text:
    Ronald SMITH, alias, v. STATE of Alabama.
    6 Div. 495.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Hugh C. Henderson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Ronald Smith was indicted for “receiving stolen property in the second degree” in violation of § 13A-8-18, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment.” After dismissing the jury, the trial court had a lengthy discussion with counsel over the issue of sentencing appellant under the Habitual Felony Offenders Act, § 13A-5-9, Code of Alabama 1975. Since there was much dispute as to the adequacy of notice to appellant that he would be sentenced under the recidivist statute, the trial court postponed sentencing until several weeks later, at which time the trial court, in light of evidence adduced at the sentencing hearing and § 13A-5-9, Code of Alabama guidelines, sentenced appellant to imprisonment in the penitentiary for a term of twenty years.

On May 7, 1980, an automobile was broken into and numerous items of clothing, shoes, an attache ease, a valise case, a pager, a small calculator, and a large suitcase were stolen from within. This property belonged to one Mr. Warren Brook, who discovered and immediately reported the theft around 7:30 p. m. that evening.

Officer Gary Renn Childs of the Birmingham Police Department responded to the victim’s call. Officer Childs took a full report of the theft, after which he and the victim searched the vicinity for clues and for the missing goods. They found nothing except a metal pipe which apparently was used to break open the rear window of the car and some fresh blood on the seat of the car leading them to believe that the thief cut himself during the burglary.

With nothing else to go on, the two men left the scene and Officer Childs returned to his routine patrol.

A short time later about one block (diagonally) from the scene of the crime, Officer Childs observed appellant carrying a suitcase that fit the description of the one stolen from Mr. Brook. Childs stopped appellant who stated he had just come into town on a bus. Appellant consented to Child’s request to see the contents of the suitcase. Upon finding several other items that fit the descriptions given by Mr. Brook, some of which had traces of blood on them, Officer Childs arrested appellant and read him his Miranda rights.

Appellant told Childs that he didn’t steal the goods but instead had acquired them from a man named “Shorty”. Appellant took Officer Childs to a nearby playground where the rest of the goods were recovered. “Shorty” had, apparently, absconded.

On the way to the police station appellant told Officer Childs that he had suspected that “Shorty” had stolen the merchandise but that he, appellant, had nothing to do with the theft itself. Officer Childs had already checked appellant’s hands and arms and had found no cuts or abrasions to indicate that he had broken into the automobile.

That night Mr. Brook was summoned to the police station, where he identified the merchandise, including the goods that appellant had at the time of his arrest, as his property stolen from the automobile.

The following day Sergeant Phillip Tip-ton of the Birmingham Police Department met appellant, read him the Miranda rights again, and read him the waiver form which appellant then read and signed. Subsequently, without any threats, coercion, intimidation or inducement by Sergeant Tip-ton, appellant repeated to Sergeant Tipton that he, appellant, had taken the goods from “Shorty” even though he suspected that they were stolen. Appellant’s complete statement was transcribed and then read and signed by appellant and witnessed by Sergeant Tipton.

All of the above evidence was introduced during the trial of this case, including both the oral and written statements by appellant to police officers. The two statements were admitted over appellant’s motion to suppress, which was based on the grounds that they were improperly extracted from appellant.

After the state’s case was completed, appellant moved for dismissal for failure to prove the elements of “receiving stolen property in the second degree.” This motion was denied and the defense rested without offering any evidence on appellant’s behalf.

The jury found appellant “guilty as charged.”

Sentencing was postponed to give appellant more time to respond to sentencing under the Habitual Offender Act. At the sentencing hearing, the state introduced evidence of four prior felonies, one of which was arguably insufficient because the record did not show that appellant was represented by counsel.

On the basis of the other three prior convictions and the jury verdict in the instant case, the trial court sentenced appellant to twenty years’ imprisonment. This appeal followed.

I

The indictment contained appellant’s alias, “Wayne Hardy”, which was read, in due course, to the jury. Appellant contends that this was reversible error in that any mention of an alias to the jury is highly prejudicial to a defendant, especially where he elects not to testify on his behalf. Appellant cites no authority and we can find none to support this contention.

The indictment was read to the jury in its entirety and the trial court instructed the jury as to the insignificance of the alias listed. (R.31).

In a similar case this court ruled that even the alias, “Hitler”, when read to the jury did not constitute prejudicial error. Harris v. State, 48 Ala.App. 723, 267 So.2d 512 (1972). In keeping with this rule we find that the mere introduction to the jury of a name (here “Wayne Hardy”) by which appellant is in fact otherwise known, will not be cause for reversal.

II

Appellant also contends that the trial court erred in denying his motion to suppress the appellant’s oral and written statements in which he admitted that he suspected the property in question was stolen. Appellant’s argument is that these statements were coerced by the police officers under circumstances that made these statements involuntary and, therefore, inadmissible. Houston v. State, 56 Ala.App. 295, 321 So.2d 261 (1975).

Having reviewed the evidence, we find nothing to indicate that the appellant’s statements were other than freely, intelligently and voluntarily given. Appellant had been lawfully arrested and properly informed of his Miranda rights. He did not offer any testimony to refute the testimony of the two police officers who took the respective statements independently of each other. Each officer testified that the statement he took was given without threats, coercion, intimidation or inducement and only after the Miranda warnings were explained. Based on the evidence we hold that both statements, which were consistent with each other and uncontroverted, were properly admitted. Houston v. State, supra; and cases cited therein.

Furthermore, even if these incriminating statements had been ruled inadmissible, the circumstances were such as to convince a jury that the appellant had the “requisite knowledge” to be guilty of the crime of “receiving stolen property.” See Goodman v. State, Ala.Cr.App., 401 So.2d 208, 1981, and cases cited therein.

Ill

At the end of the voir dire examination of the arresting officer, the appellant moved to suppress the state’s evidence seized at the time of the arrest on the grounds that the arresting officer lacked “probable cause” for arrest. The trial court’s denial of this motion is asserted as error.

A

Appellant argues that since he was not “acting suspicious” and did cooperate fully with the investigating officer, there was no “probable cause” or “reasonable grounds” for a lawful arrest. Consequently, he argues that the “search and seizure” of the suitcase and its contents were not “incident to a lawful arrest” and should have been excluded by the trial court.

The logical extension of this argument by appellant would be that a perpetrator of a crime can avoid arrest, search and seizure, (and, therefore, evade the law) as long as he doesn’t act “suspicious” and instead cooperates with the authorities, in spite of the surrounding circumstances.

Such a rule would be unreasonable and unworkable in law.

The proper rule to apply in this case is set out in § 15-10-3, Code of Alabama 1975, which reads:

“An officer may arrest any person without a warrant, on any day and at any time, for:
“(1) Any public offense committed or a breach of the peace threatened in his presence;
“(2) When a felony has been committed, though not in his presence, by the person arrested;
“(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed it;
“(4) When he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed.” (Emphasis added).

The uncontroverted evidence provided sufficient proof that a felony was committed when someone burglarized the automobile and removed the aforementioned items of personal property, including Mr. Brook’s suitcase. Appellant was seen about an hour later, one diagonal block from the scene of the theft, and was carrying a suitcase matching the description given to the arresting officer. The suitcase and appellant’s trousers had traces of blood on them. Blood had also been found on the rear seat of the automobile from which Mr. Brook’s property was taken. These circumstances certainly gave the arresting officer “reasonable cause to believe” that appellant was involved in the theft and provided sufficient justification for appellant’s arrest. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973); Knight v. State, Ala.Cr.App., 346 So.2d 478, 481, cert. denied, Ala., 346 So.2d 483 (1977).

B

The appellant rests his argument regarding the validity of the search of the contents of the suitcase upon the validity of the arrest. Since we hold that the arrest was valid, we also find that the search was lawful as “incident to a lawful arrest.” White v. State, 45 Ala.App. 1, 221 So.2d 117, cert. denied, 284 Ala. 734, 221 So.2d 119 (1969), and cases cited therein. Thomas v. State, supra.

Furthermore, the appellant consented to the arresting officer’s search of the suitcase. For aught that appears such consent was both “knowing” and “voluntary”. Appellant, therefore, waived his right to invoke the exclusionary rule via the “consent” exception. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Thomas v. State, 57 Ala.App. 320, 328 So.2d 321 (1976); Garrett v. State, Ala., 369 So.2d 833 (1979).

IV

After the verdict was returned, the trial court proceeded to sentence appellant for “second degree receiving stolen property.” The prosecutor objected, noting that the Habitual Offender Act had been invoked and proper notice had been served on appellant just prior to trial. During a lengthy discussion regarding the timeliness of the notice given, the state convinced the trial court to grant a continuance of the sentencing hearing to cure any defect in notice and, thereby, allow appellant additional time to respond to the prior convictions. Over appellant’s objection, the trial court granted a continuance of about five weeks. Appellant asserts this as reversible error. We disagree.

Appellant cites Rule 6(b)(3), Alabama Rules of Criminal Procedure Temporary Rules, in support of his argument. This rule requires that a defendant be given “notice” of prior convictions that will be used against him at a “reasonable time” prior to the sentencing hearing. Appellant also cites a Jefferson County local rule that “notice” must be given “as soon after indictment as practical.” Appellant asserts that such notice is necessary not only to allow the defendant time to defend against the prior conviction but also to give the defendant a chance to “deal” with the district attorney.

This court recently cleared up the issue of timely “notice” under the Alabama Habitual Felony Offender Act in Holley v. State, Ala.Cr.App., 397 So.2d 211 (1981), by construing the “reasonable notice” standard of Rule 6(b)(3).

In Holley v. State, supra, the Habitual Felony Offender Act was not invoked until after trial of the “substantive offense”. Nevertheless, the requirement of “advance notice” in Alabama was put to rest by Judge DeCarlo who stated for this court:

“In Oyler v. Boyles, 368 U.S. 452, 82 S.Ct. 501 [7 L.Ed.2d 446], the United States Supreme Court stated:
‘[T]he determination of whether one is an habitual criminal is “essentially independent” of the determination of guilt on the underlying substantive offense . . . “it is a distinct issue, and it may appropriately be the subject of separate determination.” . . . [D]ue process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding.’
“Therefore, ‘advance notice’ of the State’s intention to proceed against Holley as a recidivist prior to his trial for the ‘substantive offense’ which triggers the operation of the Alabama Habitual Felony Offender Act, supra, was not required. The Supreme Court in Oyler v. Boyles, supra, held that, although due process does not require notice prior to trial on the ‘substantive offense,’ a defendant must have ‘reasonable notice,’ and an opportunity to be heard relative to the recidivist charge, and the assistance of counsel.”

Although there was quite a bit of confusion during the trial below concerning this issue (R.97 — 113) (and understandably so, considering the scarcity of applicable case law on the subject at the time of the hearing), we hold that the trial court correctly granted a continuance of the sentencing hearing, and in doing so, cured any possible injury to appellant by giving him several weeks to respond to the recidivist charges.

We refrain from commenting on the local court rules, which are not in issue, other than to say that the “as soon as practical after indictment” standard should now be conformed to our decision today, either by interpretation or by amendment.

We also resist commenting on appellant’s assertion that “advance notice” is necessary so that defendants can effectively “deal” with prosecutors.

We hold only, in accordance with Oyler v. Boyles, 368 U.S. 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), and Holley v. State, supra, that due process of law is satisfied by “reasonable notice” with “an opportunity to be heard relative to the recidivist charge” and that the notice given in this cause was sufficient in law.

V

Appellant further contends that even if notice was sufficient, reversible error was committed in the presentencing hearing when the prosecution was allowed to introduce evidence of a prior conviction where appellant was not represented by counsel.

The record shows that three other prior convictions were properly established without objection and that only the fourth was, arguably, faulty as noted by appellant. Under very similar circumstances this court, recently, pronounced the rule in Watson v. State, Ala.Cr.App., 392 So.2d 1274, cert. denied, Ala., 392 So.2d 1280 (1980), that any error in proving prior convictions in excess of the number needed to invoke the Habitual Offender Act is error without injury, where the evidence of the unneeded prior convictions did not prejudice the defendant. Here the sentence was only slightly stiffer than the prescribed minimum for three pri- or felonies (twenty years compared to fifteen years to life range). This supports our finding that the error, if any, in proving the fourth prior felony was harmless. Watson, supra.

Appellant’s other contention raised in brief is unfounded.

Appellant for all intents and purposes, admitted in his pretrial statements, and all of the evidence adduced at trial supported the fact, that he had “received stolen property” with “knowledge” that it had been stolen. We have reviewed the issues raised by appellant and this entire record and have found no reversible error.

This case is, therefore, due to be and is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Ronald SMITH. (Re Ronald Smith, alias, v. State of Alabama).
    80-608.
    Supreme Court of Alabama.
    July 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge.

text:
    Donald Charles STINSON v. STATE.
    8 Div. 377.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Jerry Knight, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Robbery; thirty-five years.

Appellant, an indigent, was convicted of the robbery of Mustafa Issa (Mike) Elayan, a pharmacist and the proprietor of Valley Drug Company in Decatur, Alabama. On Sunday, May 3, 1979, at approximately 4:00 P.M., Elayan and his fourteen-year-old daughter Sana’a (Dawn) were working in the drugstore when two white males, armed with guns, entered the store, grabbed a customer, Mrs. Sharon Terry, by the neck and threatened to kill her unless Elayan gave them drugs and money. The intruders took two bottles of phenobarbital and some $21.00 in cash and put them in a pillowcase. As they left the drugstore, they accosted another customer, Mrs. Annie Sue Cooper, who was just entering the door, and demanded her car keys. They left the store in Mrs. Cooper’s silver and maroon 1974 Oldsmobile Cutlass. At trial, both Mrs. Terry and Mrs. Cooper, as well as Elayan and his daughter Dawn, positively identified Michael Steven Bice and Thomas Wilson Barnett as the men who had committed the robbery at Valley Drug Company.

James Clemons testified that shortly after 4:00 P.M. on May 13,1979, he observed a silver and maroon Oldsmobile Cutlass traveling at a high rate of speed through the intersection of Sixteenth Avenue and Grant Street in Decatur. He saw the vehicle run a red light, swerve and barely miss hitting his own car, jump the curb, and cut across a field. Clemons stated that two white males then left the Cutlass and jumped into a slowly-moving brown Pinto automobile which had the passenger-side door open. Clemons could not see the driver of the Pinto, but he observed the two men jump into the car and crouch down in the back seat.

Mrs. Jonnie Kunes stated that on the date in question she saw two white males jump from a medium-sized dark car and run toward the Tennessee river. She observed the dark car speed off across the river bridge.

Mr. Joseph Taylor testified that he observed a white male, whom he positively identified as Michael Steven Bice, alight from a Pinto automobile just south of the Tennessee River Bridge and run across the bridge toward the river.

Decatur Police Officer Ron Livingston stated that he pursued a brown Pinto automobile across the Tennessee River Bridge, and when he stopped the vehicle, it was being driven by the appellant.

On the afternoon in question, Lt. Frank Shafer observed Michael Steven Bice hiding in the bushes underneath the Tennessee River Bridge. Lt. Shafer and Officer Michael Harvey arrested Bice; Officer Harvey identified a pistol found in the area where Bice was hiding.

On the same day, Officer Thomas Patterson found a silver and maroon 1974 Oldsmobile Cutlass abandoned on a vacant lot at Sixteenth Avenue and Grant Street in Decatur. Officer Patterson stated that when he discovered the automobile the engine was running and both doors were open. The State introduced into evidence the following items recovered from the Cutlass: two bottles of phenobarbital; a metal money box bearing the name “Valley Drug Company” and a green pillowcase.

Sgt. Richard Crowell identified the following items found in the Pinto automobile being driven by appellant: two leather holsters, a wallet, a driver’s license, and two rings.

Detective Edgar Taylor testified that he questioned Michael Steven Bice about the physical evidence found in the Pinto. Detective Taylor stated that he observed on Bice “white marks similar to those a person would get who wore a ring habitually and had removed the ring.” Taylor also identified a photograph of Bice showing the rings on Bice’s fingers. Over appellant’s objection and motion for a mistrial, Detective Taylor then stated that Michael Steven Bice had admitted ownership of the rings.

At the conclusion of the State’s case, appellant moved to exclude the evidence on the ground that a prima facie case of robbery had not been proved. The motion was denied and the defense rested.

I

Appellant contends that the trial court erred by refusing to give his requested written charges numbered 18, 19, and 24, dealing with reasonable doubt. Our review of the court’s instructions to the jury, however, convince us that the matter of proof beyond a reasonable doubt was substantially and fairly covered in the court’s oral charge and the giving of appellant’s written requested charge No. 20. See § 12-16-13, Code of Alabama 1975; Dillard v. State, Ala., 371 So.2d 947 (1979).

II

Appellant next asserts that the trial court erred in denying his motion for a mistrial based on the testimony of Sgt. Edgar Taylor that Michael Steven Bice had admitted ownership of two rings found in the Pinto appellant was driving. He argues that Bice’s statement was an extra-judicial confession implicating appellant. Thus, he maintains that the statement was hearsay, and under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), its admission denied him his Sixth Amendment right of confrontation.

Before proceeding to appellant’s Bruton claim we must determine whether Bice’s statement was inadmissible hearsay.

From the evidence presented at trial the jury could have inferred that, although appellant did not participate with Barnett and Bice in the actual robbery of Valley Drug Company, he attempted to help them escape in a brown Pinto automobile. Under this view of the evidence appellant, Barnett, and Bice were co-conspirators.

A conspiracy need not be proved by direct and positive evidence, but may be inferred from the conduct of the parties and all the attendant circumstances accompanying the doing of the act. Williams v. State, Ala.Cr.App., 375 So.2d 1257, cert. den. Ala., 375 So.2d 1271 (1979); Macon v. State, 30 Ala.App. 276, 4 So.2d 439, cert. den. 241 Ala. 675, 4 So.2d 442 (1941).

The State may prove, against the accused, the existence after the crime of a physical fact which tends to show the guilt of his co-conspirator. Williams v. State, supra; Lancaster v. State, 21 Ala.App. 140, 106 So. 609, cert. den. 214 Ala. 2, 106 So. 617 (1925); Dawkins v. State, 20 Ala.App. 54, 100 So. 619 (1924); C. Gamble, McElroy’s Alabama Evidence, § 195.03(8) (3d ed. 1977).

In the present case, two white males carrying guns robbed Valley Drug Company. Appellant was driving a brown Pinto automobile answering the description of a car which slowed to allow two white males to enter, after they had exited from a vehicle used in the initial escape from Valley Drug Company. The same brown Pinto was seen heading toward the Tennessee River Bridge. Appellant, Barnett, and Bice were apprehended near the bridge. Two holsters and two rings were found in the Pinto. Under these facts, it is our judgment that Bice’s later acknowledgement that the rings were his tended to connect the appellant with the conspiracy, and was admissible to show that connection. Williams v. State, supra. Therefore we find no error in the admission of Bice’s statement since it qualifies as a co-conspirator exception to the hearsay rule. C. Gamble, McElroy’s Alabama Evidence, § 195.03(8), supra; Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (Admission of accomplice statement under Georgia co-conspirator hearsay exception.)

Ill

In Bruton, supra, the United States Supreme Court held that a defendant was denied his constitutional right secured by the Confrontation Clause when a co-defendant’s confession, also implicating him, was admitted in a joint trial, without the opportunity for cross-examination of the declar-ant, and in spite of cautionary instructions to the jury to disregard the co-defendant’s statement when deciding the defendant’s guilt. In our judgment, the rule enunciated in Bruton, supra, does not apply here.

Initially, we note that the proceeding below was not a joint trial. Both Barnett and Bice had been previously convicted and were serving time in the State penitentiary. They were present during appellant’s trial by virtue of a court order for the prosecution of incarcerated witnesses from the State penitentiary.

Further, we note that Bice’s admission of ownership of the two rings does not amount to a “confession.” It does not, on its face, acknowledge guilt of the substantive offense of robbery. At most, it amounts to a statement of collateral fact which becomes incriminating only in conjunction with other facts, i. e., that the rings were found in the alleged getaway car, and that the rings were so large and showy that, without removing them prior to entering the drugstore, Bice might have been more easily identified by witnesses to the robbery. See Powell v. State, 33 Ala.App. 522, 35 So.2d 367 (1948); Tillison v. State, 248 Ala. 199, 27 So.2d 43 (1946); Herring v. State, 242 Ala. 85, 5 So.2d 104 (1941). In Powell v. State, supra, the court observed:

“Statements of collateral facts, not crimi-nating within themselves, but depending on other and outside evidence, disclosing a chain of circumstances incriminating in character, are not confessions or admissions against interest within the rule requiring a predicate of voluntariness prior to their admission in evidence.”

Opper v. United States, 348 U.S. 84, 91 n.7, 75 S.Ct. 158, 163 n.7, 99 L.Ed. 101 (1954). See also, Reid v. State, 168 Ala. 118, 53 So. 254 (1910).

We do not believe that Bruton, supra, is controlling here because Bice’s statement, standing alone, does not directly or inferentially implicate the appellant. The fact that the rings belonged to Bice inculpate appellant only in view of other evidence that they were found in appellant’s vehicle.

We recognize that there is a division of authority regarding the extent to which a co-defendant’s statement should be scrutinized or considered in light of other evidence to determine if it implicates the defendant. Some courts have held that other evidence may be considered in order to decide whether the co-defendant admission implicates the accused. See, e. g., Carter v. State, 266 Ind. 140, 361 N.E.2d 145 (1977), cert. den. 434 U.S. 866 (1978).

Other courts have looked only to the co-defendant’s statement itself; they have reasoned that if it does not, on its face, refer to or implicate the defendant, no Bru-ton, question is presented. See, e. g., United States v. Belle, 593 F.2d 487 (3d Cir. 1978), cert. den., 442 U.S. 911, 99 S.Ct. 2825, 61 L.Ed.2d 277 (1979); United States v. Hicks, 524 F.2d 1001 (7th Cir. 1975); White v. United States, 415 F.2d 292 (5th Cir. 1969).

We believe the better rule to be that a court should examine only the co-defendant’s statement itself for references to or incriminations of the defendant. If none are present, then the court may admit the co-defendant’s statement without considering connecting testimony tending to incriminate the defendant. To hold otherwise would require the trial judge to examine the State’s entire case for “linkages” between the co-defendant’s statement and the defendant. See United States v. Belle, supra, at 496. Such a result would be not only impractical but also contrary to the stated rationale of Bruton itself.

One of the bases for the court’s holding in Bruton was its recognition of the inherent unreliability of co-defendant’s testimony, given the tendency of an accomplice to shift the blame to his confederates. The court stated:

“Not only are the incriminations [of a co-defendant’s confession] devastating to a defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others.”

In the case before us, Bice’s admission of ownership of two rings does not by any means shift blame to appellant. It does not even refer to appellant. Consequently, Bice’s statement is neither “devastating” nor “inevitably suspect,” and it does not fall within the rationale of Bruton. See also Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979).

Finally, the Bruton rules does not apply to the present case because appellant was not denied his right to confront Bice. As the United States Supreme Court stated in Nelson v. O’Neil, 402 U.S. 622, 626, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971):

“[T]he ‘confrontation’ guaranteed by the Sixth and Fourteenth Amendments is confrontation at trial — that is, that the absence of the defendant at the time the codefendant allegedly made the out-of-court statement is immaterial, so long as the declarant can be cross-examined on the witness stand at trial.” [Emphasis in original]

The court continued:

“Moreover, ‘where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.’ ” [Quoting California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489 (1969)].

Bice was present during appellant's trial by virtue of a court order for the production of incarcerated witnesses. The record reveals that he was brought into the courtroom on numerous occasions to be identified by eyewitnesses to the robbery. He was subject to examination, had appellant chosen to call him as a witness. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, (1968) (no opportunity to cross-examine, at trial, unavailable witness who gave preliminary hearing testimony); Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), (outright denial of cross-examination, even though witness present at trial); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) (no opportunity to cross-examine accomplice because he invoked Fifth Amendment privilege); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right of cross-examination denied by introduction of witness’ testimony given at preliminary hearing at which defendant was uncounseled). We cannot assume, from a silent record, that Bice would have refused to testify if appellant had called him. Under these circumstances, we find that appellant was not denied his right of confrontation secured by the Sixth and Fourteenth Amendments; on the contrary, appellant simply chose not to exercise that right.

IV

Appellant argues that the court erred by overruling his motion to exclude the State’s evidence and by refusing his requested affirmative charges. We find no merit to his contention that the evidence was insufficient to present a jury question. Though circumstantial, the evidence pointed to appellant as a member of the conspiracy, Williams v. State, supra, and as the driver of the getaway car for Barnett and Bice. Circumstantial evidence is entitled to the same weight as direct evidence when it points to the accused as the guilty party. Locke v. State, Ala.Cr.App., 338 So.2d 488 (1976). Here the jury could conclude that the evidence excluded every reasonable hypothesis but appellant’s guilt. See Dolvin v. State, Ala., 391 So.2d 133 (1980); Cumbo v. State, Ala.Cr.App., 368 So.2d 871 (1978), cert. den. 368 So.2d 877 (1979).

We have searched the record and have found no error prejudicial to appellant, therefore the judgment and conviction by the Morgan Circuit Court is affirmed.

AFFIRMED.

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

BOWEN, J., concurs in result.


author: ADAMS, Justice.

text:
    Ex parte Donald Charles STINSON (Re: Donald Charles Stinson v. State of Alabama).
    80-607.
    Supreme Court of Alabama.
    July 17, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    Frederick SIMPSON v. STATE.
    8 Div. 404.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.
    Wesley M. Lavender, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the court sentenced him to ninety-nine years in the penitentiary. At arraignment, in the presence of retained counsel, he pleaded not guilty. After sentence was imposed, appellant gave notice of appeal. He was then found to be indigent and was furnished a free transcript, and new counsel was appointed to represent him on appeal.

The evidence was in sharp conflict as to the guilt vel non of appellant. He denied that he was guilty of the crime of robbery and sought to prove an alibi. He was supported in his alibi testimony by his girl friend. They both testified that they spent the night together on the occasion of the robbery.

Omitting the formal parts, the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment Frederick Simpson, whose name is to the Grand Jury otherwise unknown, feloni-ously took a mixed quantity of money consisting of an indefinite number of one, five, ten and twenty dollar bills, in lawful currency of the United States of America, of a total aggregate value of $200.00, a further and better description of which is to the Grand Jury otherwise unknown, the property of John Cornelious, from his person and against his will, by violence to his person, or by putting him in such fear as unwilling to part with the same, against the peace and dignity of the State of Alabama.”

Three eyewitnesses, including the victim, made positive in-court identifications of appellant as the man who robbed John Corne-lious at the Cornelious Grocery in Decatur, Morgan County, Alabama, around 9:00 p. m. on October 1, 1979. Their testimony was sufficient to prove appellant’s guilt beyond any reasonable doubt. Further recitation of the details of the crime would serve no useful purpose. Each element necessary to sustain a conviction for robbery was firmly established. Morris v. State, 97 Ala. 82, 12 So. 276; Robinson v. State, Ala.Cr.App., 337 So.2d 1382; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161. The testimony of the victim alone was sufficient to establish a prima facie case of robbery. Arnold v. State, Ala.Cr.App., 348 So.2d 1092, cert. denied, Ala., 348 So.2d 1097.

The sole issue to be determined on this appeal is the admissibility of appellant’s confession into evidence. Appellant was arrested after midnight on October 10, 1979 and taken to the Decatur City Jail where he was read his Miranda warnings by Sergeant Edward Taylor of the Decatur Police Department. After stating that he understood his constitutional rights, appellant signed a waiver of rights form at 2:40 a. m. Appellant then signed a written confession admitting his guilt in the robbery at 3:17 a. m. Appellant’s confession was witnessed by Sergeant Taylor and Sergeant Bill Davis. Sergeant Taylor’s voir dire testimony also established the proper voluntariness predicate for the admission of appellant’s confession.

Appellant’s testimony on voir dire as to the voluntariness of his confession was conflicting. Appellant testified he was promised he would be helped in receiving a “light sentence and not let my probation officer in Moulton know about it” if he would “go and admit it.”

Where the evidence on the circumstances surrounding a confession is conflicting on voir dire, the trial judge must decide on its admissibility. If the confession is admitted, controverted testimony for the accused goes to the jury on its credibility. McBryar v. State, Ala.Cr.App., 368 So.2d 568, cert. denied, Ala., 368 So.2d 575; Taylor v. State, Ala.Cr.App., 337 So.2d 1368. Where the trial court finds on conflicting testimony that the confession was voluntarily made, that finding will not be disturbed on appeal unless it is palpably contrary to the weight of the evidence. Morgan v. State, Ala.Cr.App., 363 So.2d 1013. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the trial court’s ruling as to voluntariness of a confession need only be supported by substantial evidence and not to a moral certainty. Taylor v. State, Ala.Cr.App., 361 So.2d 1189. A voluntariness predicate laid by the State is sufficient to show prima facie that a confession was made voluntarily. Walker v. State, 269 Ala. 555, 114 So.2d 402. The trial court is not required to accept the testimony of the defendant as to the voluntariness of a confession if there is substantial testimony by others sufficient to constitute a predicate for the admission in evidence of the confession. Bradley v. State, Ala.Cr.App., 337 So.2d 47.

Appellant’s confession was then read to the jury and is as follows:

“Voluntary statement under arrest. Date: October 10,1979. Time: 2:55 A.M. Place: Decatur Police Department. I, Frederick Lamar Simpson, am twenty-one years of age and my address is P.O. Box 176, Hillsboro. I have been advised and duly warned by Edgar D. Taylor, who has identified himself as a police officer, of my right to the advice of counsel before making any statement, and that I do not have to make any statement at all, nor incriminate myself in any manner. I hereby expressly waive my right to the advice of counsel, and voluntarily make the following statement as to the aforesaid person, knowing that any statement that I make may be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made. I declare that the following statement is made of my own free will without promise of hope or reward, without fear or threat of physical harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever. “This is being written by Edgar Taylor, but the words are my own. At the first of last week I was with Glenn Hill and Frederick Birgan. We were in Glenn’s car. We decided to rob Ken’s Market. Frederick Birgan had a .22 pistol. I got out of the car and went in the store to rob it. When I went in there was one or two people inside. I pointed the gun at the boy behind the cash register and told him to give me the money. He took some bills from the cash register and gave them to me. I got about $125.00 from the store. I ran out of the store. I went to the right and then back behind the store. I made my way back to my aunt’s house and changed clothes and left the gun and money. I had got some food stamps, about $50.00 worth, when I got the money from Ken’s Market. I spent the money on beer and whiskey for me and Neely Gray and Frederick. I found out that my father had got the gun and money from my aunt’s house. I told him the gun was mine and that I had won the money gambling. I got the money and the gun back from him. I gave the pistol back to Frederick that same day. I used the pistol I got from Frederick when I got the money. Frederick and Glenn were supposed to pick me up after I robbed the store, but I didn’t go back to where they were.
“I have read this statement consisting of two pages, and I affirm to the truth and accuracy of the facts contained therein.
“This statement was completed at 3:17 A.M. on the 10th day of October, 1979.”

Based on all the surrounding facts and circumstances we find no abuse of discretion iif the trial court’s admitting appellant’s confession into evidence.

We have searched the record, as required by law, for errors injuriously affecting appellant’s substantial rights and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Frederick SIMPSON. (Re Frederick Simpson v. State of Alabama).
    80-704.
    Supreme Court of Alabama.
    July 31, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: BOWEN, Judge.

text:
    Hugh PALMER v. STATE.
    6 Div. 966.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      John A. Bivens of England, Bivens & Hardaway, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   ON RETURN TO REMAND

BOWEN, Judge.

The opinion issued by this Court on October 7, 1980, is hereby withdrawn and the following becomes the opinion of the Court.

In April of 1978, Mrs. Edwin Rinehart was killed in an automobile accident caused by an intoxicated Hugh Palmer.

The defendant was indicted and convicted for second degree murder. Sentence was twenty years’ imprisonment.

I

Initially, it is argued that an inculpatory statement was improperly admitted into evidence in that it was not proven that the defendant was capable of intelligently and knowingly waiving his constitutional rights because of his physical and mental condition following the collision.

Approximately two hours after the accident, Alabama State Trooper L.S. Bargi-near questioned the defendant in the emergency room of the Druid City Hospital. The defendant was lying on a bed or cot awaiting treatment. Trooper Barginear read the defendant his “Miranda rights from a card and asked him if he understood those rights. The defendant said he understood and consented to talk. The trooper stated that the defendant’s speech was “slurred” and that the defendant appeared to have been drinking. However, Bargi-near stated that the defendant responded to all of his questions, appeared to understand what his rights were, appeared to have his faculties about him, responded to his questions in an intelligent manner, and appeared to have no difficulty in comprehending what the questions were and providing answers. When asked, “Is there anything in your mind to cause you to hesitate about believing that Mr. Palmer did knowingly and intelligently understand the questions on that occasion?”, the trooper responded, “Like I said, he understood them.”

The defendant had a blood-alcohol level of .26. There was no evidence of how this degree of intoxication affects comprehension and understanding. The defendant had an open wound on his head which had not yet been sewn up. The delay in closing the wound was apparently caused by the fact that the emergency room physician requested the assistance of a facial plastics doctor to come in and repair the cut over the eye. This laceration on the defendant’s face was “pretty extensive” but there was no concussion. The emergency room physician responded to a question about whether he noticed anything unusual about the defendant’s speech: “Well, if you mean was he all together, with it — he was not; he was groggy, almost lethargic.” When this physician was questioned about the defendant’s ability to answer his questions and assist in the examination, the doctor replied, “When I asked him to roll over, sit up, this sort of thing, he could do that.”

The trial judge wisely reserved his ruling until he had heard the trooper’s questions and the responses given by the defendant. The trooper testified that the only question that the defendant had difficulty with was his current address. The defendant did not know his box number but the trooper stated that “they change them up there every three days, I believe.” The defendant told Trooper Barginear that he was taking medication for high blood pressure.

In order for intoxication to render a confession inadmissible, it must be shown that the mind would have been impaired substantially. This principle was discussed in Rogers v. State, 365 So.2d 322, 334 (Ala.Cr.App.), cert. denied, 365 So.2d 334 (Ala.1978), where this Court concluded:

“Where ample evidence, even though conflicting, exists from which the trial judge could conclude that the appellant was not intoxicated to the extent of mania, the admission of a confession for a jury’s consideration is not an abuse of discretion.” Rogers, 365 So.2d at 334.

See also Jackson v. State, 375 So.2d 558 (Ala.Cr.App.1979). This principle holds true even if the defendant was intoxicated to the extent that he could have been arrested for intoxication if on a public street. Woods v. State, 54 Ala.App. 591, 310 So.2d 891 (1975). Proof of intoxication amounting to mania or such impairment of the will and mind as to make a person confessing unconscious of the meaning of his words renders the confession made by him inadmissible, but a lesser state of intoxication will not render the confession inadmissible. Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974). The fact that an accused is not in full possession of his mental faculties when the confession is made does not render it inadmissible, but only affects the weight to be accorded by the jury. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Sullivan v. State, 351 So.2d 659 (Ala.Cr. App.), cert. denied, Ex parte Sullivan, 351 So.2d 665 (Ala.1977); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, Ex parte Arnold, 348 So.2d 1097 (Ala.1977); Barnett v. State, 348 So.2d 512 (Ala.Cr.App. 1977). Through the trooper’s testimony, the State offered evidence that the confession was voluntary. As the trial judge did, we have taken into account the defendant’s answers to Trooper Barginear’s questions. Here there is simply insufficient evidence to indicate, as a matter of fact, that the defendant’s reason, intellect or will was so impaired as to render any statement he made involuntary. The admission of the confession was without error.

II

In its case in chief, the State introduced evidence that the defendant had been arrested in 1973 for driving while intoxicated and for reckless driving and that he had also been arrested in 1976 for driving while intoxicated. The circumstances and details surrounding the events which culminated in the two arrests were admitted into evidence. Included in these facts were the results of photoelectric intoximeter tests on the defendant. In the 1973 incident the defendant measured .210; in 1976, .18. There was no indication of any type made before the jury that the defendant was ever convicted of any of these charges. In fact, the defendant was actually convicted of reckless driving in both cases but the fact of his convictions was never presented to the jury. In sum, the prosecution merely introduced evidence of other acts of driving while intoxicated by the defendant. The accident which caused Mrs. Rinehart’s death occurred in April of 1978. The defendant objected to the admission of these prior offenses on the grounds that they were “not relevant in point of time” and because there was no showing that the defendant was represented by counsel.

In McGhee v. State, 333 So.2d 865, 868 (Ala.Cr.App.1976), this Court addressed this same issue. There this Court reversed the conviction because the State introduced pri- or convictions of the defendant for driving while his license was revoked, running stop signs, reckless driving, speeding and improper brakes, which convictions occurred, on the average, approximately ten years before the fatal accident. In reaching this decision this Court noted:

“It seems that under certain circumstances prior conduct on the part of the appellant, including recent criminal convictions for driving while intoxicated, might be probative of the state of mind of the appellant on Christmas Eve 1974 (the night of the fatal accident). If evidence had been introduced tending to show that the appellant habitually drove his car while intoxicated or that he had numerous recent convictions for driving while intoxicated, such evidence would probably be indicative of malice, or a wanton and willful disregard for human life pursuant to the definition stated in Mitchell [v. State, 60 Ala. 26 (1877)] supra.” McGhee, 333 So.2d. at 868.

In order to prove that a homicide committed by an intoxicated driver of an automobile constitutes murder in the second degree, the evidence must show that the accused either intentionally caused the collision or that he was conscious of his acts, conscious of the impending danger surrounding him, and of the probable results, and then with a reckless indifference to the probable consequences of his acts brought about the collision and death of the deceased. Commander v. State, 374 So.2d 910 (Ala.Cr.App.), cert. quashed, 374 So.2d 921 (Ala.1978). In this case we think that the prior incidences of driving while intoxicated by the defendant were admissible and were highly irrelevant to prove the reckless indifference of the defendant to the probable consequences of his acts.

“If the accused is charged with a crime that requires a prerequisite intent, then prior criminal acts are admissible to show that he had the necessary intent when he committed the now-charged crime. This rule is based upon the theory that, because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question the greater the likelihood that the act in question was not done inadvertently.”
C. Gamble, McElroy’s Alabama Evidence, Section 69.01(5)(3rd ed. 1977).

Two other rules from McElroy are also of help to us in reaching our conclusion:

“If the accused’s commission of a prior crime is relevant, otherwise than as tending to prove his bad character, and falls within one of the exceptions to the general exclusionary rule, evidence of his acquittal or conviction thereof does not affect its admissibility.”
McElroy, Section 69.02(2)
* * * * * *
“If the accused’s commission of another crime is admissible in a present prosecution, the state may prove in meticulous detail the manner in which the accused committed such other crime.”

McElroy, Section 69.02(8).

In the 1973 conviction, the defendant had been driving on the shoulders of the road into the oncoming lane of traffic. In the case under review, the defendant was on the wrong side of the road when he crashed into Mrs. Rinehart. In 1976, the defendant plowed his automobile into the rear of another car which was traveling in the same direction. This collision totaled the other automobile and resulted in serious physical injury to the other driver. Both incidents occurred while the defendant was traveling on Highway 43 in Tuscaloosa County. The bridge where this incident occurred is also on Highway 43.

The question of remote evidence was discussed in Smitherman v. State, 33 Ala. App. 316, 318, 33 So.2d 396 (1948).

“Ordinarily, remoteness of time affects the weight and probative value of evidence rather than its admissibility. It rests largely in the enlightened discretion of the court whether or not such proof will be allowed. Remoteness has regard also to factors and considerations other than mere lapse of time. It results therefore that it is practically impossible and not at all accurate to attempt to state a fixed rule or standard with particular reference to the time element. Of course, it can be said with certainty that the tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main fact.”

Remoteness with respect to the admissibility of evidence is a relative idea and varies in its application according to the facts of each ease. Dorch v. State, 40 Ala.App. 475, 115 So.2d 287 (1959). See C. Gamble, McElroy’s Alabama Evidence, Section 21.01(2) (3rd ed. 1977).

Considering the circumstances giving rise to the prior arrests in relation to the particulars of this incident, including the time elements involved, we do not find that the prior incidents were so remote as a matter of law as to render them inadmissible in the defendant’s trial. Under these circumstances, their admission was a matter within the sound discretion of the trial judge which we find has not been abused.

The defendant also maintains that his prior “convictions” were inadmissible because there was no showing that he was represented by counsel. It is clear that to permit a conviction obtained in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), either to support guilt or to enhance punishment for another offense constitutes a denial of due process. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258,19 L.Ed.2d 319 (1967). This Court has held that the use of a prior conviction to enhance punishment in a case without first affirmatively establishing that the defendant was represented by counsel or waived counsel at the time of the prior offense was error. Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975).

Although on appeal both the State and the defendant base their arguments on the assumption that the defendant’s convictions resulting from the two prior incidents were placed in evidence before the jury, a careful reading of the record shows that this was not the case. The transcript before us gives absolutely no indication that the jury was ever informed by any means that the defendant had prior convictions resulting from the 1973 and 1976 accidents. Because the State did not attempt to prove that the defendant had been convicted of any prior offense, there was no need or reason to require proof that he had been represented by counsel.

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

AFFIRMED.

All Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Hugh PALMER. (re: Hugh Palmer v. State of Alabama.)
    80-621.
    Supreme Court of Alabama.
    July 17, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jeffrey Lee HOUSTON v. STATE.
    7 Div. 808.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.

      W. J. Willingham, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is another appeal from a denial of a petition for writ of error coram nobis.

The pro se petition, purportedly in the handwriting of petitioner, was prepared during his imprisonment on a life sentence at a unit of Kilby Correctional Facility, and was verified by him on May 2, 1980. The petition was received and filed in the office of the Clerk of the Circuit Court of Tallade-ga County, the court in which a jury had found defendant-petitioner guilty of robbery and he was sentenced to imprisonment for life on October 24, 1978. On appeal to the Court of Criminal Appeals of the judgment of conviction and sentence, the judgment of the trial court was affirmed without an opinion on March 27, 1979. The appeal was placed on rehearing ex mero motu on August 8, 1979, and application for rehearing was overruled on August 21, 1979.

On June 10, 1980, the State, as respondent to the coram nobis petition, filed a document in which it moved to dismiss the petition, gave its reason therefor, denied each and every allegation in the petition and requested the court to deny the petition. On July 7, 1980, petitioner filed what he captioned a “Traverse To Defendant’s Answer,” in which he alleged:

“(1) Petitioner was at no time guilty of the charges of murder or Robbery with which he was charged. Petitioner felt that, at most, he could have been charged as an accessory after the fact which is not of the same gravity as first degree murder or first degree Robbery.
“(2) It must be reemphasized that counsel for petitioner has not done an adequate job. My attorney interviewed me twice before the trial. At no time did our discussions proceed beyond 15 minutes. Frankly, he showed very little interest in my case.
“(3) Petitioner sought a preliminary hearing to iron out all the difficulties presented in his case. One was not given even though the case had several parties and was of a complex nature. This severely violated petitioner’s Constitutional Rights since due process was not observed.
“Petitioner also stands upon the original motion filed upon his behalf.”

On October 17,1980, the court entered an order appointing counsel to represent petitioner, who well did so on the hearing and has continued to do so on appeal. In the same order, the court set the proceeding for a hearing on October 29,1980, and appropriate arrangements were made for the petitioner’s attendance at the hearing.

In the petition for writ of error coram nobis, there was language that perhaps permitted an inference that petitioner was claiming that he had entered a plea of guilty that “was not voluntary but a product of ineffective assistance of counsel,” but it was made clear on the hearing by the testimony of petitioner that there was never any guilty plea in the case, and that the case was tried throughout solely on the issue raised by defendant’s plea of not guilty.

On the hearing, petitioner was his only witness. His attorney on the trial of the robbery case and Captain Paul Locke of the Talladega Police Department testified on call of the State.

In denying the coram nobis petition, the court rendered a written judgment containing findings as follows:

“The major contentions of the Petitioner are that he was denied a preliminary hearing and that he had ineffective and incompetent counsel.
“In regard to the first contention, the Court finds that there was absolutely no evidence that the Defendant nor anyone in his behalf ever demanded a preliminary hearing prior to indictment of the Defendant for Robbery by the June, 1978, Grand Jury and that no such demand was made. The evidence was clear that the Defendant was arrested in May, 1978, and indicted the next month. The Court also finds that after indictment the Defendant is not entitled to a preliminary hearing.
“Defendant next complains that he had ineffective or incompetent counsel. Counsel for the Defendant was retained by the Defendant’s mother. It could hardly be said that the retained attorney, James A. Mitchell, did not pursue the defense of the Defendant diligently. On the 21st day of September, 1978, he filed a Motion to Suppress Written or Oral Statements Allegedly Made by the Defendant and on the 16th day of October, 1978, he filed a Motion for Production of Exculpatory Materials in the Possession of the Government. James A. Mitchell testified at the hearing for Post Conviction relief that he conferred with his client on three separate occasions in the Talladega County Jail and that he conferred with the Defendant and his family in the Court conference room on the 11th day of August, 1978, when a plea of not guilty was entered and again in court on several other occasions prior to trial. The Court finds that the Defendant had the effective assistance of competent counsel.”

Two of the issues presented by appellant relate to the admission in evidence on the trial of the robbery case, over the purported objection of defendant, of a statement made by defendant after he was arrested at his home. It appears that the statement was probably the same statement which the defendant sought to suppress by his motion to suppress to which reference is made in the judgment of the trial court in the instant proceeding. Although we have access to, and can take judicial knowledge, of the record and transcript on appeal in the robbery case, neither party has suggested that we do so, as both parties did in the trial court as follows:

“Q. Your Honor, I would like to introduce Page 164 of the transcript, this will be page 164 and 165, this would be the portion of the trial that Mr. Houston is referring to.
“MR. JULIAN KING: We would just ask the Judge to take judicial knowledge of the transcript and all the charges, if that is all right with Mr. Willingham and the Judge.
“MR. WILLINGHAM: That will be fine.
“MR. KING: It is the Court’s record.” Another insistence of appellant is:
“The evidence showed the trial Court charged the jury that Appellant was guilty. (R. 47)”

The cited page, (R. 47) of the transcript herein, contains a purported paraphrase in the testimony of the petitioner of what he purportedly remembered as being a part of the court’s oral charge to the jury, which in his testimony petitioner said:

“And the effect of his statement was to tell the jury that your petitioner was guilty.”

The innuendoes and conclusion of the witness are not supported by the record or the transcript of the proceedings now before us.

Another proposition advanced by appellant is to the effect that the trial court failed to charge, but should have charged, the jury as to a lesser included offense of the crime of robbery. Here, again, is an absence of any evidence or showing, other than contentions, to support appellant’s insistence. We would not be justified in concluding from the record and transcript in the instant case that an instruction on the lesser included offense would have been justified by the evidence in the robbery case or that the defendant therein ever requested in writing such an instruction.

In the fifth (V) contention of appellant, appellant asserts that trial counsel for appellant in the murder case also represented a codefendant and that such fact “created a conflict of interest and the Appellant was therefore denied his 6th Amendment right to counsel.” The facts disclosed by the evidence in the coram nobis proceeding are that the attorney who represented defendant in the robbery case was employed to do so by defendant’s mother, or his mother and father, and that she or they also employed the same attorney to represent their son, the defendant’s brother, Dennis Houston, who was also charged with the same robbery, in which others were also codefendants. It is to be noted that no contention is made that the representation by the employed attorney of the two brothers as codefendants constituted “an actual conflict of interest” that “adversely affected” the performance of the attorney to the potential or actual injury of petitioner. In the absence of such a contention or situation, we find that no violation of the Sixth Amendment rights resulted from the dual representation.

“The Court of Appeals granted Sullivan relief because he had shown that the multiple representation in this case involved a possible conflict of interest. We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance. . . . ” Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 348 (1980).

The only other issues presented by appellant were disposed of adversely to him in the quoted judgment of the trial court, with which we agree. Its judgment 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:
    Paul Edward DALY v. STATE.
    8 Div. 454.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.
    Danny H. Henderson of Henderson & Grace, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted and tried for murder. A jury found him guilty of manslaughter. The court fixed punishment at imprisonment for ten years, the minimum punishment for manslaughter, in accordance with the criminal code, Code of Ala. 1975, Tit. 13A, effective January 1, 1980.

The indictment charged in material and pertinent part that defendant “did intentionally cause the death of another person, Charles Paul Hart, by shooting him with a pistol, in violation of § 13A-6-2 of the Code of Alabama.” Code § 13A-6-2(a)(l) states as one of the three essential hypotheses of murder:

“A person commits the crime of murder if:
“With intent to cause the death of another person, he causes the death of that person or of another person; or

The undisputed evidence, which included testimony of the defendant, showed that the alleged victim was killed by a bullet from defendant’s pistol that was in defendant’s hand at the time with a middle finger on the trigger. The victim and defendant were facing each other, and the bullet penetrated the front of the head of the victim. The incident occurred in the parking lot of Cher’s Lounge on the night of February 22, 1980. Defendant was a customer of the lounge and had drunk some beer. The victim had been in the lounge as a customer but had had an altercation with, and had been ousted by, the doorman, also referred to in the evidence as “a bouncer.”

Defendant’s testimony was to the effect that the victim was approaching him, threatening to whip him and cut his head off, that he became scared, stumbled, lost his balance and fired. He then became panicky, left hurriedly in his truck, went to Tennessee and returned about three days thereafter. He then surrendered to the authorities.

The case was submitted to the jury as to the express charge of murder, the crime of manslaughter and the crime of criminally negligent homicide, which, according to § 13A-6-1 through § 13A-6-4 of the Criminal Code, now constitute three kinds of unlawful homicide, replacing the theretofore existing crimes of murder in the first degree, murder in the second degree, manslaughter in the first degree and manslaughter in the second degree.

The only contention of appellant is that “Alabama Code § 13A-2 — 2(3) is violative of the due process clauses of the Constitution of the United States and of the Constitution of Alabama because it is vague and uncertain as to its meaning.” Code § 13A-2-2(3) provides:

“The following definitions apply to this Criminal Code:
“(1) INTENTIONALLY. . . .
“(2) KNOWINGLY....
“(3) RECKLESSLY. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standards of conduct that a reasonable person would observe in the situation. A person who creates the risk but is unaware thereof solely by reason of voluntary intoxication, as defined in subdivision (e)(2) of section 13A-3-2, acts recklessly with respect thereto.
“(4) CRIMINAL NEGLIGENCE.

In its oral charge, the court included plenary instructions as to murder, manslaughter and criminally negligent homicide and made it clear to the jury that it was for the jury to decide the guilt or innocence of the defendant and if he was guilty whether he was guilty of any one of the three kinds of unlawful homicide. In charging upon the subject of manslaughter, the court quoted almost exactly the language of Section 13A-2-2(3), the only exception being that it omitted the phrase “as defined in subdivision (e)(2) of section 13A-3-2” of the last sentence thereof. Furthermore, the court did not instruct the jury as to the definition of voluntary intoxication that is found in subdivision (e)(2) of § 13A-3-2. However, no point seems to be made by appellant to the effect that the trial court should have instructed the jury as to such definition of voluntary intoxication.

We understand that the major thrust of appellant’s contention is to the effect that by applying § 13A-2-2(3) to manslaughter, the defendant was deprived of what might otherwise have been a benefit, in the view of the jury, of a finding that defendant was guilty of criminally negligent homicide. There would be considerable force to such contention if the section defining criminally negligent homicide, § 13A-6 — 4, had not been amended prior to its effective date, and prior to the commission of the alleged crime, by expunging therefrom one of the two kinds of criminally negligent homicide therein defined:

“(a) A person commits the crime of criminally negligent homicide if:
“(1) ...;
“(2) He intentionally or recklessly causes the death of another person in the good faith but unreasonable belief that one or more grounds for justification exists under Article 2 of Chapter 3 of this Title.

As thus amended, § 13A-6 — 4 sets forth only one kind of criminally negligent homicide. It states simply, “A person commits the crime of criminally negligent homicide if he causes the death of another person by criminal negligence.” We do not fail to see some uncertainty and confusion arising from the change in the language of the statutory law pertaining to unlawful homicide, notwithstanding the efforts made to prevent it in the process of adoption and effectuation of the new criminal code, but we fail to see any unconstitutionality in § 13A-2-2(3) now under attack. To some extent appellant is supported in his contention as to the ambiguity and vagueness of the statutory law on the subject by the fact that the jury asked to be, and were, rein-structed thereon three times by the court.

We are persuaded that the jury was not caused by the language of § 13A-2-2(3), as stated by the court to the jury, to render a verdict that defendant was guilty of manslaughter nor influenced thereby not to render a verdict that he was guilty of criminally negligent homicide.

Aside from any question as to whether the question of the constitutionality of § 13A-2-2 has been properly raised and as to whether it could be so applied in some cases as to adversely affect the constitutionality or validity of a defendant’s conviction, we conclude that appellant’s contention is not well taken, that he has not been deprived of any constitutional right as claimed and that he has not been harmed by § 13A-2-2 or by the court’s instruction based thereon.

Appellant’s argument in support of his contention as to the ambiguity and vagueness of § 13A — 2-2 is consistent with the view expressed by his counsel in one of the two exceptions taken to the court’s oral charge at the conclusion thereof and just before the case was first submitted to the jury for its consideration. The exception was:

“MR. MORRIS: Yes, sir. We except to two aspects of the Court’s Oral Charge. First, the Court instructed the Jury that if an act was done under intoxication that it was a reckless act. That would be misleading and not consistent with the charge that he gave as a definition of reckless.”

Notwithstanding the obvious sincerity of counsel both on the trial and here as to what they understood the court to say and as to what they understood to be the implication of what the court said, we do not find that the court in any of its charge to the jury ever said “that if an act was done under intoxication that it was a reckless act.”

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

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

AFFIRMED.

All the Judges concur.


text:
    Oscar Peter HOBBS and Elijah Pickett v. STATE.
    1 Div. 185.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.

      Floyd C. Enfinger, Jr., of Lacey & En-finger, Fairhope, for appellant Hobbs.
    Mary E. Murchison of Murchison & Thomas, Foley, for appellant Pickett.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellants Oscar Peter Hobbs and Elijah Pickett were indicted in separate indictments by the Grand Jury of Baldwin County in July of 1980 for rape in the first degree. By agreement of the State and the defendants, the two were tried jointly in the Circuit Court of Baldwin County. The jury returned a verdict of guilty as to both defendants and both were sentenced to life imprisonment.

The jury returned separate verdicts as to each defendant and there was a separate judgment entry in each of the cases based upon the verdicts of the jury. This was proper. Ala.Dig.Crim.Law, Key No. 983.

Appellants contend that the trial court committed error in allowing the in-court identification of them by the prosecutrix after she had viewed them in a “showup” at the alleged scene of the crime just hours after the rape occurred.

On June 29,1980, the prosecutrix and her fiance left Mobile, Alabama, where the prosecutrix lived, and went to the beach for the day in Gulf Shores, Alabama. They arrived in Gulf Shores at approximately twelve noon that day and remained on the beach until four or five p. m., then went to the Florabama Lounge. After drinking five or six beers the prosecutrix and her fiance left Gulf Shores at approximately six p. m. heading back to Mobile. The prosecu-trix testified that, shortly after they left Gulf Shores, she fell asleep because she had worked a twelve hour shift the night before and became sleepy after drinking the beer. Her fiance continued to drive toward Mobile until he got to Daphne, Alabama, where he pulled off the road on Highway 98 and also went to sleep.

The prosecutrix testified that, when she woke up, she was in the back seat of another automobile and a man was attempting to rape her. She testified that, although she resisted and scratched the man, he was successful in raping her. There were two other men in the automobile. They drove the automobile to a deserted area near the beach in Daphne where the prosecutrix was raped by another man and was made to perform oral sex.

This ordeal lasted for one to two hours. The prosecutrix testified that, although the lighting was not very good, she was able to see them because of the closeness of the men and the length of time involved.

Following the rapes, the prosecutrix was thrown into the bushes and the men who raped her left. She made her way to the highway where she was picked up and taken to the Daphne Police Station. Upon arrival the prosecutrix told the police that one of the men that raped her had a beard and that they were in a light blue Cadillac. No other description was given. She told them the approximate location of where the rapes took place. The man who took her to the police station also told the police that he found the prosecutrix near the road to Paradise Beach off Highway 98 in Baldwin County. The Daphne police drove down to Paradise Beach where they found two men beside a light blue Cadillac. The prosecu-trix’s towel was in the back seat of the Cadillac. The prosecutrix was brought to the scene to view the two men. With appellants standing two to three yards from the prosecutrix who was still in the back seat of the police car, a light was shined on the appellants and the prosecutrix identified them as the men who raped her. She said that she was “one hundred percent” (100%) sure about the one with the beard but not as sure about the other one. This took place approximately one and one-half (lVfe) hours after the rape.

At the trial the prosecutrix made an in-court identification of both appellants over counsel’s objection. Appellants both claim that the trial court committed error by allowing the in-court identification because the prior showup identification was imper-missively suggestive.

Whether a procedure used for an identification is so impermissively suggestive as to create a substantial likelihood of irreparable misidentification and violates due process depends on the totality of the circumstances. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

A showup is not inherently unfair, and it is settled law that prompt, on-the-scene confrontations are not constitutionally impermissible, but are consistent with good police work. Donahoo v. State, Ala.Cr.App., 371 So.2d 68; Robinson v. State, 55 Ala.App. 658, 318 So.2d 354; Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623. A showup by its inherent nature is, however, suggestive. Brazell v. State, Ala.Cr.App., 369 So.2d 25, cert. denied, 369 So.2d 31 (Ala.1979); Weatherford v. State, Ala.Cr.App., 369 So.2d 863, cert. denied, 369 So.2d 873 (Ala.1979).

Once a determination has been made that an identification procedure is suggestive, it must be determined whether the identification was reliable even though the prior confrontation was suggestive. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. The totality of the circumstances must be considered in assessing the reliability of the identification. Factors to be considered in assessing the reliability of an identification were set out by the United States Supreme Court in Neil v. Biggers, supra. These factors, which include the opportunity of the witness to view the criminal act at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation, must be weighed against the suggestiveness of the identification. Neil v. Biggers, supra; Robinson v. State, 45 Ala.App. 236, 228 So.2d 850.

In the case at bar the prosecutrix viewed the appellants at close range for a period of one to two hours. The prosecutrix testified that there was sufficient light to view both appellants during the rape as they were “right in my face.”

The prosecutrix did not give a description of her attackers at the Daphne Police Station except to say that one had a beard and that they were in a blue Cadillac. However, within a short period of time after the prosecutrix came to the Daphne Police Station the appellants were found at the scene of the rape and the prosecutrix was taken there to view them.

When the prosecutrix viewed them, appellants were standing beside a blue Cadillac which contained the prosecutrix’s towel. Testimony of the prosecutrix indicates that this confrontation took place approximately one and one-half hours after the rape.

At the confrontation the prosecutrix identified one of the appellants as “one hundred percent” (100%) sure. The statement as to the other one was that “... I can’t be for sure ...” While the degree of certainty of one of the appellants is less than one hundred percent (100%), it is not necessary that an identification be given with absolute certainty before allowing an in-court identification.

These factors must be weighed against the effect of the suggestive confrontation to determine the reliability of the identification. Reliability is the linchpin of the admissibility of identification testimony. Stovall v. Denno, supra.

Although a showup is inherently suggestive, it is also considered to be consistent with good police work when done promptly after the commission of the crime. Donahoo v. State, Ala.Cr.App., 371 So.2d 68; Robinson v. State, 55 Ala.App. 658, 318 So.2d 354; Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623. In the case at bar the confrontation took place at the scene of the crime within approximately one and one-half hours after the crime. Two hours or less has been held to be an acceptable period of time between the crime and the confrontation. Donahoo v. State, supra.

Judge Burger, now Chief Justice of the Supreme Court of the United States, in Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, stated:

“There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy.
“[T]he police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh . . . . ”

Although the use of the showup is a suggestive identification procedure, it can also be a procedure which tends to enhance the reliability of the identification. Bates v. United States, supra; Carter v. State, Ala.Cr.App., 340 So.2d 94.

All of the factors considered and weighed against the effect of the suggestiveness of the confrontation would indicate that the in-court identification was reliable and there was not a substantial likelihood of irreparable misidentification.

Appellants also claim that error was committed in allowing the testimony by the prosecutrix of the out-of-court identification. The record indicates the following testimony concerning the confrontation:

“A. The police said to sit in the car and they were going to shine some lights on a couple of guys and they asked me if I could identify them.
“Q. And what did you say?
“A. I said that I can’t be for sure but the only one that I can identify is the guy with the beard for a hundred percent sure then and there.
“Q. Were you upset at that time?
“A. Yes.
“Q. I will ask you again, after looking at these two Defendants, are you absolutely sure—
“MR. BOLTON: Your Honor — go ahead.
“MR. WHETSTONE: Are you absolutely sure these are the two Defendants that participated in the rape?
“A. Yes.
“MR. BOLTON: I object to this. This is repetitive to go back through the whole thing.”

As can be seen from the record the question was “[A]re you absolutely sure these are the two Defendants that participated in the rape?” The only objection came after the answer to the question. Where a question is answered before an objection is made, the objection comes too late and the court’s ruling will not be declared in error without a motion to exclude and an adverse ruling. Burlison v. State, Ala.Cr.App., 369 So.2d 844, cert. denied 369 So.2d 854 (Ala.1979). Also, the objection made was that the question was repetitive. Objections to the admission of evidence are unavailing unless the appropriate grounds are stated. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974); Stringer v. State, Ala.Cr.App., 372 So.2d 378, cert. denied, 372 So.2d 384 (Ala.1979).

During the trial an unsigned confession by appellant Hobbs and a signed confession by appellant Pickett were admitted into evidence over the objection of both appellants. Appellant Hobbs contends on appeal that the unsigned confession was transcribed in an unreliable manner and should not have been admitted into evidence.

Appellant Pickett, although his confession was signed, also claims that his confession was transcribed in an unreliable manner and should not have been admitted into evidence. Appellant Pickett further claims that the state failed to show that his statement was given voluntarily and that he knowingly and intelligently waived his constitutional rights.

Appellant Pickett’s claim that his confession was not voluntarily made and that he did not knowingly and intelligently waive his rights against self-incrimination is based on the questioning of appellant Pickett at the Baldwin County Jail in Deputy Rizzo’s office at approximately four p. m. on June 30, 1980. Chief Investigator Stewart was present along with Deputy Rizzo at the questioning. Investigator Stewart and Deputy Rizzo testified on voir dire and later before the jury that appellant Pickett was given his Miranda rights prior to being questioned. They also testified that appellant Pickett made a statement free from threat, coercion, or offer of reward or hope of reward.

Appellant Pickett took the stand and testified on voir dire and then later before the jury that during the questioning he was slapped and kicked and was not allowed to call an attorney. He also testified that he never made a statement but was asked to sign one, and he refused. He then testified that he was taken to the “dark room” where photographs were processed and choked with a chain until he signed the statement. He, however, later testified that the signature on the statement was a forgery. He also claims he was never apprised of his constitutional rights. No offer of evidence was ever made by appellant Pickett that he was ever seen by anyone in a cut, bruised or battered condition.

Chief Investigator Stewart and Deputy Rizzo both testified on voir dire and later before the jury that appellant Pickett’s statement was reduced to writing by Officer Rizzo and was signed by appellant Pickett. Both Investigator Stewart and Deputy Rizzo’s testimony is in direct conflict with that of appellant Pickett. Where the evidence on the circumstances surrounding a confession is conflicting on voir dire, the trial judge must decide on its admissibility. If the confession is admitted, controverted testimony for the accused goes to the jury on its credibility. Godfrey v. State, Ala.Cr.App., 333 So.2d 182; McBryar v. State, Ala.Cr.App., 368 So.2d 568, 573 cert. denied, 368 So.2d 575 (Ala.1979). The trial court in this case heard the testimony of two witnesses that appellant Pickett was fully apprised of his constitutional rights and that appellant Pickett’s confession was made and signed free of threats, coercion or offer of reward. The trial court made its decision after hearing the conflicting testimony and allowed the confession to go to the jury. Defense counsel was allowed to cross-examine and present evidence before the jury in an attempt to persuade the jury that the confessions were not voluntary. The trial court had sufficient evidence to support its ruling and its decision will not be overturned on appeal. Carter v. State, 53 Ala.App. 43, 297 So.2d 175.

Appellant Pickett also contends that he did not waive his constitutional rights because he is “semi-illiterate” and a “slow learner” and was unable to voluntarily and intelligently waive his rights. The only evidence of appellant Pickett’s illiteracy or low mentality was testimony by him and his mother that, although he had gone to the twelfth (12th) grade in a “special school,” he could only read on a fifth or sixth grade level. Appellant Pickett admitted he could read and write. No evidence was presented that appellant Pickett was illiterate or mentally incompetent. While an accused’s intelligence and literacy are important factors to be considered in determining whether he intelligently and voluntarily waived his constitutional rights and made a confession, weak intellect or illiteracy alone will not render a confession inadmissible. Elrod v. State, 281 Ala. 331, 202 So.2d 539; Twymon v. State, Ala.Cr.App., 358 So.2d 1072; Arnold v. State, Ala.Cr. App., 348 So.2d 1092. It is for the trial court to determine whether appellant Pickett’s level of literacy and intellect rendered the confession inadmissible and its decision will not be disturbed unless there is abuse of discretion. Elrod v. State, supra. Under the circumstances the trial court did not abuse its discretion in deciding that appellant Pickett voluntarily waived his constitutional rights.

Both appellants contend that it was improper to allow the confessions into evidence because they were transcribed in an unreliable manner. Deputy Rizzo transcribed the statements given by each of the defendants. Both of these confessory statements were admitted into evidence over the appellant’s objection. After the transcription appellant Pickett signed the statement. Appellant Hobbs refused.

The fact that appellant Hobbs did not sign the statement does not render it inadmissible. “The law does not require that a confessory statement be signed by the defendant.” McBryar v. State, supra, cert. denied, 368 So.2d 575 (Ala.1979).

Deputy Rizzo testified as to the statement given by Hobbs that the written transcription did not contain everything said in the office but it did contain a transcription of everything that pertained to the rape. It is not required that a written confession or statement contain the entire confession or the entire conversation between the accused and the person to whom the confession was made. King v. State, Ala.Cr.App., 355 So.2d 1148, 1151. The testimony of Deputy Rizzo that the statement contained everything that pertained to the rape is sufficient to make the unsigned written transcription of appellant Hobbs’ confessory statement admissible.

Appellant Pickett signed the transcription of his confessory statement made to Deputy Rizzo. A confession is not inadmissible because it is not transcribed verbatim as related by the defendant if the transcription is substantially as related and affirmed by the prisoner as correct. Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961); Price v. State, 52 Ala. App. 21, 288 So.2d 803 (1974). Additionally, Chief Investigator Stewart testified that the written transcription of appellant Pickett’s confessory statement was an accurate transcription of the statement as related by appellant Pickett to Deputy Rizzo and himself.

State’s Exhibit 1:

“VOLUNTARY STATEMENT
“DATE June 30. 80 PLACE County Jail TIME STARTED 4:46 P.M,
“I, the undersigned, Oscar Hobbs, am 21 (sic) years of age, having been born on 4-4-58. at Daphne. I now live at Daphne. Alabama.
“I have been duly warned and advised by Joe Rizzo, a person who has identified himself as Deputy Sheriff, that I do not have to make any statement at all, nor answer any questions or do anything that might tend to go against me or incriminate me in any manner, and that any statement I make, can and will be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made. I was also warned and advised of my right to the advice and presence of a lawyer of my own choice before or at any time during my questioning or statement I make, and if I am not able to hire a lawyer I may request and have a lawyer appointed for me, by the proper authority, without cost or charge to me.
“I do not want to talk to a lawyer, and I hereby knowingly and purposely waive my right to the advice and presence of a lawyer before and during any questioning or at any time before or while I voluntarily make the following statement to the aforesaid person, knowing that anything I say can and will be used against me in a court or courts of law.
“I declare that the following voluntary statement is made to the aforesaid person of my own free will without promise of hope or reward, without fear or threat of physical harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever.
“Townser stopped me and told me about this white girl in a small car parked on the highway.
“Me and Padgett thought we would rob them so I drove down there and got the girl out.
“The dude never woke up so we forced her in the back seat and I drove to Paradise Beach while Eddie Padgett raped her.
“When we got to the beach I raped her.
“I guess we got mad because she wouldn’t do as we wanted her to do so we punched and kicked her before throwing her in the bushes.
“About two or two and a half hours later we went back down there to do it again and that’s when the police caught us.
“I have read each page of this statement consisting of 1 page, each page of which bears my signature, and corrections, if any, bear my initials, and I certify that the facts, contained herein are true and correct. I further certify that I made no request for the advice or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement.
“This statement was completed at 5:12 p. m. on the 30 day of June. 1980.
“WITNESS: /s/ Robert F. Stewart
“WITNESS: /s/ Joe Rizzo
Signature of person giving voluntary statement”
State’s Exhibit 2:
“VOLUNTARY STATEMENT
“DATE June 30. 1980 PLACE County Jail TIME STARTED 4:00 P.M.
“I, the undersigned, Elijah Pickett, am 21 years of age, having been born on 2-1-59. at Mobile. Alabama. I now live at Daphne.
“I have been duly warned and advised by Joe Rizzo, a person who has identified himself as Deputy Sheriff, that I do not have to make any statement at all, nor answer any questions or do anything that might tend to go against me or incriminate me in any manner, and that any statement I make, can and will be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made. I was also warned and advised of my right to the advice and presence of a lawyer of my own choice before or at any time during my questioning or statement I make, and if I am not able to hire a lawyer I may request and have a lawyer appointed for me, by the proper authority, without cost or charge to me.
“I do not want to talk to a lawyer, and I hereby knowingly and purposely waive my right to the advice and presence of a lawyer before and during any questioning or at any time before or while I voluntarily make the following statement to the aforesaid person, knowing that anything I say can and will be used against me in a court or courts of law.
“I declare that the following statement is made to the aforesaid person of my own free will without promise of hope or reward, without fear or threat of physical harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever.
“I was hitchhiking when I came up on a small car with 2 people in it. The girl had her legs hanging out of the window. Both were passed out.
“I then got up with Oscar Hobbs and another dude and we went back to the car and took the girl out. We put her in Oscar’s Cad. and drove down to the beach. They raped her first and then I raped her.
“They beat on her for a while and left her laying on the beach.
“We came back later about 2 hours and that’s when the police caught us.
“I have read each page of this statement consisting of 1 page, each page of which bears my signature, and corrections, if any, bear my initials, and I certify that the facts contained herein are true and correct. I further certify that I made no request for the advice or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement.

“This statement was completed at 4:30 p. m. on the 30 day of June. 1980.

“WITNESS: /s/ Joe Rizzo

“WITNESS: /s/ Robert F. Stewart

/s/ Elijah Pickett

Signature of person giving voluntary statement”

Lastly, appellant Pickett contends that it was error for the trial court to refuse written jury charges numbered 9, 10, 12, 23, 27 and 30. Appellant Hobbs contends that it was error for the trial court to refuse charges numbered 19, 20 and 24.

Charges numbered 9, 10 and 23 were not hypothesized upon the evidence and were properly refused. Locklear v. Nash, 275 Ala. 95, 152 So.2d 421 (1963). Jury charge number 12 was properly refused as an incorrect statement of applicable legal principles. Kuczenska v. State, Ala.Cr.App., 378 So.2d 1182, certiorari denied, 378 So.2d 1186 (Ala.1979). Charges numbered 19, 20 and 30 were properly refused because they were confusing and argumentative. McDonald v. State, 165 Ala. 85, 51 So.2d 629; Lowe v. State, 54 Ala.App. 280, 307 So.2d 86 (1975).

Charges numbered 24 and 27 address the admissibility of a confession without independent proof of the corpus delicti, and charge 27 contained a misspelled word. The admissibility of a confession is addressed by the trial judge only while the credibility and weight to be given a confession are for the jury.

We have carefully searched the record for errors affecting the substantial rights of appellants and have found none. The judgment of conviction in each of these cases is affirmed.

AFFIRMED.

All the Judges concur.