated that Reverend Allen and her sister-took her to City Hall after the incident.

Jerome Hunter, age sixteen, lived in McKinley Branch Heights section in Eutaw on February 15, 1979. He stated he went by the home of Lucille Neal in the late afternoon of February 15, arriving there about five minutes to six o’clock. Jerome stated he blew the horn first, and then went and knocked on the door. In a few minutes he was admitted by Lucille, who was wearing a bathrobe and appeared to be very upset. He said he saw Craig peeking around the door, that he thought he was dressed, but could only see the top of his body. He said that Craig suddenly came out of the bedroom and said, “This is what we are supposed to do, come by and check up on people,” and then said, “Goodbye,” and left. Lucille then told him she had been raped by Craig. Jerome took her to Reverend Allen’s house, then to the police station. He said that he did not go with her to the doctor’s office.

Dr. Joe Bethany, Jr., testified he saw Lucille Neal in the emergency room of Greene County Hospital about 9:00 p. m. on February 15, 1979. He stated that she told him she had been sexually assaulted between 5:30 and 6:00 p. m. by being forced to have intercourse “vaginally, rectally, and orally.” Dr. Bethany stated he examined both the vagina and rectum and noted that they were swollen and bruised. He stated he removed some brownish material with a swab, but did not determine the presence of sperm. He stated that Lucille Neal did not appear to be under the influence of liquor or drugs at the time of the examination.

On cross-examination, the doctor indicated that the material he removed was fecal material, which could be present as long as twenty-four hours, but in this case appeared “to be quite fresh,” and would have been there less than six hours.

Cecil Rhodes indicated he was Police Chief in Eutaw and interviewed Robert Craig on the morning of February 16,1979, at the Eutaw City Jail. He stated that he first gave the appellant a Miranda warning, which was admitted as State’s Exhibit One, and which had been signed by the appellant. After talking with the appellant, he insisted he had only been to Lucille’s house in his capacity as a pastor, and denied that he had assaulted her. Chief Rhodes then identified State’s Exhibit Two, the knife, which was taken from the appellant on the night of his arrest on February 15, 1979, by Eutaw policeman, Buddy Gay.

Buddy Gay stated that, accompanied by Officer Stripling and Deputy Hicks, he arrested Robert Craig on the night of February 15, 1979, at McKinley Branch Heights and removed a knife from his pocket, which he identified as State’s Exhibit Two.

Appellant’s counsel made an oral motion to exclude the State’s evidence, which was denied.

Robert Craig testified he was an insurance salesman for Protective Industrial Insurance Company during 1978, and a part-time minister. He stated that he went to Lucille Neal’s house about 5:30 on the afternoon of February 15, 1979, and that he had been there several times with his fiancee. He stated that he knocked on the door and she asked him to come in as she wanted to talk with him. He stated that he was seated in the room and that she remained fully dressed. He said he heard a horn blow in the yard, and when he looked Lucille had come out of the bedroom dressed in a robe and admitted Jerome Hunter, who was knocking on the door. Craig denied having had intercourse with Lucille Neal and stated that he spoke to Jerome and then left and went by to see the Reverend David France and his wife. He then went over to see his girl friend, Marjorie Hutton. Craig stated that, about twelve years prior to 1979, he was convicted of assault with intent to rob when he was fifteen or sixteen years old, and that he served several years at Draper. He stated he was convicted under the name of Robert Hall, but after getting out he took the name of Robert Craig, and for the past ten years had been a part-time preacher. Craig gave his date of birth as April 21,1945, then changed this on cross-examination to April 21, 1949. Also, on cross-examination, Craig stated at first to Ed Billingsley, the district attorney’s investigator, that he did not have a prior record, but admitted that he did have the assault charge some years before. Also, on cross-examination, the appellant admitted that he had three or four disorderly conduct charges in Montgomery. It should here be noted that there was no objection to this interrogation on cross-examination (R. p. 54).

Craig appeared somewhat confused about his place of birth, but then insisted that he had been born in Birmingham and used the name of Robert Hall until his release from Draper Correctional Center, and had used the name of Robert Craig from 1969. Craig stated that he had been to business school and had gotten a call to be a minister and had been one since 1969, and that he did not rape Mrs. Neal.

Dianna France testified that the appellant, Robert Craig, came by her home shortly after 6:00 p. m., on February 15, 1979, and asked for her husband. She said she did not remember how long he stayed at her home.

Reverend David France testified that he saw Robert Craig at the home of Marjorie and Marie Hutton on February 15, 1979, sometime between 6:00 and 6:30 in the evening. He stated that he found out that Craig had been by his house, that Craig owed him some money and he found him at the home of his girl friend, Marjorie Hutton.

Marjorie Hutton testified that she was Robert Craig’s girl friend and that he had come by her house around 6:20 or 6:30 on the night of February 15, 1979. She stated that Craig remained there until about 11:30. She stated that they had been going together for several months. She stated that she had sex with Craig six or seven times that night.

Diane Burroughs stated she lived in McKinley Branch Heights in Eutaw and had known the appellant since August, 1978. She stated that she had been engaged to him for about four months, and that after she heard he was arrested she had gone to the Eutaw City Jail. She said that she got in a cell alone with him on February 16, 1979, and “unzipped his pants and felt him down, then asked him if it was sore,” and Craig replied, “No.”

The trial court gave an extensive oral charge, and the only exception was by the appellant’s counsel, Mr. Coplin, to the court, telling the jury that “If you find that he lied about a material fact, you may disregard any or all of such testimony.”

Appellant said this was a violation of the Fourteenth and Fifteenth Amendments’ due process clauses.

I

Appellant asserts as error the alleged failure to produce the grand jury’s testimony, police reports, and statements of witnesses in response to his motion to produce.

Appellant’s oral statement was made known to his attorney before trial, but the trial court denied his request for grand jury testimony and police reports. This was proper. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); State ex rel. Baxley v. Archer, Ala.Cr.App., 335 So.2d 240 (1976).

II

Appellant next asserts as error the cross-examination of appellant concerning certain disorderly conduct charges in Montgomery after 1969.

There was no objection to this cross-examination (R. p. 54), and such was with respect to the appellant’s denial of any wrong doing after his release from Draper on his assault with intent to rob charge. Again, no error is presented. § 12-21— 162(b), Code of Alabama, 1975; White v. State, Ala.Cr.App., 347 So.2d 566 (1977); Daniels v. State, Ala.Cr.App., 375 So.2d 523 (1979); Gamble, McElroy’s Alabama Evidence, § 145.01(8) (3rd Ed. 1977).

The application for rehearing is overruled, and this cause is

AFFIRMED.

All the Judges concur.


text:
    Joseph BALDWIN, alias v. STATE.
    3 Div. 3.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.

      Frank L. Thiemonge, III, Marcel E. Carroll, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., C. Lawson Little, Aást. Atty. Gen., for appellee.
   DeCARLO, Judge.

Robbery; fifty-five years.

The appellant was indicted by the grand jury of Montgomery County for robbery and charged with feloniously .taking “the property of Phillip Mephvin, from his person, and against his will. . . .’’At arraignment, with counsel present, appellant pleaded not guilty and not guilty by reason of insanity. Subsequently, he was tried by a jury and found guilty. After a motion for a new trial was denied, appellant gave notice of appeal.

Evidence presented by the State showed that on the night of August 9, 1978, Phillip Mephvin was working at the Site Service Station in Montgomery, Alabama. On that occasion he was confronted on the outside of the service station by a lone, black male with a sawed-off shotgun. Mephvin stated:

“When the man — When I met the man, like I was going to meet him — see I was outside of the building. And this little walkway down the side, and he came around the corner, and I turned my head, and I saw him walking up, and I met him like he was any other customer'. I said, ‘yes, can I help you?’ and he raised the sixteen-gauge shotgun and said, ‘Get inside. This is a robbery.’ After he pulled the stocking over his head.”

After watching the man pull the stocking over his face, Mephvin was led into the storage room and made to lie face-down on the floor.

During the trial, Mephvin identified Eddie Scott as the man with the shotgun. The witness stated that a second man, unseen by Mephvin, joined the man with the shotgun. Further, Mephvin testified that, during the robbery, he became aware of two weapons. The shotgun was placed on top of his head, and a pistol was placed at the back of his head.

According to Mephvin, he was “covered” by the man with the pistol, who said, while continuing to point the pistol at the witness’ head, “If you don’t tell me exactly what I want, I’m going to blow you away.” Meph-vin said that he was asked for the combination of the floor safe by one of the men, and he replied that he did not know the combination of the safe. Mephvin stated that, at that time, he was struck in the head by what he thought was the shotgun. He testified that, afterwards, he was hit at least ten times.with the handle of a push-broom and his hands and feet were bound with a cord.

Mephvin recalled, “I heard footsteps going out the door. They said that the. police was out there. We’re busted. Let’s get out of here. We might as well give up. And then they started running round the storeroom. That’s when they hid the weapons and the pistol and the money.” Mephvin said that in about a “minute or a minute and a half” he untied himself. At that point, he saw a man with a pistol on the outside of the building.

During cross-examination, Mephvin acknowledged that the man wearing the stocking was the man carrying the shotgun. The person who hit Mephvin with the broom handle was not seen by him. Further, he stated that he did not see the appellant inside of the store on the night of the robbery, but he knew that he was there. According to Mephvin, cash in the amount of $150.00 was taken from the cash register. The next morning the cash was found in a paper sack in the storage room. He stated that the money was kept in the cash drawer and that, after the men left, the money was not in the register.

Mephvin testified, “I was threatened that if I didn’t tell them the combination of the safe, that he would blow me away.”

Eddie Scott testified that he had been charged with the robbery of the Site Oil Company on August 9,1978 and that he had subsequently pleaded guilty to that charge. He stated that, on the night in question, he and the appellant were at the Site Oil Company. According to Scott, he was armed with a sawed-off shotgun and the appellant was armed with a pistol. During the trial, the witness identified the appellant and stated that he was also known as “Butch Scott.”

On the night in question, Eddie Scott and the appellant discussed the robbery. After riding by the station a couple of times, they went inside. The witness testified that they were armed at the time. At the trial, he identified the shotgun which he carried and the pistol which the appellant carried. Scott stated that they told the attendant “to come on, go inside the station.” Scott said the attendant cooperated and they took him to the storage room in the back of the station and made him lie down on the floor. Scott testified that, while the attendant was lying on the floor, Baldwin pointed the gun at the attendant and “kept asking him the combination to the safe.” According to Scott:

“At one time, you know, I told him, said let’s go. He told me no. That he he was going to tell him the combination to the safe. Then a person came in the station. I went out front. And he asked he whether he was going the right direction to Tuscaloosa, I think it was. So, I told him, yes. So he left. I went back and I told him, I said, ‘let’s go,’ you know. He told me, says, he’s going to tell me the combination to the safe. So, then, between that time he struck the guy in the head with a pistol. And, so another person came in and he said he had been by there earlier to get some fuel. He said the guy was busy at the time so he left and he had come back to pay him for it. And he said — He asked me where was he. I told him he was gone to get some food, you know, and would be back shortly. So, he wrote his name on a piece of paper and gave it to me. And he left. So, I told him, again, let’s go.”

Baldwin then broke a broomstick and began to beat the attendant. Scott testified that he had taken the money- from the register. Scott stated that, when he and Baldwin were about to leave, they noticed the police. Both men tried to. leave through the rear entrance, but the door was nailed. At that point, Scott said, “We may as well go on out now.” Scott recalled that he threw the shotgun in an old commode, but he could not recall where the pistol was thrown.

During cross-examination, Scott admitted that he was driving the car, but he denied that the robbery was entirely his idea. Also, Scott denied hitting Mephvin with the shotgun or with a broomstick. Scott stated that Baldwin hit the attendant with the pistol and the broomstick but the witness could not say exactly how many times the attendant was hit.

Thomas G. Toddy testified that he was employed as an evidence technician with the Montgomery Police Department on August 9, 1978. He identified, from photographs, a pistol and a shotgun as the guns he found at the scene of the crime.

Montgomery Police Officer Gary Robertson was on duty with his partner on August 9, 1978. He recalled arresting the appellant and Eddie Scott at the Site Oil Company as they were leaving the station. After the two men were arrested, Robertson saw the attendant. The witness described the attendant’s face as being covered with blood. Robertson- stated that, obviously, the man had been beaten.

During cross-examination, Robertson stated that he and his partner noticed there was no attendant at the station when they drove by it. He said that they turned around, pulled into the station, and saw a black male crawling on his hands and knees inside the station. Robertson later learned that the individual was the appellant.

Montgomery Police Officer Art Long testified that he was with Officer Robertson when the appellant and Eddie Scott were apprehended. Long’s testimony was substantially the same as that of Robertson’s.

At the end of Long’s testimony, the State rested its case, and the appellant moved to exclude the State’s evidence. The motion was denied by the court. The appellant did not take the stand, but he recalled Phillip Mephvin. Mephvin testified that he was hit on his back with a broomstick at least ten times.

I

Appellant’s first contention is that his motion to exclude should have been granted because of an alleged fatal variance between the indictment charging a “felonious taking of the property of Phillip Mephvin from his person,” and proof presented by the State to show that the money belonged to Site Oil Company.

The law is well-settled that “in an indictment for robbery, ownership of the stolen property is properly laid in the party in possession, either as owner, or bailee, or agent.” Mays v. State, Ala.Cr.App., 335 So.2d 246. See also Bray v. State, 47 Ala. App. 308, 253 So.2d 531; Howell v. State, 26 Ala.App. 612, 164 So. 764. Additionally, “There is no material variance between an indictment which charges that the property taken was the personal property of a named individual and proof showing that the property belonged to another or to a corporation.” Hobbie v. State, Ala.Cr.App., 365 So.2d 685.

Under the facts in the present case, no fatal variance between the indictment and the proof was shown. The trial court properly denied appellant’s motion to exclude on this ground.

II

The appellant insists that the trial court erred in denying his motion for a mistrial. He argues that the motion should have been granted because, in closing argument, the district attorney said, “From the defense argument, I wonder where Joseph Baldwin was that day?” The appellant asserts that this statement was a comment on his failure to testify at the trial.

An examination of the record indicates that “closing statements were given by respective counsel without objection” and that the jury had already retired to commence its deliberations before the appellant moved for a mistrial. At that time, it was the appellant’s contention that the district attorney’s statement in closing argument was a comment on the appellant’s failure to take the stand.

We notice from, the record, a colloquy between appellant’s counsel and the trial judge which indicates that some comment with which defense counsel disagreed must have occurred during closing argument. There the court said:

“I made the offer then and I make it again to you now to explain to the jury in detail that they can’t consider anything at all about the defendant not testifying. If you want me to, I will.”

At that time, the appellant’s attorney said, “But for the implication that would place in the minds of the jury I would accept that offer.” He also stated, “I believe that is what is called between a rock and a hard place, no sir Your Honor, we will have to turn down that offer.” We examined the record and were unable to find the comment attributed to the district attorney.

It is well-settled that an objection to a portion of solicitor’s closing argument made after the conclusion of the trial and after the judge’s charge to the jury, but prior to the jury retiring for their deliberation, comes too late. Smith v. State, 248 Ala. 363, 27 So.2d 495. In the present case, the facts clearly show that the jury had already retired when counsel objected to the district attorney’s remark. Under these circumstances, the objection came too late. Long v. State, 2 Ala.App. 96, 57 So. 62.

Ill

The testimony in this case showed that Scott, accompanied by the appellant, feloniously took one-hundred and fifty dollars from the cash register of the Site Service Station while Mr. Mephvin was the only attendant on duty. The attendant, as the facts indicate, was forced at gunpoint into the station and was later beaten about his head and back. He was bound from head to foot, and numerous inquiries were made concerning the combination of the safe.

Two officers apprehended the appellant coming out the door of the station immediately after the robbery. They also found the attendant who was badly beaten. Scott testified that, with him at the time of the robbery, was the appellant and that he was a willing participant.

Under these facts, we believe that the necessary robbery elements were shown and that the case was properly submitted to the jury for its consideration. Williams v. State, 48 Ala.App. 737, 267 So.2d 526; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382. The evidence submitted by the State was sufficient to present a jury question as to whether the appellant committed the robbery. Therefore, the trial court was not in error when it overruled the appellant’s motion to exclude the State’s evidence and the motion for a new trial. Young v. State, 283 Ala. 676, 220 So.2d 843; Fields v. State, Ala.Cr.App., 333 So.2d 861.

We have read and examined this record and have found no error prejudicial to appellant; therefore, the judgment of the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    James R. TURNER v. STATE.
    3 Div. 130.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    Rehearing Denied Feb. 26, 1980.
    Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James R. Turner was indicted by the grand jury for the unlawful possession of methylenedioxyamphetamine (MDA), a controlled substance. Trial was held on a plea of not guilty and the jury found the appellant “guilty as charged.” The trial court sentenced appellant to ten years imprisonment in the penitentiary. This appeal followed.

On January 12, 1979, officers of the Montgomery Police Department executed a search warrant at a house on Michigan Avenue in Montgomery. Five males were in the house at that time, including the appellant. A number of drugs and drug-related paraphernalia were discovered on the premises during the search. The appellant and the four others were thereupon placed under arrest.

I

Appellant argues that the trial court committed reversible error in refusing to grant his motion to exclude on the grounds that there was no showing that the informer was credible and that the affidavit on which the search warrant was issued was incorrect.

A careful review of the record, however, reveals that neither the search warrant nor its supporting affidavit was made a part of the record in this case.

It is well settled in this state that an affidavit and search warrant not contained in the record cannot be considered on appeal. Conner v. State, 6 Div. 495 (Ms. November 20, 1979), and authorities therein cited; Goodman v. State, Ala.Cr.App., 356 So.2d 691, cert. denied, 356 So.2d 698 (1978).

II

Appellant next contends that the trial court erred in refusing to allow defense counsel to ask John Knukle, a prosecution witness, whether he had ever sold certain drugs.

The law in this state is clear that a witness may not be impeached by “specific acts of misconduct . . . which have no relevancy except as tending to show that he is a person of bad character as a whole or with respect to truth and veracity.” Gamble, McElroy’s Alabama Evidence, § 140.01(10) (3d Ed. 1977); Stephens v. State, 250 Ala. 123, 33 So.2d 245 (1947); Davenport v. State, 15 Ala.App. 325, 73 So. 209 (1916).

Ill

Appellant’s final assertion of error concerns the following requested charge which was refused by the trial court:

“The Court charges the jury that in order to convict an accused of possession of a prohibited drug or substance, the prosecution must establish that he was in actual or constructive possession of the narcotics, coupled with knowledge of the presence of the drug.”

The following is taken from the trial court’s oral charge to the jury (R. pp. 343-344):

“The law as far as possession of illegal drugs is as follows: Any person who possesses any controlled substance is guilty of felony. I charge you that Methylene-dioxyamphetamine is a controlled substance. The word possession means either actual possession or constructive possession or possession by physical dominion or control. The possession prohibited includes any possession by physical dominion ever how brief duration. Constructive possession and actual possession, there are three basic elements involved; actual or potential control, intention to exercise some dominion and some external manifestation of the intent and control. The State must also prove knowledge of the presence of the prohibited substance beyond a reasonable doubt; that is, the State must have also proved that the defendant knew that the controlled substance was there. Such guilty knowledge may be established by circumstantial evidence. It is not necessary to prove ownership in order to prove constructive or actual possession. An offense of possession either constructive or actual of illegal drugs is susceptible to a joint commission; that means more than one person might be in possession. Mere presence in a place where some contraband is found is not equivalent alone for constructive possession. Mere presence at the scene of a crime or failure to raise up a cry about the existence of a crime does not make a person an accessory to a crime. Constructive possession may be determined by weighing those facts which tend to support an accused’s necessary control over the substance against those facts which demonstrate a lack of dominion and control.”

Appellant’s requested charge was clearly substantially and fairly covered by the trial court’s oral charge. Therefore, the trial court did not err in refusing same. § 12-16-13, Code of Alabama 1975; Mains v. State, Ala.Cr.App., 375 So.2d 1299 (1979), and authorities therein cited.

There being no error shown by the record on this appeal, this cause is due to be and is hereby

AFFIRMED.

All the Judges concur.


text:
    Glenn Davis WOOD v. CITY OF BIRMINGHAM.
    6 Div. 75.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.

      J. William Thomason, Bessemer, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
   BOOKOUT, Judge.

This appeal is from an order of the Circuit Court of Jefferson County dismissing an appeal to that court from the Municipal Court of Birmingham.

The appellant was charged in the Municipal Court with driving while intoxicated and with “driving while license suspended or revoked.” On January 15, 1979, after a plea bargaining session, the appellant pled guilty to the reduced charge of reckless driving and pled guilty to the second charge as stated. On the first charge he was sentenced to fifteen days at hard labor, which sentence was suspended, and fined $200 plus costs conditioned upon the appellant’s completion of a defensive driving school and an alcohol countermeasure course as provided for in § 12-1^13(d)(9), Code of Ala.1975.

On the second charge the appellant was given a fifteen day suspended sentence and fined $100 plus costs. The record does not show the second case to have been continued with judgment conditioned upon completion of the driving and alcohol courses.

Judgment was entered in both cases on January 15, 1979; however, the court entered orders allowing the appellant to pay the fines imposed not later than February 20, 1979. Such a procedure is permissible pursuant to § 12-14-10 and -11, Code of Ala.1975.

After judgment was entered in both cases, the appellant was in the process of receiving further instructions from the bailiff when the bailiff recognized him as having prior convictions. The bailiff informed the prosecutor who immediately announced that the plea bargaining agreement was withdrawn. After some discussion between counsel and the court, the first sentence was set aside. The appellant changed his pleas to “not guilty” and was subsequently found guilty of driving while intoxicated and driving while license suspended. Judgment was again entered on January 15, 1979, in both cases, and the appellant was likewise given an extension of time until February 20, 1979, to pay the fines and costs.

The question of whether the municipal judge could lawfully set aside the reckless driving judgment and sentence once entered and resentence on the driving while intoxicated charge was not presented as an issue in either court below nor on this appeal. See: Brown v. State, Ala.Cr.App., 376 So.2d 1382 [1979].

According to a stipulation of facts in the record, thé appellant was advised by his attorney’s secretary that he had until February 20, 1979, to file his appeal bond. However, he submitted appeal bonds on February 12 which were refused as being too late. Counsel for the appellant was later able to persuade the municipal judge on February 27 to resentence the appellant “to allow for appeal.”

An appeal was taken to the circuit court where the City’s motions to dismiss were granted with the trial court stating:

“ . . I do think a resentencing would be valid, but I don’t think you can resentence or anything without the defendant being there, so therefore it would revert back to the original sentence. Motion to dismiss is granted.”

The appellant argues that his presence was not required at the resentencing on February 27 and that the order of that date was valid and the time for appeal ran from that date. The City argues that judgment in both cases was entered on January 15, 1979, and the time for appeal expired fourteen days thereafter (January 29, 1979).

We conclude that the circuit court was correct in dismissing the appeal. It is unnecessary to treat the constitutional issue of whether the appellant’s appearance was necessary for a valid resentencing order where he raises no issue concerning his presence. The trial court’s ruling was correct in its result whether or not a proper ground was stated as the basis for that ruling.

We hold that a court cannot extend, expand, or otherwise modify the time for perfecting an appeal. A court cannot breathe life into a dead appeal. Under Alabama law the right to appeal is a creature of statute, and such statutes are strictly construed. Hairston v. Alabama, 465 F.2d 675 (5th Cir. 1972). There is no inherent or inalienable right of appeal, but such right is purely statutory. State v. Bibby, 47 Ala.App. 240, 252 So.2d 662 (1971).

In the instant case it is apparent that the entry of judgment was January 15, •1979. The granting of an extension of time for payment of the fines did not affect the finality of the judgment nor the running of the time for filing an appeal. Pursuant to § 12-14-70(c), Code of Ala.1975, a defendant has only “fourteen days from entry of judgment” to perfect his appeal. The municipal judge was without statutory authority to “resentence” the appellant in any manner whereby the time for filing an appeal would be extended beyond January 29, 1979.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Larry EDMONDS v. STATE.
    6 Div. 127.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.

      Thomas H. Jackson, Thomas E. Kincaid, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of rape and sentenced to imprisonment for twenty-two years.

At the threshold (in limine) of the trial, defendant presented a motion to suppress any evidence of defendant’s prior conviction of burglary and grand larceny. It was urged then, and it is urged now, that unless the court suppressed such evidence, defense of the case would be imperiled by reason of the likelihood of more injury to defendant by reason of such evidence if defendant took the stand than would be the benefit to defendant by his taking the stand as a witness. The court overruled the motion, and defendant did not take the stand as a witness. No doubt defendant was correct as to his reason for the motion. He was not correct in his contention then, or now, that the motion should have been granted. There was no effort by the prosecution to present evidence of defendant’s previous conviction of a crime involving moral turpitude. It could not have done so under the circumstances in this case, unless and until defendant had taken the stand as a witness. Notwithstanding the tactical advantage defendant may have obtained by reason of any granting of the motion, neither he nor the court had a right to forestall the State’s right to impeach defendant as a witness, if he took the stand, by proof of his previous conviction of a crime involving moral turpitude, established by Code of Alabama 1975, § 12-21-162(b). There can be no doubt that both burglary and grand larceny involve moral turpitude. Matthews v. State, 51 Ala.App. 417, 286 So.2d 91 (1973).

Another insistence of appellant is worthy of serious concern. He contends that the evidence is not sufficient to present an issue for the jury to decide as to whether the essential element of penetration occurred.

The alleged victim, who had “never been married” and was the mother of three children, testified that about 11:30 on the night of March 3,1978, while she was in her home alone, her children being with her mother, defendant came to her door and asked to use the telephone. According to her further testimony, after using the telephone, defendant asked to use the bathroom; after coming out of the bathroom, he threw his scarf around the victim’s neck, that she started “fighting and struggling and hollering.” He choked her until she “passed out.” She said that when she “was coming to, he was getting up off of me pulling his pants up,” and that she “ran out the door” and “started screaming.” Defendant immediately left the premises. She proceeded to obtain help from her neighbors, who took her to the hospital where she was given a “rape test.” Officers were called and they investigated the incident. She said her neck was “all scarred up,” that her “eyes— the blood vessels in my eyes was busted.” She said that he threw her on the floor, that when she woke up her clothes were down toward her feet, that her pants had been pulled down and were torn from “where it had to snap and zipper. Just ripped on down.” Appellant does not question the sufficiency of the evidence as to force and absence of consent. On the particular issue presented, we quote additional portions of the record. On direct examination was the following:

“Q. And did you see any private parts of his body when he was raising up from you?
“A. Yes.
“Q. Now, did his body actually penetrate your body?
“A. Yes.”

On redirect examination, she testified:

“Q. And you testify that you passed out. Again, this is important. Did his body actually penetrate your body?
“A. Yes.”

It is unfortunate, we think, that there was not more specificity in the questions asked the witness on the subject of penetration, which is an essential element of the crime of rape. It is to be recognized, however, that there is considerable tenuity involved in expressing the particular part of the body of the man that must penetrate and that of the woman that must be penetrated in order to consummate the crime. If it was not such part of either, the crime was not committed. Notwithstanding our dissatisfaction with the lack of definiteness in the language used, it would not seem reasonable to conclude that by the use of the word “body” any part of the body of the defendant or the victim was meant, or understood, other than the essential respective parts, when all of the circumstances presented by the evidence and indicated above are shown, as to which there is a natural reluctance to repeat or to express in great detail.

We find no case directly in point, and none is cited, that would be applicable to the unique language used as to “penetration,” but we refer to the cases that hold that penetration “need not be proved in any particular form of words, and circumstantial evidence will suffice.” Beckley v. State, Ala.Cr.App., 353 So.2d 542, 544 (1977), with authorities cited. It seems to follow necessarily that also the nature of the penetration that is essential “need not be proved in any particular form of words.”

We find no error in the record prejudicial to defendant. 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.


text:
    Frank WRIGHT v. STATE.
    6 Div. 970.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.

      Frederick H. Heffler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of burglary under the first count of an indictment charging him with breaking into and entering “the shop, store or warehouse of Sears Roebuck and Company, a corporation, in which goods, merchandise or purses, things of value, were kept for use, sale or deposit.” He was charged in the second count of the indictment with grand larceny of several items of personal property of Sears Roebuck and Company. There was no express finding by the jury as to the second count. The court fixed defendant’s punishment at eight years imprisonment and sentenced him accordingly.

A major insistence on appeal is to the effect that the evidence was not sufficient to support the verdict.

About 1:00 A.M. on Sunday, May 6, 1978, the large store of Sears Roebuck & Company, occupying a large part of two blocks in downtown Birmingham, which store had been locked, secured, and the burglar alarm thereof set at the close of business the same night, was broken into. The breaking energized the burglar alarm, to which police officers responded within no more than fifteen or twenty minutes. A large plate-glass window had been broken into, which afforded the only entrance into the building by an outsider. Upon arrival of the officers, one or more of them saw defendant inside the store walking along an aisle with a plastic bag in his hand and picking up items of merchandise. When other officers arrived with a canine unit, they entered the store. One of them testified that he saw the foot of the defendant protruding from under a rack of clothing, asked the defendant to come out, and when he failed to do so he had the dog trainer direct the dog to its duty. The dog pulled the defendant out, and he was then taken into custody. The shopping bag contained a large quantity of miscellaneous items of merchandise kept in the store.

The only witness for defendant was one Bradford Love, who testified that he had pleaded guilty to the burglary and had received a sentence for a term of two years, but that he was not guilty, that he was not in the Sears Store at the time in question, that he did not see defendant in the store on the night of May 6-7, 1978, and had not seen him at any time on either of those days.

Appellant argues that even though defendant was found in the store in the process of sacking merchandise therein, the circumstances do not show that he was the one who forced an entry into the store by breaking the plate-glass window, that there is an absence of circumstances showing the commission by him of a breaking and entry, which is a requisite of the crime of burglary. A stronger case of circumstantial evidence of either his personally breaking and entering as a principal, or in his participating therein as an aider or abettor, can hardly be imagined. Circumstantial evidence to show either is sufficient. Godfrey v. State, Ala.Cr.App., 333 So.2d 182 (1976); Walker v. State, 56 Ala.App. 248, 320 So.2d 763 (1975).

Appellant challenges as unconstitutional the “one-for-one” striking system in Jefferson County in criminal as well as civil cases. It is a renewal of the challenge that has been invariably overruled for more than forty years. Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, 335 So.2d 688 (1976), cert. denied, 429 U.S. 963, 97 S.Ct. 393, 50 L.Ed.2d 332 (1976); Liptroth v. State, Ala.Cr.App., 342 So.2d 959, cert. denied 342 So.2d 961 (1977), cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977); Mayes v. State, Ala.Cr.App., 350 So.2d 339 (1977).

The only other insistence on error to reverse relates to the following portion of the record, during the interrogation by the State of an employee of Sears Roebuck & Company as to the plate-glass window that was broken, as follows:

“Q. Do you know what the cost of the glass contract was to replace that glass?
“A. Yes, sir.
“MR. HEFFLER: Objection, Your Hon- or. It is irrelevant to the entire matter at hand.
“THE COURT: Overruled. You may answer.
“A. The glass contractor price for replacing the glass, including the time to board it and to replace it Monday, was eight eighty-two seventy-seven.
“Q. That is eight hundred eighty-two dollars and seventy-seven cents?
“A. Yes, sir.”

We are not convinced, as apparently appel-lee would have us, that the cost of replacing the glass window had any material bearing on the issue in the case. Even so, any objection to the evidence was not properly presented. It is to be noted that the only objection made was made after a question had been answered. No motion was made to exclude such answer. No further objection was made to any question on the point. Reversible error cannot be predicated upon the action of the court under such circumstances. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975); Garraway v. State, Ala.Cr.App., 337 So.2d 1349 (1976); Burlison v. State, Ala.Cr.App., 369 So.2d 844, writ denied, Ex parte Burlison, 369 So.2d 854 (1979).

As an alternative to his argument that the judgment should be reversed, appellant argues that the case should be remanded to the trial court for modification of the sentence to imprisonment for eight years. He bases this on the proceedings at the time the sentence was pronounced that indicate that Bradford Love, on his plea of guilty, was sentenced to two years imprisonment. No authority in this Court is shown for a substitution of its judgment for that of the trial court as to the punishment to be imposed within the statutory range. Even if this Court had such authority, it would not do so under the circumstances presented, which include the record of this appellant in Jefferson County as follows:

A conviction of grand larceny in 1962 and a sentence of 18 months; an attempt to commit burglary in 1965 and a fine therefor; grand larceny in 1968 and a sentence of 18 months; burglary in 1970 with a sentence for a year and a day; robbery in 1971 with a sentence of 15 years; burglary in 1976 and a sentence of 2 years.

At the hearing at the time of the sentence in the instant case, it was also made known to the court that at the time of defendant’s arrest he was on a furlough from the penitentiary for five days.

Finding no error in the record, the judgment of the trial court is due to 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.


text:
    Norman L. BRAGER, alias v. STATE.
    7 Div. 685.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    William T. Denson, Goodwater, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The indictment charged Norman L. Brag-er, alias, with the first degree murder of Homer Willis Pearson “by shooting him with a pistol.” The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment. The trial court set sentence in accordance with the verdict.

Inasmuch as a complete statement of the facts is not necessary to an understanding of the issues in this case, and, moreover, because no motion to exclude the evidence was made, no request for the affirmative charge, nor a motion for a new trial challenging the weight and sufficiency of the evidence, a succinct statement of the evidence will be hereinafter set forth.

This cause arose from a shooting which occurred late Saturday evening on June 24-25, 1978, outside a casino belonging to one Robert Thompson near Kymulga in Tallade-ga County, Alabama.

The State’s witnesses established that the deceased, Homer W. Pearson, rode to Thompson’s club with one Robert Ballard on the night of Saturday, June 24, 1978, arriving there between 10:00 and 11:00 o’clock p. m. A crap game was in progress just outside the club and both Ballard and Pearson engaged in shooting dice with others in the proximity of the club. Later Pearson, according to the appellant, Brager, and two other witnesses became irritated when the appellant, Norman Brager, attempted to enter the crap game and, according to the appellant, recover some losses which he had sustained earlier that day in another crap game. Finally, Homer Pearson obtained a shotgun and stated, “I will take care of him,” referring to Brager. Several witnesses interceded with the result that Pearson went back to his automobile and put up the shotgun, then returned a short time later and continued to shoot dice. A few minutes thereafter, Brager reappeared with pistol in hand and fired at Pearson, stating, “I am.going to kill you.” All except one witness testified that Pearson was unarmed at the time of the shooting. Two friends picked up Pearson and drove his body to the Sylacauga hospital where he was subsequently pronounced dead. Appropriate evidence put on by the State of Alabama established that the deceased died of a pistol shot on the night of June 24-25, 1978, while engaged in the crap game outside Thompson’s casino in Tallade-ga County.

I

The appellant contends on appeal that the State of Alabama violated the appellant’s constitutional. rights by failing to provide access to grand jury testimony which might have been used by counsel for the appellant in cross-examining certain of the State’s witnesses. The appellant’s attorney cites us to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the United States Supreme Court extended the tests formulated in Mooney v. Holohan by stating, “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.”

Moreover, the holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), reads as follows:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Appellant’s counsel refers us to his cross-examination of State’s witness Lorenzo Teague (Volume I, R. pp. 155-173):

In his testimony on direct, witness Teague had placed the parties at the scene of the crap game and referred to the fact that when Norman Brager reappeared he did so with pistol in hand and he approached the deceased, who was then engaged in shooting dice.

During the cross-examination of Teague, the scene outside the casino at the parking lot was described, as well as the position of several automobiles parked in the lot (this was also described by several other witnesses) as well as the fact that after the initial firing of the pistol by the appellant, Brager, the owner of the club, Robert Thompson also appeared and fired his pistol in an apparent attempt to “break up the shooting.”

The colloquy between defense counsel and the court reads as follows (Volume I, R. pp. 167-171):

“Q. Did you go before the Grand Jury and testify in this case?
“A. Did I go?
“Q. Did you go before the Grand Jury in this case and testify?
“A. Uh ...
“Q. Did you come up here before eighteen people on an earlier date and answer some questions in response to the District Attorney’s questions?
“A. Yes.
“Q. Your Honor, at this time we make a motion to produce those Grand Jury notes.
“MR. LOVE: I object to that. I don’t want to go to jail for that. The Code provides what that _ (INTERRUPTED)
“Q. We make a motion to produce those, Your Honor. Yesterday those notes were used to show a prior inconsistent statement.
“MR. RUMSEY: Your Honor, Your Hon- or, before ... (INTERRUPTED)
“MR. DENSON: I want to make a motion to have those produced.
“MR. RUMSEY: Can we have the jury taken out, Your Honor?
“THE COURT: Mr. Denson, the Code of Alabama provides that the only time that the Grand Jury testimony can in any way be used is to impeach a witness by reason of an inconsistent statement or prosecute them for perjury and otherwise to produce those in open court would be in violation of the laws and put all of us guilty of a misdemeanor. Therefore, I have to sustain the objection.
“MR. DENSON: Your Honor, may I read an exception into the record?
“THE COURT: Certainly.
“MR. DENSON: We respectfully take an exception to the ruling of the Court denying us the opportunity to have available the copy of the Grand Jury’s testimony as this man testified to, and we take exception _
“THE COURT: This man testified to _ this man testified to the Grand Jury?
“MR. DENSON: Yes, Your Honor.
“THE COURT: Was it anything other than ... (INTERRUPTED)
“MR. RUMSEY: Your Honor, he testified before, the November Term, 1978 Grand Jury.
“THE COURT: I understand, but there’s been testimony today — (INTERRUPTED)
“MR. LOVE: No, sir.
“MR. RÜMSEY: No, sir.
“THE COURT: Did I misunderstand you? Okay, overrule.
“MR. DENSON: I’m looking for an inconsistency, Your Honor.
“THE COURT: If you asked him did he make an inconsistent statement or what the statement was, but I cannot in any way allow that testimony. If there was an inconsistent statement I’ll allow you to ask him about that inconsistent statement and lay the foundation for what that inconsistent statement was.
“Q. All right.
“THE COURT: The Grand Jury proceedings is of course secret and cannot be devulged.
“Q. Now when you testified before the Grand Jury _ you remember you came up here in November and testified don’t you?
“A. Yea.
“Q. Did you tell them when you testified that you saw Norman walk up?
“A. Yea.
“Q. And did you tell them what direction he came from?
“A. No, because _
“Q. What did you say?
“A. No, sir.
“Q. You didn’t tell them which direction he came from?
“A. No, sir.
“Q. You’re not certain as to which direction he came from?
“A. No.
“Q. And you saw him just a short time before he arrived up to this group of people. Is that right?
“A. Yea.
“Q. Now when you first saw him — you said you saw him walk up how far away from this group of people was he?
“A. He wasn’t too far from them.
“Q. Pardon? Far from me to you?
“A. From about like that.
“Q. Four or five feet, Your Honor?
“THE COURT: About six feet.
“Q. Remember any of the other people that were standing in this crowd?
“A. No.
“Q. And do you have a judgment as to how many guns were fired that night? During the whole volley of fire?
“A. How many were fired?
“Q. How many?
“A. I don’t know.
“Q. Do you remember how many shots you heard?
“A. I wasn’t trying to count them.
“Q. In your best judgment do you have an opinion?
“A. No, sir.
“Q. How long had you known Homer Pearson, the deceased man?
“A. I been knowing him a good while.
“Q. How long have you been knowing Norman?
“A. I knowed Norman before I knowed him.
“Q. You and Homer were friends weren’t you?
“A. Yes, sir. We was all right.”

At the outset, it should be here pointed out that at no time during trial did the attorney for the State use his notes from the grand jury or the grand jury testimony in presenting the State’s side of this case. See Stroud v. State, 56 Ala.App. 692, 325 So.2d 200, cert. quashed, 295 Ala. 424, 325 So.2d 204.

Moreover, as may be seen, counsel was allowed to inquire if the witness had testified before the grand jury and if in fact he had made some prior inconsistent statement at trial. An extensive cross-examination was allowed defense counsel in examining each witness.

In our examination of this record we do not find any pretrial motion whatever by way of discovery, nor do we find that the State of Alabama withheld or suppressed any evidence favorable to the accused. To the contrary, our examination reveals that the State’s witnesses testified that the deceased, Pearson, had initially threatened the appellant, Brager, before various parties at the scene prevailed upon Pearson to put his shotgun away and go for a ride.

The evidence at trial established that Pearson did so and then returned to the casino and reentered the crap game. Only one witness indicated that Pearson was armed, whereas a number of witnesses for both the State and the defense testified that the deceased, Pearson, was unarmed at the time he was fatally wounded. One witness endeavored to say that Pearson had “a can of beer,” but no pistol, shotgun, or rifle.

We are therefore clear to the conclusion that the State of Alabama did not unconstitutionally suppress evidence favorable to the accused, nor allow false evidence to go uncorrected to the jury.

Further, the appellant’s request to see the grand jury testimony was properly denied by the trial judge. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779, cert. denied 292 Ala. 506, 296 So.2d 784 (1974); and State ex rel. Baxley v. Archer, Ala.Cr.App., 335 So.2d 240 (1976).

II

We have carefully examined this record and find no error therein. Extensive cross-examination was allowed as to each witness for both sides and the State established a prima facie case.

The trial court properly instructed the jury on the applicable law to which no exception was taken.

The judgment is therefore due to be and is hereby

AFFIRMED.

All the Judges concur.


text:
    Yul Devoe GUICE, alias, v. STATE.
    7 Div. 698.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.

      Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., George Hardesty, Jr., Special Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The only issue expressly presented by appellant is whether the trial court committed reversible error in failing to state to the jury, in reading defendant’s given written charges, that they were “correct statements of the law to be taken by you in connection with what has already been said to you,” as provided by Code of Alabama 1975, § 12-16-13. Appellant was convicted of robbery and sentenced to imprisonment for fifty years.

In reading the charges to the jury, the court did not identify them as charges given by the court “at the request of the . defendant,” which is also provided by the cited section of the Code. At the conclusion of the court’s oral charge, which included its reading to the jury the written charges given at the request of defendant, the following occurred:

“MR. MARTIN [Attorney for the State]: Your Honor, I just want you to tell the jury that those slips of paper that you read are requested charges of the Defendant.
“THE COURT: All right.
“Ladies and Gentlemen, these charges that I read to you from this slip of paper were charges that were requested by the Defendant.
“Satisfied, Gentlemen?
“MR. MARTIN: Yes, sir, Your Honor.
“MR. CUNNINGHAM [Attorney for Defendant]: Defendant is satisfied.
“THE COURT: Ladies and Gentlemen, you will now retire with the Bailiff to start your deliberations to reach a verdict in this case.”

The language of the statute on the subject is clear and should be followed, substantially at least. Higdon v. State, Ala.Cr.App., 367 So.2d 991, 994-995 (1979); Ritter v. Gibson, 217 Ala. 304, 307, 116 So. 158, 160 (1928); Jordan v. State, 17 Ala.App. 575, 87 So. 433 (1920).

The language of the statute was not substantially followed in the instant case. Even so, the failure to raise the particular point in the trial court precludes a reversal of the judgment. Referring to the predecessor of the cited section of the Code, it was held in Powell v. State, 51 Ala.App., 398, 399, 286 So.2d 73, 74, cert. denied, 291 Ala. 796, 286 So.2d 75:

“This statute must be substantially complied with, but absent some action on the part of appellant in bringing the omission to the attention of the trial court and invoking a ruling thereon, this Court will assume that it was waived by the defendant. Gurry v. State, 23 Ala.App. 140, 122 So. 303.”

A fortiori, this is true when, as here, satisfaction with the court’s charge was affirmatively shown.

The victim of the alleged robbery testified that about 8:00 P.M. March 10, 1979, as he was carrying a paper sack with a bank deposit bag in it containing four hundred twenty dollars, plus some checks, a man pointed a single barrel shotgun at him and told him to drop the sack. He said he did not see the robber’s face but that he “recognized the voice as being the Defendant, Yul Devoe Guiee.” He said he had known defendant in high school, that defendant lived within two blocks of the store that the victim managed and that defendant had been coming to the store every day for the preceding several months. There was some alibi testimony on behalf of defendant. Defendant did not testify. Notwithstanding any weaknesses in the evidence as claimed by appellant, a jury issue was presented. There is no contention on appeal to the contrary.

There is no error in the record. 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.

      . In criminal cases. See Code commissioner’s note after § 12-16-13: “This section is superseded by A.R.C.P., Rule 51, as to civil proceedings, but has been retained for possible applicability in criminal or probate proceedings.”