text:
    Ronald PEOPLES v. STATE.
    5 Div. 652.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.

      Henry Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was a correctional counsel- or employed at Draper Correctional Institution in Elmore County. He was involved in the theft of meat from the prison central warehouse and was indicted and convicted for theft of property in the second degree. His sentence of five years’ imprisonment was suspended and he was placed on probation. Three issues are presented on this appeal.

I

The defendant’s constitutional rights to a fair and impartial trial were not violated when the State called a “surprise” witness after the jury had been questioned on voir dire.

The voir dire and qualification of the jury are not in the record. At trial, when the State called Roy Robinson to the witness stand, defense counsel objected.

“MR. SEAY: My problem, Your Honor, is in qualifying the jury in this case, we asked the Court to make the determination as to whether or not any juror was related by blood or marriage to any witness for the State.
We, also, asked the Court to inquire as to whether or not any juror was acquainted with any of the witnesses for the State.”
“The State named some witnesses and said, ‘This is it. These are the witnesses that we are going to call at this trial. Qualify your jurors with respect to these witnesses.’ We did that.”
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“Well, this is just being dirty pool, Your Honor. It deprives us of the right to fairly assess the persons that we would select to sit on the jury.”

Defense counsel requested that the witness not be permitted to testify. No request was ever made that the trial judge question the jury to determine if any juror had any association or relationship with the witness.

In response, the District Attorney stated that he “had no knowledge of this witness at the time the case was called for trial.”

The trial judge found, and apparently defense counsel agreed, that the witness was not related to any juror by blood or marriage.

“THE COURT: Mr. Seay, I believe, in looking at the jurors that there is no indication that he would be related by blood or marriage to any of the jurors. “MR. SEAY: I’ll buy that, Your Honor.”

The judge also found that when the veniremen were questioned the State’s witnesses had not been identified.

“THE COURT: ... I do not believe that there was any demand- — I see where the question was asked on your voir-dire, ‘If you are related by blood or marriage to any’ of the State’s witnesses, but I do not see any demand having been made as to what witnesses the State was going to use.
“MR. SEAY: Your Honor, I asked, ‘Are you acquainted with any of the witnesses for the State?’
“THE COURT: I know that you did, but I don’t see where you made any demands for any of the witnesses for the State. And at that time, the jury did not know who all were witnesses — ”
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“The way to determine was if the State witnesses were called by name.”

A defendant has no constitutional or statutory right to compel the pretrial discovery of the State’s witnesses. Casey v. State, 401 So.2d 330, 333 (Ala. Cr. App. 1981); Dolvin v. State, 51 Ala.App. 540, 543, 287 So.2d 250 (1973); Thigpen v. State, 49 Ala. App. 233, 239-40, 270 So.2d 666 (1972).

Because the defendant had no right to discover the identity of the State’s witness prior to trial and apparently did not file any discovery motion, we find no error in the action of the trial judge in allowing witness Robinson to testify.

II

A review of the facts shows that the testimony of the two accomplices was corroborated as required by Alabama Code 1975, Section 12-21-222.

Calvin Stewart, Jr. was employed as a truck driver by the Alabama Rendering Company of Montgomery. On May 23, 1980, he drove his truck to the prison central warehouse to remove meat scraps of animals remaining after slaughtering and butchering. Stewart testified that the defendant “was supposed to see that it (the scraps and remains) was being loaded.” The defendant told Stewart, “There’s something on the truck.” He also told Stewart to place the meat in an outhouse behind a church located in Elmore County.

Ninety pounds of hamburger meat and ninety pounds of pork roast were loaded on Stewart’s truck. This meat was packaged and labeled “for prison use only.” Stewart drove his truck to the church and placed fifteen pounds of hamburger meat and fifteen pounds of pork in the outhouse. He left “a couple of pieces” on the back of his truck for himself.

Roy Robinson was an inmate at the Elba Work Release Center who was assigned to the central warehouse. The defendant was his supervisor. He testified that “several times” he loaded “good meat” on the rendering truck for the defendant. On May 23, 1980, he placed some good meat in a metal barrel and loaded it on the truck. Robinson testified that the defendant paid him $15.00.

Warden James C. Cook of Draper Correctional Facility testified that in May of 1980 he had reason to suspect that some of the meat for the prisoners was disappearing. He started an investigation and on May 23rd followed Stewart’s truck. At approximately 1:00 on the afternoon of May 23rd, Cook and Ronald Sutton, the warden of Staton Prison followed Stewart to the church where they discovered the meat in the truck and in the outhouse. Stewart was arrested and taken to the county jail.

Cook and Sutton left the meat inside the outhouse. At approximately 4:30 that afternoon the defendant drove his car behind the church where Cook and Sutton were waiting.

The defendant was given his “rights” and asked “what he was doing there.” The defendant replied that he had “nothing to say.” After the defendant was told that he could leave, he said that he had to use the rest room. Cook testified: “After we talked to Mr. Peoples and told him that he could leave, he didn’t leave. He hung around. He said two or three times and pointed to the outhouse, T think I need to go to the rest room.’ ” Cook stated that the defendant “mentioned” something about the oil light in his car. Sutton heard the defendant “say something about he had to get some oil in his automobile.”

We have covered the legal principles governing the corroboration of accomplices in other cases and need not restate them here. McCoy v. State, 397 So.2d 577 (Ala. Cr. App.), cert. denied, Ex parte State ex rel. Attorney General, 397 So.2d 589 (Ala. 1981); Andrews v. State, 370 So.2d 320 (Ala. Cr. App.), cert. denied, Ex parte Andrews, 370 So.2d 323 (1979); Jacks v. State, 364 So.2d 397 (Ala. Cr. App.), cert. denied, 364 So.2d 406 (Ala. 1978); Kimmons v. State, 343 So.2d 542 (Ala. Cr. App. 1977).

Because Stewart and Robinson admitted their knowledge of and participation in the theft, they are accomplices as a matter of law and their testimony must be corroborated. Jacks, 364 So.2d at 403.

The evidence necessary to corroborate an accomplice need not be, in itself, sufficient to warrant a conviction. Lumpkin v. State, 68 Ala. 56 (1880). The corroboration need only be of some fact tending to prove the defendant’s guilt or tending to connect him with the crime. Senn v. State, 344 So.2d 192 (Ala. 1977); Slayton v. State, 234 Ala. 9, 173 So. 645 (1937). We treated the sufficiency of corroborative evidence in Staton v. State, 397 So.2d 227, 231-32 (Ala. Cr. App.), cert. denied, 397 So.2d 232 (Ala. 1981). Applying the criterion we set forth in Staton, we have no difficulty in finding that the testimony of the two accomplices was sufficiently corroborated by evidence tending to incriminate the defendant.

The corroborating evidence in this case is based on the fact that the defendant was placed in close proximity to the stolen meat shortly after it was stolen. Although this fact, in and of itself, would not be sufficient to corroborate the testimony of an accomplice, the circumstances surrounding the defendant’s presence at the church bolster and strengthen what otherwise might be a rather innocuous fact. The defendant drove his automobile “behind the church. * * * His car come past the corner of the church.” The front of the church was at least 50 yards off the highway. When confronted, the defendant said he had nothing to say although he later attempted to justify his presence by stating that his car needed oil. When told he could go the defendant “hung around” requesting repeatedly to go to the outhouse where Stewart had placed the stolen meat.

The defendant was on land that was not his own, far off the road and behind a church — a suspicious and strange place to be if he really needed oil for his car.

“The entire conduct of the accused may be surveyed for corroborative circumstances and if from them his connection with the offense may be fairly inferred the requirement of the statute is satisfied. 2 Wharton’s Criminal Evidence, Section 746.
“And statements made by the defendant, in connection with other testimony, may afford corroboratory proof sufficient to sustain a conviction. 2 Wharton’s Criminal Evidence, Section 750.
“The suspicious conduct of the accused may furnish sufficient corroboration of the testimony of the accomplice. 22 C.J.S., Criminal Law, Section 812, subsec. d, (3), p. 1404; Newsum v. State, 10 Ala. App. 124, 129, 65 So. 87; Crumbley v. State, 26 Ala.App. 24, 152 So. 55, certiorari denied 228 Ala. 45, 152 So. 57; Slayton v. State, 234 Ala. 1, 173 So. 642.”
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“Under some circumstances proof of proximity and opportunity is held to be sufficient in corroboration of an accomplice. Ross v. State, 74 Ala. 532; Crumbley v. State, 26 Ala.App. 24, 152 So. 55.” Moore v. State, 30 Ala.App. 304, 306-7, 5 So.2d 644 (1941).

The defendant’s “proximity and opportunity to commit the crime” may furnish sufficient corroboration. Jacks, 364 So.2d at 405.

While there is not a large amount of corroborative evidence in this case, the amount present is significant and does incriminate the defendant. “Corroboration need only be slight to suffice.” Ingle v. State, 400 So.2d 938, 940 (Ala. Cr. App. 1981). This was not the case in Boles v. State, 21 Ala.App. 356, 108 So. 350 (1926). There the defendant was charged with manufacturing whiskey and the possession of a still. The only evidence of the defendant’s guilt which could corroborate the testimony of an alleged accomplice was the fact that the defendant was arrested while walking toward the still at a distance of some 50 yards from the still. The court noted: “The defendant did not own or control the land on which the still was found, never went to it, and, so far as the testimony of the officers is concerned, knew nothing about it.” Boles, 21 Ala.App. at 356, 108 So. 350.

Here we have the defendant’s presence which, in and of itself, is suspicious under the facts of this case. In addition, we have the defendant’s suspicious actions and explanation while at the scene.

Eliminating the testimony of the two accomplices, and examining the remaining evidence, we find sufficient incriminating evidence to connect the defendant with the commission of the theft. McCoy, supra. The corroboration of an accomplice may be shown by circumstantial evidence. Craig v. State, 376 So.2d 803 (Ala. Cr. App.), cert. denied, Ex parte Craig, 376 So.2d 807 (Ala. 1979); Andrews, supra; Thompson v. State, 374 So.2d 377 (Ala. Cr. App. 1978), affirmed, 374 So.2d 388 (Ala. 1979).

Ill

It is argued that the State did not prove that the defendant did knowingly obtain or exert unauthorized control over the meat with the intent to deprive the State of the property in violation of Alabama Code 1975, Section 13A-8-4.

In relation to property, “obtains” means “to bring about a transfer or purported transfer of a legally recognized interest in the property, whether to the obtainer or another.” Section 13A-8-1(6)(a) (emphasis added). The phrase “obtains or exerts unauthorized control” is also defined by statute. Section 13A-8-1(7).

“A person is criminally liable for an offense if it is committed by his own behavior or by the behavior of another person for which he is legally accountable.” Section 13A-2-20. “A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: (1) He procures, induces or causes such other person to commit the offense; or (2) he aids or abets such other person in committing the offense.”

Both Robinson and Stewart were acting on the instructions and under the directions of the defendant. Through the testimony of these accomplices the State presented sufficient evidence to authorize the jury to find the defendant guilty beyond a reasonable doubt.

We have answered the questions and issues argued on appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Charlie BIES, Alias Charles Bies v. STATE.
    6 Div. 602.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.

      Ralph I. Knowles, Jr. of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

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

Bies was convicted of robbery in 1977 and sentenced to fifteen years’ imprisonment. This conviction was affirmed by this Court in December of 1977.

In July of 1978, Bies filed, a petition for writ of error coram nobis alleging that he was not “physically or mentally able to stand trial” and that he “received inadequate representation by counsel because of counsel’s failure to insist upon a continuance.” At the evidentiary hearing, Bies testified that the girl who testified against him at his trial was not the one who waited on him when he allegedly robbed the restaurant. After hearing all the evidence the circuit court denied the petition finding that Bies “failed to prove the allegations” of his petition; “was competent to stand trial when his case was tried”; and was provided with “excellent representation” by defense counsel.

After searching the record and the proceedings of the circuit court, this Court affirmed the denial of the petition, without published opinion, in February of 1979.

In July of 1980, Bies filed a petition for writ of habeas corpus alleging that his appointed counsel did not notify him of the February 1979 decision of this Court affirming the circuit court’s denial of his petition for writ of error coram nobis. He also alleged that he was denied assistance of counsel because “at the time of sentence” he was “mentally and physically disturbed” and his lawyer failed to have the case continued, that, apparently, he was tried and convicted by a professional jury and that a witness lied at his trial.

The district attorney filed a motion to dismiss the petition which was heard in February of 1981. The circuit court treated Bies’ petition for writ of habeas corpus as a petition for writ of coram nobis. Horsley v. State, 42 Ala.App. 567, 172 So.2d 56 (1965).

After a hearing on the motion to dismiss at which Bies, who was not present, was represented by counsel, the circuit court denied the petition.

“The Court further finds that the sentencing court shall not be required to entertain a second or successive petition for similar relief on different grounds unless cogent and compelling reasons are shown why the new grounds were not included in the first petition. Waldon v. State, 284 Ala. 608, 227 So.2d 122 (1969). The Court finds that no such cogent and compelling reasons were shown by Petitioner.”

I

The circuit court properly dismissed Bies’ petition for writ of coram nobis. Two of the four grounds alleged therein were substantially the same as those presented in his first coram nobis petition.

Issues adjudicated in a hearing on petition for writ of error coram nobis are considered “quasi res judicata”. Hailey v. State, 45 Ala.App. 264, 229 So.2d 39 (1969); Ex parte Baxter, 42 Ala.App. 544, 171 So.2d 107, cert. denied, 277 Ala. 695, 171 So.2d 108 (1964). Coram nobis once denied does not prevent another petition but only the “rehash” of old claims. Ex parte Davis, 43 Ala.App. 188, 189, 185 So.2d 417 (1965). Repeated applications or petitions resting on allegations which have been previously adjudicated should not be entertained. Hairston v. Alabama, 465 F.2d 675, 680 (5th Cir. 1972); Waldon v. State, 284 Ala. 608, 227 So.2d 122 (1969); McCray v. State, 282 Ala. 315, 211 So.2d 450 (1968). A petition for writ of error coram nobis is properly denied where the matters attempted to be raised were fully reviewed on appeal from the judgment of conviction. Summers v. State, 366 So.2d 336, 340 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979).

Where a petitioner alleges that he was convicted because of the false testimony of a State’s witness, but fails to alleged that the State knowingly used the false testimony, the writ of error coram nobis would not lie. Caldwell v. State, 36 Ala. App. 612, 63 So.2d 384 (1953).

II

Bies’ allegation of a “professional jury” is unintelligible. Allegations of a petition for writ of error coram nobis which are confusing, completely unintelligible and mere naked conclusions of the petitioner are insufficient. Ex parte Ellis, 41 Ala.App. 253, 128 So.2d 108 (1961). A petition for writ of error coram nobis must describe the specific facts on which the petitioner bases the claim that his rights were invaded. Thomas v. State, 274 Ala. 531, 532, 150 So.2d 387 (1963). The petition should make a full disclosure of the facts relied on, not mere conclusions as to the nature and effect of facts. Corley v. State, 397 So.2d 223 (Ala.Cr.App.), cert. denied, Ex parte Corley, 397 So.2d 225 (Ala.1981).

Even assuming that the ground “professional jury” was meritorious, “a mere naked allegation that a constitutional right has been invaded will not suffice to authorize the granting of relief requested in the petition.” Johnson v. Williams, 244 Ala. 391, 394, 13 So.2d 683 (1943).

III

The fourth and final allegation of Bies’ petition is that he had inadequate assistance of counsel at his first coram nobis proceeding because his appointed counsel failed to notify him that this Court had affirmed the circuit court’s denial of his first petition. Bies contends that this prevented any further appeal of the decision of this Court.

This issue is controlled by Wainwright v. Torna, - U.S. -, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982).

“In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), this Court held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court. Respondent does not contest the finding of the District Court that he had no absolute right to appeal his convictions to the Florida Supreme Court. Since respondent had no constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the application timely. The District Court was correct in dismissing the petition.” 102 S.Ct. at 1301.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: BARRON, Judge.

text:
    Darrell Ray GOODRUM v. STATE.
    1 Div. 367.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffrey H. Long, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Goodrum appeals from an order of the District Court of Mobile County revoking his probation. Direct appeal from a District Court to this court is permitted pursuant to Alabama Code § 12-12-72 (1975), provided certain conditions are met. Section 12-12-72 reads as follows:

“Appeals shall be directly to the appropriate appellate court if: (1) An adequate record or stipulation of the facts is available and the right to a jury trial is waived by all parties entitled thereto; or
(2) The parties stipulate that only questions of law are involved and the district court certifies the questions.”

An adequate record of the proceedings below has been presented on this appeal and the appellant is not entitled to a jury trial to decide whether his probation should be revoked. The conditions of Section 12-12-72(1) thus being satisfied, Goodrum’s appeal is properly before this court.

Goodrum pleaded guilty and was convicted of possession of a controlled substance on December 8, 1978. His sentence was fixed at five years’ imprisonment; however, the trial judge determined that Goodrum should serve 14 days in the Mobile County Jail and then be placed on probation for the balance of his sentence, four years and 351 days.

A probation revocation hearing was conducted on December 18, 1981, by the District Court. The State presented evidence that on August 29, 1979, appellant, again, was found in possession of controlled substances. The facts which gave rise to the revocation of appellant’s probation are, in pertinent part, summarized in the District Court’s “Written Statement of Evidence Relied Upon and Reasons for Revoking Probation,” as follows:

“A written motion to revoke setting forth the alleged violations of probation was duly filed herein and served upon defendant who was given an opportunity to be heard and present documentary evidence and to confront and cross-examine adverse witnesses against him, all as noted on the summary sheet on file in this cause.
“The court considered the following evidence pertaining to the alleged violations: “1. Testimony of David Green that defendant was advised of probation rules. “2. Testimony of Sgt. A.A. Larison, Bayou La Batre Police. That on 8/29/79 at 5 P.M. he received a ‘suspicious person’ complaint and saw appellant with a juvenile outside defendant’s car on Davenport Extension in Bayou La Batre. As he approached the defendant, the defendant threw an object to the ground and placed his foot over it. The officer recovered the object which was a spoon and syringe. The syringe contained a liquid substance which appeared to be a drug. He also found green plant material and a roach clip in the car. The spoon, syringe, plant material and the ‘roach’ were turned over to the toxicologist and proved to be marijuana and pentazocine.
“3. Documents:
Exhibit # 1 — Probation And Parole
Regulations
Exhibit # 2 — Toxicologist Report”

Appellant maintains, contrary to the District Court’s findings, that he never received written notice of the claimed violations of his probation. Written notice is one of the requirements which must be met for minimal due process to be accorded the probationer under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Knight v. State, 408 So.2d 192 (Ala. Cr. App. 1981).

While the organization of this appellate record is not a model of perspicuity, we believe that it does demonstrate with sufficient clarity that appellant received written notice of the claimed violations of his probation.

On January 16, 1980, appellant’s probation officer, David Green, prepared his “Supervisor’s Report on Delinquent Probationer,” which listed appellant’s August 29, 1979, arrest as the reason for recommending that a hearing be held to determine if appellant had violated the terms of his probation. Green indicated that appellant had reported the August 29 arrest to him, but claimed that the controlled substances were not his. Green’s “Supervisor’s Report” was filed on February 25, 1980.

Also on February 25, 1980, the State filed a “Motion to Revoke Probation” alleging that appellant had violated the conditions of his probation by his possession of controlled substances, which was the basis for his August 29 arrest.

Then on February 27,1980, the Sheriff of Mobile County was commanded “to serve defendant” with a copy of the “Notice of Probation Revocation Hearing,” which had attached to it the State’s February 25 “Motion to Revoke Probation.” The “Notice of Probation Revocation Hearing” was signed by the warrant clerk for the District Court of Mobile County and reads in pertinent part:

“To the Defendant:
“Pursuant to an order made this day by the District Court of Alabama, Mobile County, you are notified to appear before said court on the day, time, and place indicated below to show cause, if any, why the suspension of the execution of the sentence imposed upon you herein should not be revoked pursuant to the attached motion of the District Attorney. Date: April 11, 1980 Time: 9:00 a.m. Place: Courtroom ‘A’ Mobile County Courthouse.”

The Sheriff of Mobile County was not commanded to serve anyone but the appellant with this “Notice of Probation Revocation Hearing” and the attached “Motion to Revoke Probation.” The Sheriff’s return indicated that the notice had been personally served on “all witnesses by whose name is an X mark.” Since the Sheriff was commanded to serve just the appellant, “all witnesses” in this case meant the appellant.

In addition to this indication that appellant did receive written notice of the claimed violations of his probation, the District Court’s “Case Action Summary” also demonstrates that the “Order to Show Cause,” which was issued on February 27, 1980, was “served.”

Appellant did not appear at the April 11, 1980, hearing and an arrest warrant for probation violation was issued that same day. Appellant was arrested pursuant to the warrant on April 13, 1980, but was released on bond. Another hearing was set for May 9,1980, and, again, appellant failed to appear. An alias warrant was then issued and appellant arrested pursuant to this warrant on November 6, 1981.

Examining this record as a whole, we are convinced, as was the District Court, that appellant was afforded due process of law under Morrissey and Gagnon by receiving written notice apprising him of the claimed violations of his probation.

Appellant next maintains that the State did not establish a proper chain of custody for the controlled substances discovered by Sergeant Larison on August 29, 1979. Appellant contends that the mere introduction of the toxicologist report, coupled with Sergeant Larison’s testimony, was insufficient to prove chain of custody for the substances. When this matter was brought to the attention of the District Court, the court responded as follows:

“If this were a trial of the case, I would sustain your objection, but this not being a trial, but a motion to revoke, my understanding is that the rules of evidence are not quite the same.... ”

The District Court’s decision to admit the toxicologist’s report in this manner, and not require the personal attendance of the toxicologist to technically establish the chain of custody for the controlled substances, was proper. Formal procedures and the application of strict rules of evidence are not employed in probation revocation hearings. Armstrong, supra; Thompson v. State, 356 So.2d 757 (Ala. Cr. App. 1978).

To justify the revocation of probation, it is not necessary that the evidence be strong enough to convince the court beyond a reasonable doubt, or by a preponderance of the evidence that the probationer has violated a term of his probation. It is sufficient if the court is reasonably satisfied therefrom of the truth of the charge. Armstrong, supra; Carter v. State, 389 So.2d 601 (Ala. Cr. App. 1980); Thompson, supra.

The appellant having been afforded due process of law in full compliance with the guidelines set out in Armstrong, supra, the District Court’s judgment is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Sarah GARNER v. STATE.
    3 Div. 402.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      William A. Gunter, IV, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for theft in the second degree. Alabama Code 1975, Section 13A-8 — 4.

The indictment, in pertinent part, charges as follows:

“Sarah Garner, ... did obtain by deception, control of, to-wit, food stamps valued at to-wit $222.00 in U.S. currency, the property of the State of Alabama, said deception being as follows, to-wit: the said Sarah Garner created a false impression or failed to correct, while having the duty to correct, a false impression of Joyce Dailey, an Agent of the Montgomery County Department of Pensions and Security in that she represented that her household net income, used to calculate food stamp eligibility, was to-wit, $0.00 during the months of April 1980 through July 1980.”

“A person commits the crime of theft of property if he: ... (k)nowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.” Section 13A-8-2(2). The omission of the element of intent renders the indictment void. McCord v. State, 79 Ala. 269 (1885); Barbee v. State, 417 So.2d 611 (Ala. Cr. App., 1982).

Generally, a defendant waives any irregularities in the indictment by entering a plea of not guilty. Harrison v. State, 384 So.2d 641, 643 (Ala. Cr. App. 1980). However, in filing her written plea of not guilty and waiver of arraignment, the defendant “specifically and expressly reserve(d) the right upon the filing hereof to hereafter, but before trial or before such date as may be set by the court, to interpose any special pleas or demurrer which the defendant had the right as a matter of law to interpose in this cause, prior to the filing hereof.”

The defendant’s “motion to quash, dismiss, demurrer to, or set aside indictment” should have-been and was due to be granted.

The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


text:
    Willie James HALL v. STATE.
    3 Div. 478.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      Terry G. Davis of Gray, Seay & Lang-ford, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton of McLain & Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment charging escape in the first degree under Alabama Code 1975, Section 13A-10-31. He was sentenced as an habitual offender to life imprisonment.

The defendant alleges that his guilty plea was involuntary because it was induced by an “informal agreement” with the district attorney not to invoke the Habitual Felony Offender Statute. Alabama Code 1975, Section 13A-5-9.

Before accepting the defendant’s guilty plea, the trial judge inquired if there was any sentencing agreement. On two separate occasions, the assistant district attorney specifically denied the existence of any sentencing agreement. The defendant specifically denied that anyone had told him he would receive a lighter sentence or a particular sentence if he pled guilty.

After the plea was accepted, sentencing was continued until a pre-sentence report could be obtained. On the date set for sentencing, defense counsel moved “that the guilty plea be withdrawn on the basis of inducement. There was an agreement worked out with the district attorney’s office.”

At a hearing on the motion to withdraw the guilty plea, defense counsel testified that assistant district attorney Jim Traeger told the defendant that if he cooperated in the investigation of two other named individuals and if this investigation resulted in an indictment of those individuals, the habitual offender statute would not be invoked. “Mr. Traeger also said that there are no promises, that he had to get an indictment.”

Mr. Traeger’s testimony was that after the investigation no indictment was returned against the two other individuals.

The defendant testified that he pled guilty because Traeger promised him that he would get two to twenty years if he could get the two other individuals “indicted”: “that was my understanding, that you know, once I signed the paper, that I would get two to 20.”

The assistant district attorney’s offer to the defendant violates our holding in Miliner v. State, 414 So.2d 133 (Ala. Cr. App. 1981), cert. quashed (Ala. 1982). A plea bargain agreement cannot circumvent the provisions of the Habitual Felony Offender Statute. Miliner, 414 So.2d at 135.

“It is our judgment, moreover, that whenever the district attorney has knowledge of a defendant’s prior convictions, he must, as an officer of the court, ‘show’ those convictions to the court, so that the trial judge can sentence the accused in accordance with the clear mandate of the recidivist statute. In other words, we do not believe the prosecution has any discretion about whether or not to ‘show’ the prior convictions; if he is aware of the accused’s record he must apprise the court of that fact.”

Miliner, 414 So.2d at 135.

Before his guilty plea was accepted, the defendant was only advised that the minimum and maximum possible sentence for his offense was from two to twenty years. However, at the time of the escape the defendant was serving a 40 year sentence for robbery. Escape in the first degree is a Class B felony. Section 13A-10-31(b). Therefore, under the Habitual Felony Offender Statute, the defendant would have to be punished for a Class A felony. Section 13A-5-9(a)(2). The sentence for a Class A felony is imprisonment for life or not more than 99 years or less than 10 years. Section 13A-5-6(a)(1). Consequently, the defendant was improperly informed of the possible range of punishment for the charged offense.

Since an accused must be informed of the minimum and maximum possible sentence for his offense as an absolute constitutional prerequisite to acceptance of the guilty plea, Miliner, 414 So.2d at 134, the judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Orbey CHAMBERS, alias v. STATE.
    3 Div. 541.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    On Return to Remand Nov. 2,1982.

      Harold L. Wilson, Hayneville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was indicted for rape in the first degree in violation of Ala. Code § 13A-6-61 (Supp. 1977). At arraignment, in the presence of counsel, he pleaded not guilty. Upon conviction the trial court sentenced appellant as a recidivist under the Habitual Offender Act to life imprisonment. Appellant is represented by the same court-appointed counsel on this appeal as he was at trial and has .been furnished with a free transcript.

The State’s evidence affirmatively proves beyond any reasonable doubt that appellant was guilty as charged. Briefly stated, on May 25, 1981, appellant and two other men abducted the prosecutrix as she was walking toward the Jr. Food Store in Georgiana and drove her to a rural church in Butler County. There, in a wooded area beside the church, the prosecutrix’s clothes were torn off and she was forcibly raped by each of the three black males, including appellant. The prosecutrix was certain appellant’s penis had penetrated her vagina.

After appellant and the other two assailants had finished raping the prosecutrix, she was left naked in the woods near the church. She wandered for several hours in this condition until she was discovered by the police.

From the foregoing facts it is clear that the question of appellant’s guilt was properly a question for the jury which they resolved. Law v. State, 407 So.2d 572 (Ala. Cr. App. 1981); Lyner v. State, 398 So.2d 420 (Ala. Cr. App. 1981); King v. State, 395 So.2d 489 (Ala. Cr. App. 1981).

Appellant contends that the prosecutrix, due to a mental defect, was incompetent to testify as a witness in this case. We disagree. Appellant objected to the prosecu-trix’s testifying at trial on the ground she was “not a competent witness,” but made no request for the trial court to conduct an examination of her in accordance with Ala. Code § 12-21-165 (1975). Although the trial court did not conduct a separate examination to determine the prosecutrix’s competency, the record affirmatively demonstrates that she was competent to testify.

Dr. Cynthia Clay, the prosecutrix’s psychologist and director of the Butler-Cren-shaw County Mental Health Centers, testified that the prosecutrix did suffer a form of mental illness, but had received outpatient treatment and had shown definite improvement prior to being raped. The prose-cutrix’s mental condition had not required any type of institutionalization.

Dr. Clay examined the prosecutrix on May 26,1981, and, in her opinion, the prose-cutrix “was telling the truth” about being raped the day before. “[S]he showed me bruises that she had gotten. She described the incident to me.” According to Dr. Clay, the prosecutrix went into “details” concerning the rapes and on later occasions repeated the “same details.” Dr. Clay testified that the prosecutrix’s consistency of details demonstrated that her story was truthful and not fabricated.

More importantly, however, a careful review of the prosecutrix’s testimony in no way indicates that she was anything but competent to testify. Her answers to questions from the prosecution and the defense were clear and responsive.' Her narrated account of the sequence of events which occurred from the time she was abducted until the police found her was lucid and detailed. She was positive in her identification of appellant as one of her three assailants. And her story did not vary under a thorough and sifting cross-examination. In short, the presumption of competence which the trial court afforded the prosecutrix is well supported by the record.

It is an elementary principle of law that a presumption of competency attends a witness and that the burden of proving incompetency is upon the party objecting. Smith v. State, 380 So.2d 345 (Ala. Cr. App. 1980). In order “to exclude a witness on the ground of mental or moral incapacity, the existence of the incapacity must be made to appear.” Smith, 380 So.2d, at 347.

Whether a person’s affliction with a mental defect is such as to incapacitate him to be a witness is a matter to be determined by the trial judge. C. Gamble, McElroy’s Alabama Evidence, § 94.01(2) (3rd ed. 1977). In determining competency the trial judge is not bound by any hard and fast rule. Jolly v. State, 395 So.2d 1135 (Ala. Cr. App. 1981). The discretion of a trial judge as to the competency-of a witness is of a well nigh irrevisable nature. Smith, supra.

After a careful examination of the record in this regard, we find that the trial court did not abuse its discretion in determining that the prosecutrix was competent to testify. Any error in the failure to conduct a separate examination to determine the prosecutrix’s competency was harmless error at most in this case. ARAP, Rule 45.

Appellant also alleges that the trial court erred in refusing his written requested charges. There is no merit to this argument. Because appellant did not object to the judge’s failure to give his written charges and state the grounds of his objection, any alleged error has not been preserved for review. Allen v. State, 414 So.2d 989 (Ala. Cr. App.), Affirmed, Ex parte Allen, 414 So.2d 993 (Ala. 1982); Samuel Blakely v. State, 418 So.2d 935 (Ala. Cr. App.) [Ms. 1 Div. 386, 1982],

At appellant’s sentence hearing it was shown that, on July 12, 1979, prior to the instant conviction for rape, appellant pleaded guilty to three separate cases of forgery. Each of these three guilty pleas constitutes a separate felony conviction for purposes of the Habitual Offender Act. Watson v. State, 392 So.2d 1274, 1279 (Ala. Cr. App. 1980), cert. denied, 392 So.2d 1280 (Ala. 1981); Burgess v. State, 412 So.2d 298, 299 (Ala. Cr. App. 1982). As this court stated in Watson, supra, “all felonies come within the purview of the habitual offender statute regardless of their origin.” 392 So.2d, at 1279.

Consideration of a defendant’s prior convictions in sentencing him pursuant to the Habitual Offender Act does not give the act efficacy as a constitutionally prohibited ex post facto law, even though such prior convictions occurred before the effective date of the act. Ray v. State, 398 So.2d 774, 776 (Ala. Cr. App.), cert. denied, 398 So.2d 777 (Ala. 1981), and authorities cited therein. The important consideration is that, at the time appellant contemplated committing the instant felony, he was charged by law with knowledge that if he committed the felony he would be subject to punishment under the Habitual Offender Act. Coker v. State, 396 So.2d 1094 (Ala. Cr. App. 1981).

Thus, it was proper for the trial court to consider appellant’s three prior guilty pleas as three separate felony convictions for the purposes of sentencing him as a recidivist.

Under the mandatory requirements of the Habitual Offender Act, however, this case must be remanded and appellant sentenced to life without parole rather than life imprisonment. Rape in the first degree is a Class A felony. Ala. Code § 13A-6-61(b) (Supp. 1977). Ala. Code § 13A-5-9(c)(3) (Supp. 1981) mandates that:

“In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows: ... (3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole.”

For the reasons set out in Mack Aplin v. State (Ala. Cr. App.) [Ms. 4 Div. 893, December 29, 1981] and in Harry Peoples v. State, 415 So.2d 1230 (Ala. Cr. App.), [1982], we remand this cause to the trial court for proper sentencing under the Habitual Offender Act.

All parties should be present, with counsel, and any evidence offered shall'be recorded for this court’s review. A complete transcript of these proceedings shall be transmitted to this court under Aplin, supra, and Peoples, supra.

AFFIRMED, BUT REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

This case was remanded to the Circuit Court of Butler County, Alabama, for a new sentencing hearing. In strict compliance with the order of this court a new sentencing hearing was set at which appellant and his counsel were present. The state introduced into evidence three certified copies of the judgments of conviction showing that appellant had been previously convicted of three forgery cases, after which the court sentenced the appellant to life imprisonment without parole under the provisions of Section 13A-5-9(c)(3) (Supplement 1981) which mandates that:

“In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows: ... (3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole.”

A supplemental transcript showing this re-sentencing, including the certified copies of the previous convictions, was filed in this court.

Upon consideration of the supplemental transcript which includes the three certified copies of the three previous felony convictions, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jesse McKINNON v. STATE.
    4 Div. 10.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      Benton H. Persons, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen. and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence after a jury had found defendant guilty of harassment as charged in a complaint and as defined in Alabama Criminal Code, § 13A-ll-8(a), as follows:

“A person commits a crime of harassment if, with intent to harass, annoy or alarm another person, he strikes, shoves, kicks or otherwise touches a person or subjects him to physical contact.”

The trial court fixed his punishment at three months’ hard labor for the county and a fine of five hundred dollars. The defendant had appealed to the Circuit Court from the District Court which, acting without a jury, had fixed defendant’s punishment in the county jail for thirty days.

With the exception of the name of the alleged victim, the first paragraph of appellant’s Statement of the Facts in his brief is as follows:

“This case involves the alleged harassment of a white female student at Lur-leen B. Wallace State Junior College. . . . The Appellant is a black male and is also a student at the same college. On October 12, 1981, the Complainant reported that the Appellant came up behind her while she was sitting at the College library studying and grabbed her rear some time during the morning hours.”

The only issue presented is thus stated in appellant’s brief: “Whether the evidence presented on trial is sufficient to sustain a conviction against the Defendant of the criminal offense for which he was charged.” In presenting such issue, appellant does not contend that the evidence was insufficient to show that the conduct complained of by the victim, and as to which she testified, constituted the crime of harassment as statutorily defined. His only contention is that the evidence is insufficient to show that defendant was the person who committed the crime. As to this the testimony of the victim and the testimony of defendant were in irreconcilable conflict, she testifying emphatically that he did and he testifying just as emphatically that he did not, that at the time of the alleged crime he was not in the library but was in the gymnasium playing basketball. He was supported in his defense of alibi by the testimony of two of his fellow-students who testified that he was with them playing basketball in the gymnasium from 10:00 to 10:45 A.M. on the morning of the incident. The victim testified that the incident occurred at approximately 11:30 A.M. but that she had mistakenly previously stated that it occurred at 10:30 A.M.

Nellie Cooper, an employee of the library of Lurleen B. Wallace Junior College, testified that on the morning of the alleged incident the following occurred:

“A. And then it was before lunch though, just before lunch that it happened. I can’t recall the exact time.
“Q. Do you recall whether it was closer to lunch or closer to the time that you came in?
“A. It was closer to lunch, because — I didn’t look at the clock, but it was closer to lunch, ’cause I had done been in there quite a while when this happened.
“Q. Okay. Tell these ladies and gentlemen, if you would, what you first remember about [the named victim] having any kind of difficulty that morning?
“A. I was sitting up at the circulation desk and she approached the desk. And she asked was Miss King [the librarian] there. And I said, yes, she in (sic) the work room. And she said, something has got to be done to this boy and she pointed over close to the loveseat, which goes around to the periodical-magazine room and the work room area, back that way. And Jesse McKinnon was standing over there. And she had come up to the desk and done that.
“Q. Did you recognize Jesse McKinnon?
“A. Yes, sir, I did.
“Q. Had you seen him before?
“A. Yes, sir, that morning. He had worked, he was working later than usual in there and he was in there when I came in at nine-fifteen.
“Q. And he worked in the library too, is that what you are saying?
“A. He works on Work-Study Program from — usually from eight till nine, but he was late getting in that morning, so he was working late.
“Q. All right. So he had been in the library that morning?
“A. Yes, sir.
“Q. Had he been around you at the circulation desk?
“A. Yes, sir, he was behind the circulation desk when I went in at nine-fifteen. And he stayed back there for about thirty minutes after I got there.
“Q. Okay. Are you sure of your identification?
“A. Yes, sir.
“Q. All right. What did you do after she had pointed him out to you?
“A. I got up from my stool and I went back to the work room and as I walked back to the work room, he passed in front of me and stepped inside the door that goes into the periodical-magazine room and was standing there. And I went on past him into the work room and told Miss King, at that time. I said, we have a problem here. And she went to rise up from her seat, to come out, and I started back out of the doorway there into the work room and I saw Jesse at that time, run from the periodical-magazine door out around the circulation desk and out the front door.
“Q. You say that he ran?
“A. He ran.
“Q. Were you looking right at him when he... .
“A. I was looking right at him.”

We find no merit in appellant’s contention that the evidence was not sufficient to support the verdict of the jury. His argument is soundly and convincingly answered by what was stated by Presiding Judge Harris in Shelton v. State, Ala.Cr.App., 382 So.2d 1175, 1177:

“This Court has many times held that in our system of criminal justice we do not travel on the .... number of witnesses. A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Godbee v. State, 56 Ala.App. 174, 320 So.2d 107; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Arnold v. State, Ala.Cr. App., 348 So.2d 1092, certiorari denied, Ala., 348 So.2d 1097.
“Alibi testimony, like all other testimony in a criminal prosecution, raises issues for the jury’s determination. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Graves v. State, Ala.Cr.App., 364 So.2d 700.”

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Demetrius ROBINSON v. STATE.
    5 Div. 655.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of the possession or utterance of a forged check, “with intent to defraud” and “having knowledge that said instrument was forged in violation of Section 13A-9-6 of the Code of Alabama.”

The Statement of the Facts in appellant’s brief is as follows:

“Demetrius Robinson worked for Town and Country Construction, on various occasions over a period of years, and he worked specifically for Mr. Melvin Mara-ble. At various times through his employment, it is Mr. Robinson’s contention that he had written checks and signed Mr. Marable’s signature for various supplies for the company, Town and Country Construction. It is also his contention, Mr. Robinson, that he had been authorized to sign these checks by Mr. Marable and that the authorization had never been withdrawn. The check for which this indictment is brought, check No. 286, was similarly written by Mr. Robinson, and he signed Mr. Marable’s name. It was cashed at a nearby store at which time $10.00 worth of gasoline was placed in the tank of the truck Mr. Robinson was driving, a truck belonging to Mr. Mara-ble, and the ■ remaining $50.00 was retained by Mr. Robinson as payment for his services.”

Appellant argues that “the evidence presented was insufficient to sustain the conviction” and that the “necessary elements for the crime of criminal possession of a forged instrument were not shown.” Appellant would probably be correct if defendant had been the only person testifying in the case. He makes a strong case in his favor. However, Mr. Marable testified, inter alia, as follows:.

“Q. All right. Directing your attention to the bottom right hand corner of that same Check # 286, State’s Exhibit 1, do you see a name appearing thereon?
“A. Right.
“Q. Whose name is it?
“A. My name, Melvin Marable.
“Q. Is it your signature?
“A. No sir, it’s not.
“Q. Did you authorize anyone to sign that signature to that document?
“A. No sir, I did not.
“Q. And you state again to the Court you never authorized him to sign your signature to any checks?
“A. No sir, I did not.”

We are not convinced that the evidence is free of uncertainty and doubt as to whether defendant was authorized, or honestly believed that he was authorized, to sign Mr. Marable’s name to the particular check upon which the indictment was based, as well as to other checks, but there was substantial evidence that defendant was not so authorized and that his utterance of the check upon which the prosecution herein is based was with intent to defraud.

The only other contention made by appellant, to the effect that the trial court erred in admitting in evidence other checks admittedly written by defendant and bearing the purported signature of Melvin Mar-able as drawer, was answered adversely to appellant in Bledsoe v. State, Ala.Cr.App., 409 So.2d 924 (1981), cert. denied, Ala. S.Ct. 81-239, as follows:

“A major contention of appellant is that the trial court erred in overruling defendant’s objections to the testimony of witnesses that during the same month of the commission of the alleged crime in the instant case, the defendant was in possession of and uttered three forged checks which purported to be checks of the same drawer and drawn on the same bank as the check in the instant case. To so hold would be in conflict with what has been held in many cases, including Preyer v. State, Ala.Cr.App., 369 So.2d 901 (1979); Christison v. State, 41 Ala.App. 192, 142 So.2d 666 (1960), aff’d 273 Ala. 564, 142 So.2d 676 (1962); Kirby v. State, 17 Ala. App. 151, 82 So. 641, cert. denied, 203 Ala. 473, 83 So. 416 (1919); and Williams v. State, 126 Ala. 50, 28 So. 632 (1900).”

Notwithstanding some concern on our part as to the weight of the testimony, there is no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Anthony JONES v. STATE.
    5 Div. 665.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      Theron Stokes of Gray, Seay & Langford, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Anthony Jones, was indicted by the grand jury of Macon County for robbery in the first degree. He entered a plea of not guilty, and was found guilty of robbery in the first degree as charged in the indictment. He was sentenced under the Alabama Habitual Felony Statute to the penitentiary of the State of Alabama for a term of his natural life without possibility of parole, and he appeals to this Court.

The appellant was, at all proceedings in the trial court, and is, in this Court, represented by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant contends in his brief that the trial court erred to his prejudice on three grounds: First, by overruling appellant’s motion to exclude state’s evidence; second, by refusing to give written requested jury instructions 1-8; third, by overruling appellant’s motion for a new trial.

State’s evidence tended to prove that on September 7, 1981 Mr. Mindingall, the injured party, lived at 110-C Sojourner Apartments in Tuskegee, Macon County; that he was sitting on Mr. Howard’s porch across the courtyard visiting with, and having a social drink with Mr. Howard and a friend, when the appellant, Anthony Jones, came up; that at about 4:00 or 4:30 he went home to cook something to eat; that it was hot weather, and he did not lock his front door; that the appellant followed him home, came in Mr. Mindingall’s apartment behind him, and put a big knife next to his throat, and said give me your money; that Mindingall grabbed the arm of the appellant, and the appellant cut him, and then went back to his throat, and got Mindin-gall’s money, $47.00, and pocketbook; that the appellant cut him two more times, and took his watch; that the watch and money were worth over $247.00; that he was positive the appellant was the person who took his pocketbook, money and watch; that Mindingall bled real bad from the cuts, and blood was all over his house, and he went to the hospital and was sewed up; that he had been drinking , but was not drunk.

State’s witness LaFayette Howard, testified, in substance, that on September 7, 1981, he lived at C-106 Sojourner Apartments across the courtyard from Mr. Min-dingall; that Mindingall and some friends of Mr. Howard were sitting on his front porch having a social drink when the appellant came up; that when Mindingall left to go home to get a bite of food, the appellant followed him; that he had known the appellant three or four years; that the appellant followed Mr. Mindingall into his apartment, and in a few minutes came out and waved his hand at us and left; that as soon as appellant left, Mr. Mindingall came out of his • apartment and over to Mr. Howard’s apartment, at which time he was bloody as a hog; that no one else came out of Mindin-gall’s apartment; that he went over and looked in Mindingall’s apartment and saw blood all over every one of the rooms, bathroom and everywhere in there, and towels in the sink as bloody as they could be; that when Mr. Mindingall left Howard’s house to go home, he had a watch, and when he came back bloody, he did not have the watch on.

State’s witness Johnny H. Willis, testified, in substance, that on September 7, 1981 he was a police officer employed by the City of Tuskegee; that about 7:28 P.M. he went to C-110 Sojourner Apartments where Mindingall lived; that Ernestine Minnifee, LaFayette Howard, and George Mitchell were there; that Mr. Mindingall was nursing an injury to his lower left arm; that there was blood on the dressing he had on his arm, on the floor in the bedroom, in the middle of the bed, in the bathroom; that there was a large puddle of blood on the floor near the commode, and drippings in the hallway; that Mindingall complained that the appellant had rolled him, and taken his pocketbook, and two twenty dollar bills; that several days later he saw and arrested the appellant; that in his opinion Mindin-gall had been drinking and was drunk; that Mindingall had no problem in relating exactly what had happened.

The state rested, and there was a recess for lunch. Upon resuming the trial, the court allowed the state to reopen its case, whereupon, state’s witness, Ernestine Min-nifee, testified, in substance, that on September 7, 1981, at about 4:00 o’clock, she was at Mr. Howard’s apartment on the front porch having a drink with Mr. Howard and some friends; that they were drinking, but were not drunk; that Mr. Mindingall was there, and got up to go across the courtyard to his apartment; that the appellant was there, and when Mindin-gall left, the appellant left and followed Mindingall until they both went into Mr. Mindingall’s apartment; that in ten or fifteen minutes the appellant came out of Mindingall’s apartment and waved his hand; that he was almost running when he left; after appellant left, Mindingall came over to Mr. Howard’s house and was bloody; that he had three cuts on his arm, one on his shoulder, and two on his wrist; that they stopped his bleeding, and went over to Mindingall’s house, and called an ambulance and the police; when she went over to Mindingall’s house, she saw blood in every room, hallway, bedroom, bathroom, and kitchen; that Rose Davis and her boy friend brought the appellant down there to Mr. Howard’s house; that she did not see anyone else go into Mindingall’s house except him and the appellant. State rested its case, and the appellant moved to exclude state’s evidence on the ground that it was insufficient to make out a prima facie case against the appellant.

Mr. Robert Sheppard, a witness called by the appellant, testified that on September 7, 1981, he picked the appellant up and took him down to the Sojourner area selling watermelons; that he did see Mr. Mindin-gall, who asked him to go and get some beer, and that Mr. Mindingall was unsteady, and his speech was slurred. Later, he told Mrs. Rose Davis to take Mr. Mindin-gall a watermelon. Mr. Sheppard stated that the appellant was in his sight all the time he was down there, except for about twenty minutes, or less, and the appellant was not wearing a hat on that day.

Rose Davis, a witness called by the appellant, testified that she went down to Sojourner Apartments area selling watermelons with Mr. Sheppard. That on their way, they picked up the appellant. That Mr. Howard told her to take a watermelon to Mr. Mindingall. She took a watermelon to Mr. Mindingall, who offered her some liquor he was drinking. She refused the liquor, and told him she “only drinked beer.” He followed her out of the apartment trying to put his shoes on, and went to the truck and asked Mr. Sheppard to take him to get some beer. Mr. Mindingall appeared to have been drinking heavily. The appellant was out of their company only briefly, about twenty to thirty minutes. The appellant offered no other evidence.

The appellant’s first contention in his brief is that the trial court erred to his prejudice by overruling his motion to exclude state’s evidence on the ground the state has failed to prove a prima facie case. Robbery in the first degree is defined by Code Of Alabama, 1975, Sec. 13A-8-41. Robbery in the first degree.

“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causés serious physical injury to another.
“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.
“(c) Robbery in the first degree is a Class A felony.”

Sec. 13A-8-43. Robbery in the third degree.

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

If any facts are proven from which the jury may reasonably infer that a robbery has been committed, and that the appellant was the perpetrator of the robbery, the trial court is under a duty to submit the question to the jury. It is not the duty of the trial court to declare that the state’s evidence is untrue, and this Court does not have the authority to do so. If there is sufficient evidence before the jury to prove that the crime charged in the indictment has been committed, and that the appellant perpetrated the crime, it is the duty of the jury, and only the jury, to decide the weight they will give the testimony of the witnesses.

We hold that the evidence of the state is sufficient to sustain the jury’s verdict, and that the trial court did not err to the prejudice of the appellant when it overruled appellant’s motion to exclude state’s evidence. McCord v. State, Ala. Cr. App., 373 So.2d 1242; Code Of Alabama, 1975, Sec. 13A-8-41 and 43; Hayes v. State, Ala. Cr. App., 412 So.2d 1252; Foust v. State, Ala. Cr. App., 414 So.2d 485; Allen v. State, Ala. Cr. App., 414 So.2d 163; Gosha v. State, Ala. Cr. App., 389 So.2d 563; Joshua v. State, Ala. Cr. App., 372 So.2d 885; Cert. Den., Ala., 372 So.2d 891.

The appellant’s second contention in his brief is that the trial court erred to his prejudice by refusing to 'give his written requested jury instructions numbers 1 through 8. We have searched the record in this case and do not find that the appellant objected to the trial judge’s refusal to give the written requested jury instructions, and state his grounds, before the jury retired to consider its verdict. In the case of Allen v. State, Ala. Cr. App., 414 So.2d 989, at page 992, Judge Tyson, speaking for this Court, said:

“It is, therefore, our conclusion that the ‘automatic exception’ to refused requested written charges no longer exists.’ ”
“The proper procedure for preserving the right to assert error on appeal is for the affected party to object and state his grounds before the jury retires, just as is done for alleged errors in the trial court’s oral charge.
“The primary reason for requiring an exception after the trial court’s oral charge and before the jury retires is that such requirement might expedite a satisfactory conclusion of the case. Possible errors by the trial court such as inadvertent omissions in its oral charge or refusals of written’ charges which deal with crucial issues should be brought to the attention of the trial court so that it might cure such errors at that level. This would only improve a defendant’s chances for a favorable verdict. Also, if counsel are encouraged to question the trial court’s refusal of their written charges at the trial level, they might be allowed to correct charges with spelling errors, typographi- . cal errors, and misstatements of the law, charges which are currently losers at the appellate level.”

The Supreme Court, speaking through Justice Maddox, in affirming the Court of Criminal Appeals, Ex Parte Allen, Ala., 414 So.2d 993, on pages 994-995, said:

“Because the automatic exception provision has been eliminated from the 1975 Code, it is our considered opinion that the Court of Criminal Appeals was not required to notice any alleged error or defect in this criminal proceeding, which was under review unless the alleged error or defect was brought to the attention of the trial court. It is only in death cases that the automatic exception has been preserved.”

We hold that we are not required to review the merits of the appellant’s assertions on this appeal because in Alabama there is no automatic exception, except in death cases, to the trial court’s refusal of a written requested jury instruction. The appellant did not reserve an exception at the trial below. Allen v. State, Ala. Cr. App., 414 So.2d 989; Ex Parte Allen, Ala., 414 So.2d 993.

Appellant’s third contention in his brief is that the trial court erred to his prejudice in denying appellant’s motion for a new trial on the grounds that state’s evidence has failed to prove a prima facie case.

Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the verdict of the jury, the overruling of a motion for a new trial on the ground of the insufficiency of the evidence is not reversible error. McHellen v. State, Ala. Cr. App., 351 So.2d 689; Young v. State, 283 Ala. 676, 220 So.2d 843.

State’s evidence was sufficient to present to the jury the question as to whether or not the appellant committed the crime which he was charged with and convicted of. We hold that the trial court did not err in overruling appellant’s motion for a new trial on the ground that the state’s evidence failed to prove a prima facie case. Miller v. State, 291 Ala. 132, 279 So.2d 115; Stewart v. State, Ala. Cr. App., 405 So.2d 402; Miles v. State, 257 Ala. 450, 59 So.2d 676; Cox v. State, Ala. Cr. App., 363 So.2d 1054.

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

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willie Lewis DAVIS v. STATE.
    6 Div. 842.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      William Veitch, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Jefferson County Grand Jury, Bessemer Division, for burglary in the third degree in violation of § 13A-7-7, Code 1975. At arraignment, appellant entered a plea of not guilty. The jury returned a verdict of guilty as charged in the indictment. At a separate Habitual Offender hearing, the State proved two pri- or felony convictions. The trial court accordingly sentenced appellant to twelve years’ imprisonment in the State penitentiary.

Appellant asserts as his sole issue on appeal that the State’s case, based upon circumstantial evidence, failed to prove a pri-ma facie case sufficient to sustain appellant’s conviction.

Jeff Stanley testified he was the service manager of the Goodyear store in Bessemer, Alabama, on June 20,1981. Upon arriving at work that morning, he noticed that a large glass pane had been broken out of one of the bay doors which had to be raised into the ceiling to allow automobile access into the service department. The bay door was locked as it always was. Inside the service department he observed a brick sized concrete water meter cover lying on the floor. He also saw broken glass both inside and outside the store. He discovered that six lawn mowers which had been sitting beside his desk were missing. Mr. Stanley informed the store manager of the missing items, and the manager called the police.

Detective Sergeant Billy Ray Smith of the Bessemer Police Department stated he investigated the burglary at the Bessemer Goodyear store early on the morning of June 20, 1981. He stated he dusted for fingerprints several pieces of broken glass which he found lying inside the building by the broken bay door window. He discovered that several of the pieces of glass revealed fingerprints on both sides of the glass. Detective Smith lifted thirteen prints from both sides of the glass pieces, transferred them to index cards, and subsequently transferred the index cards to fingerprint technician David George.

David George, a fingerprint technician with the Bessemer Police Department, stated he received a set of latent fingerprint lifts from Detective Billy Smith on June 20, 1981. On July 15, 1981, he compared these prints with known fingerprints of the appellant at Detective Smith’s request. Of the thirteen latent prints on the index cards received from Detective Smith, twelve were legible. Upon comparison, all twelve prints were identical to the prints of several different fingers of the appellant. Except for appellant’s right index and little fingers, every other finger appeared at least once, and some of them appeared twice. In Mr. George’s opinion, the latent prints he received from Detective Smith were made by the appellant.

The State rested at the close of Mr. George’s testimony. Appellant’s subsequent motion to exclude the State’s case was denied. Appellant presented the testimony of two older sisters who testified appellant was at home with them all night on the date the burglary occurred. Appellant then rested his case.

Circumstantial evidence is in no wise considered inferior evidence and will sustain a conviction as stoutly as will direct evidence, provided it points to the guilt of the accused. Stewart v. State, 405 So.2d 402, (Ala. Cr. App. 1981). This court must view such evidence in the light most favorable to the State, with the applicable test being not whether the circumstantial evidence excluded every reasonable hypothesis but guilt, but, rather, whether a jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt. Dolvin v. State, 391 So.2d 133 (Ala. 1980); Stewart, supra.

Viewing the evidence in the. light most favorable to the State, we find that the trial court properly submitted the case to the jury. Jeff Stanley testified the bay door to the Goodyear store was still locked at the time he discovered the broken window. Broken glass and a concrete meter cover were found inside the burglarized building. Six lawnmowers were determined to be missing from the service department where the break-in occurred. Appellant’s fingerprints were found on both sides of the broken glass removed from the scene by Detective Smith, indicating appellant’s unexplained presence inside the building. No evidence was presented of any legal purpose for appellant’s presence inside the premises, nor of appellant’s ever having been inside the premises at any prior time. There is no reasonable explanation for appellant’s fingerprints appearing on both sides of glass broken from a bay door which rolled up into the ceiling upon being opened for the public, except that of an illegal and unauthorized entry into the premises by appellant. Although entirely circumstantial, the evidence certainly was sufficient for the jury to determine the appellant’s guilt in this case. Scruggs v. State, 359 So.2d 836 (Ala. Cr. App.), cert. denied, 359 So.2d 843 (1978); Lark v. State, 348 So.2d 539 (Ala. Cr. App. 1977); Dolvin, supra. James v. State, 381 So.2d 672 (Ala. Cr. App. 1980).

No error harmful to the substantial rights of appellant having been demonstrated on appeal, this case is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ervin L. VARNER v. STATE.
    6 Div. 881.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.

      C. Steven McLaurin, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant Was indicted and convicted for theft in the first degree. Alabama Code 1975, Section 13A-8-3. Sentence was life imprisonment as a habitual offender. Three issues are presented on appeal.

I

The confession was admissible despite the fact that a law enforcement officer obtained routine information from the defendant before advising him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

After the defendant - had been arrested and taken to the city jail, he intelligently and voluntarily waived his Miranda rights and admitted his guilt. However, before Sergeant W. J. Herron warned the defendant of his constitutional rights, he questioned the defendant and obtained such information as the defendant’s name, address, age, race, date of birth, social security number, height, weight, mother’s and father’s name, address and telephone number. These questions seeking biographical information “did not relate, even tangentially, to criminal activity.” United States v. Menichino, 497 F.2d 935, 941 (5th Cir. 1974). They were “non-investigative” questions not designed to investigate crimes or the involvement of the arrested person or others in crimes. Menichino, 497 F.2d at 941, f.3. “Miranda was only ‘concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment.’ ” United States v. Grant, 549 F.2d 942, 946 (4th Cir.), cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081 (1977), quoting United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1113 (2d Cir. 1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976). See also W. Ringel, 2 Searches & Seizures, Arrests and Confessions, Section 27.4(b) (2d ed. 1981).

The defendant argues that Sergeant Her-ron used these questions during the “limbering up” phase of the interrogation “to break the ice and loosen the ground before asking more material questions.” There is absolutely no indication contained in the record that Sergeant Herron used any form of deception, however sophisticated or subtle, in obtaining a statement from the defendant. The defendant did not testify and presented no evidence at the hearing on the voluntariness of his confession.

II

At trial, the defense called a clinical psychologist in an attempt to prove that the defendant was incompetent to waive his constitutional rights. Dr. A. Raburn Jones testified that, ten years before the commission of the now charged crime, he had administered certain tests and determined the defendant to be of “borderline intelligence, neither average nor retarded” with a full scale I.Q. of 69.

On cross examination of Dr. Jones, the State was allowed to prove, over the objection of defense counsel, that Dr. Jones’ interview with the defendant had occurred in the Birmingham City Jail. The defendant argues that since he did not testify his character was not in issue and the fact that he had been previously incarcerated constituted inadmissible character evidence.

This situation was invited by the defendant and the State was properly permitted to show by cross examination of Dr. Jones any factor that would tend to discredit the results of his tests on which his conclusion and opinion were based.

“It is of course fundamental that until a witness had put his character in issue the State is not authorized to prove his bad character. Furthermore, the trait of character sought to be proved must be relative to the nature of the crime for which a defendant is being prosecuted. “However, it is equally fundamental that when a matter has been gone into by one party to a cause, the other side likewise has a right to go into the same matter and to explain away anything, if he can, that may have been brought out to his detriment.”
Cummings v. State, 34 Ala.App. 650, 653, 43 So.2d 326 (1949).

The State had a right to show the circumstances under which the test results were obtained. Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Wilson v. State, 22 Ala.App. 554, 117 So. 615 (1928). One party may cross examine an adversary expert psychiatric witness as to the depth of his investigation. Brown v. State, 45 Ala.App. 391, 397, 231 So.2d 167 (1970). On cross examination the State is entitled to show that the examination of the defendant by an expert witness was at instance of defense counsel. Waters v. State, 22 Ala.App. 644, 645, 119 So. 248 (1928). After Dr. Jones testified on direct examination for the defendant, the jury was entitled to hear any and all the information he used in arriving at his opinion of the defendant’s mental condition. Braswell v. State, 371 So.2d 992, 997 (Ala. Cr. App. 1979).

Ill

The defendant argues that the following remarks by prosecutor in closing argument constitute reversible error.

“He (the defendant) thinks it’s funny to go out here and steal somebody’s car.”
He * * * * *
“We can’t work for anything and hold on to it nowdays because people like Mr. Varner are going out and stealing it.”

The first comment is arguably within the wide latitude allowed a prosecutor in drawing inferences from the evidence. A police officer testified that the defendant waved at him when he got “side-by-side” the stolen automobile and then sped away in an attempt to escape when the officer pulled in behind him. Additionally, the trial judge, although overruling the defendant’s objection, immediately instructed the jury that what the attorneys argued was not evidence. “It is not every improper remark to which objection is not sustained which will require a reversal.” Flint v. State, 370 So.2d 332, 334 (Ala. Cr. App. 1979).

The second comment was within the latitude allowed prosecutors in their exhortations to the jury to discharge their duties in such a manner as, not only to punish crime, but to protect the public from like offenses and as an example to deter others from committing like offenses. Cook v. State, 369 So.2d 1243 (Ala. Cr. App. 1977), affirmed in part, reversed in part on other grounds, 369 So.2d 1251 (Ala. 1978). “It is clear that a district attorney in closing argument may make a general appeal for law enforcement.” Cook, 369 So.2d at 1254. We find no abuse of the discretion of the trial judge with regard to his rulings on the objected to comments of the prosecutor.

After considering the issues presented by the defendant on appeal, we find that the judgment of the circuit court should be affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Kenneth Earl THOMAS, alias v. STATE of Alabama.
    7 Div. 958.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Howard B. Warren of Torbert, Turnbach & Warren, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Kenneth Earl Thomas was indicted for and convicted of the first degree assault with a pistol of his ex-wife, Marie Thomas. He was, subsequently, sentenced by the trial court to ten years’ imprisonment.

At the close of the state’s case, the appellant moved for a directed verdict because of an alleged lack of proof of a “serious physical injury” sustained by the victim, Marie Thomas.

The evidence is undisputed that on the night of July 6, 1981, at Bill’s Lounge in Etowah County, the appellant fired into the back of Ms. Thomas at close range two shots from a .32 caliber pistol. The shooting took place shortly after Ms. Thomas had given the appellant their daughter’s clothes and had allegedly informed him that she did not wish to see him or the kids anymore, and after the appellant had watched her “hugging on” another man at the bar.

According to the appellant, he had had several beers prior to the shooting. He remembered that his ex-wife’s actions, the incident with the clothes and her “hugging on” the other man, had angered him. (R. 161, 175). He also remembered walking outside to “cool off” (R. 161) and having the pistol in his hand before he returned to the bar. (R. 170). He stated, however, that he did not remember the shooting, itself. After going outside to “cool-off” the next thing he remembered was waking up in jail.

I

Appellant’s primary argument on appeal is that the state’s evidence was insufficient to prove that Ms. Thomas, his ex-wife, received a “serious physical injury” as is required to support a first-degree assault conviction. See §§ 13A-6-20(a)(1), -20(a)(3), Code of Alabama 1975. He correctly cites the definition of “serious physical injury” in § 13A-1-2(9), Code of Alabama 1975, as:

“[a] physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

He contends that the state’s own evidence confirmed the fact that all six gunshot wounds (caused by two bullets) in Ms. Thomas’ back were superficial in nature and, therefore, were not “serious.”

The state’s medical expert, Dr. Miller, did testify that the victim’s wounds, due to the angle of the bullets, were superficial and that the majority of the damage caused by the bullets was to subcutaneous (fatty) tissue. He stated that although these wounds were not “life-threatening” (R. 138) a slight deflection in the paths of the bullets could have caused paralysis or death by hitting a vital organ or blood vessel. (R. 142). Dr. Miller stated that one bullet had apparently bruised Ms. Thomas’ spine and had traveled through nine inches of flesh across her back. (R. 138). The other bullet entered and exited the fleshy part of one side of her back (which naturally “bulges out a little bit”) and reentered and exited the other side of her back. Dr. Miller stated that his treatment consisted of “excising” some of the damaged tissue and irrigating the wounds tracking the paths of each bullet. (R. 140).

Ms. Thomas, the victim, testified that the appellant swung her around slightly before he shot her in the back. She remembered that she almost “passed out” as an immediate result of the shooting. The paramedics transported her to the hospital where she recuperated for two days, after which she was confined to her house and told to remain in bed for two weeks. (R. 23). She stated that she still had recurring pain in her back from scar tissue pressing against nerves on her spine causing what she referred to as “the jerks.” She further described the recurring pain in her back as a burning sensation as if someone was “sticking something hot to it,” making her “jerk and real nervous.” (R. 24). After describing the wounds, Ms. Thomas displayed to the jury the scars on her back (R. 24).

Contrary to appellant’s assertions, this evidence was sufficient to support a jury determination that Ms. Thomas’ injuries had caused “serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of [a] bodily organ,” as is necessary for a first degree assault conviction in this instance. See, People v. Rumaner, 45 A.D.2d 290, 357 N.Y.S.2d 735 (1974), and Brown v. State, 605 S.W.2d 572 (Tex. Cr. App. 1980); compare, Goode v. State, 408 So.2d 198 (Ala. Cr. App. 1981) (no evidence in support of third degree assault.) Since the question of whether or not the victim received a “serious physical injury” is a factual determination properly reserved for the jury and the evidence is sufficient in this instance to support the jury’s guilty verdict, said verdict will not be disturbed on this appeal. Woods v. State, 344 So.2d 1225 (Ala. Cr. App. 1976), cert. denied, 344 So.2d 1230 (Ala. 1977), and cases cited therein.

At trial the jury heard the medical expert’s description of the wounds and the victim’s account of her recurring pain and suffering. The jury had seen the scars left on the victim’s back. The jury had been adequately instructed with reference first, second, and third degree assault and the distinguishing characteristics of each. (R. 189-194). The jury was, therefore, well informed and its verdict must stand.

II

The appellant also contends that the trial court erred in refusing to order the victim, Ms. Thomas, to bring her daughter, Luann Thomas (who is also the appellant’s daughter), to the trial to testify on appellant’s behalf. We disagree.

This issue was first raised only after the trial had begun and after the victim had testified. The appellant made a special request (R. 64) that the trial court order the victim, Marie Thomas, to bring her six-year-old daughter to court for the sole purpose of impeaching part of the victim’s (Marie’s) testimony which the appellant claimed had a bearing on his motive for shooting her. The trial court refused appellant’s request because appellant had made no effort to subpoena this “missing witness,” even though he apparently knew where she was (R. 66), and because the appellant did not adequately demonstrate the propriety and necessity of such an order. [See, Goodrum v. State, 402 So.2d 1103 (Ala. Cr. App. 1981), and cases cited therein.] As a compromise the trial court did agree to have the circuit clerk ask the sheriff to expedite delivery of a subpoena to the Blount County Sheriff (Luann was reportedly in Blount County) for delivery to Luann Thomas. (R. 73). Finally, the trial court refused to authorize a writ of attachment for Luann because the expected testimony concerned immaterial and collateral issues and, thus, did not justify the unreasonable delay of the trial. (R. 100-101).

The appellant, eventually, sought a writ of attachment through the circuit clerk’s office, but this process failed to produce Luann before the trial ended.

Appellant’s assertions of error in this instance are without merit. The extraordinary compulsory process he sought from the trial court was entirely premature, and was, in any event, a matter within the sound discretion of the trial court. Martin v. State, 125 Ala. 64, 28 So. 92 (1900); Palmer v. State, 165 Ala. 129, 51 So. 358 (1909); Godfrey v. State, 383 So.2d 575 (Ala. Cr. App.), cert. denied, 383 So.2d 579 (Ala.), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980); Weaver v. State, 401 So.2d 344 (Ala. Crim. App. 1981), and cases therein cited; Goodrum v. State, supra, and cases cited therein. The indispensable missing witness was appellant’s own daughter. He knew of her existence and her whereabouts prior to trial, yet he made no pre-trial efforts to have her subpoenaed as a witness. Godfrey v. State, supra. Except for appellant’s allegations that she would have (and a few comments by Ms. Thomas that she would block appellant’s attempts to subpoena Luann because she did not want Luann, a six-year-old, put through such an ordeal) there is no evidence in the record that Luann avoided service of any process.

Moreover, it is extremely doubtful that Luann’s expected testimony, even if the trial court found Luann, a six-year-old, competent to testify, would have exonerated this appellant. See Scott v. State, 34 Ala.App. 519, 41 So.2d 630 (1949); Autrey v. State, 44 Ala.App. 53, 202 So.2d 88 (1967), cert. denied, 390 U.S. 1030, 88 S.Ct. 1422, 20 L.Ed.2d 287 (1968); Godfrey v. State, supra. Appellant contended that Luann would tell the jury that her mother “slept with” the man appellant saw her “hugging on” the night of the shooting and that she had related such information to appellant through relatives prior to the shooting. Appellant’s theory was that his prior knowledge of such alleged behavior by his ex-wife was a mitigating factor which would have persuaded the jury to return a verdict of second or third degree assault. Such a theory in this instance is unfounded.

For the foregoing reasons, this cause should be and is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Gerold Vance ANDERSEN, alias v. STATE of Alabama.
    8 Div. 657.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Joseph T. Co ;well of Conwell & Conwell, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Gerold Vance Andersen was indicted for theft of property in the second degree in violation of § 13A-8-4, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment,” and following a habitual offender hearing, the appellant was sentenced to five years’ imprisonment.

On April 26, 1981, the appellant entered into a contract with Mrs. Cecil E.’ Adams. The terms of the contract stated that the appellant promised to perform certain yard work for the Adamses in return for their promise to pay $330 for the work. Mrs. Adams signed the contract without reading the fine print and gave the appellant a $200 deposit check.

Mrs. Adams testified during trial that she told appellant the yard work had to be completed by the end of May, when she and her husband, George D. Adams, were leaving on vacation. Appellant assured Mrs. Adams he would begin the job no later than Saturday of the following week. The contract provided, however, that appellant would not begin work on this job until all his previous jobs were completed.

When appellant failed to begin work the following week, the Adamses attempted to contact appellant to inquire when he would begin the job. The Adamses made numerous telephone calls to appellant but each call was received by an answering service which took their messages. Appellant never returned their calls. Mrs. Adams testified she was aware appellant was working at a friend’s house in the neighborhood during this period of time.

On May 28, 1981, the Adamses sent a letter by certified mail to the appellant cancelling the contract and demanding return of their $200 deposit. The Adamses left on vacation for three weeks. They again attempted to reach appellant, unsuccessfully. They sent several letters to appellant threatening court action if their deposit was not returned. The appellant never replied to their letters. Mr. Adams went on several occasions to appellant’s place of business, but was unable to see the appellant. On one particular occasion, Mr. Adams spoke with Velma Andersen, the appellant’s wife. She informed Mr. Adams that the appellant had been seriously burned in a gasoline explosion in early June and he had not been able to work all summer. Mrs. Andersen told Mr. Adams that the appellant was not able to see him but that she would send the deposit check in the mail the next week. The Adamses never received the deposit check.

Tony Evetts testified he rented warehouse space to the appellant and that he found two letters the Adamses had sent to appellant in a filing cabinet belonging to appellant.

At this point in the trial, the appellant made a motion for a directed verdict on the grounds that the State had not proved a prima facie case of theft. The appellant also contended this case should be a civil action for breach of contract rather than a criminal prosecution for theft. The trial court denied this and overruled the appellant’s motion.

Velma Andersen testified she was the secretary for her husband’s business. She stated she received her husband’s phone messages and mail but never opened his mail. Mrs. Andersen remembered Mr. Adams had been to their house demanding the return of the deposit and threatening court action if it were not so returned.

The appellant stated at trial that he explained the terms of the contract in full detail to Mrs. Adams on the day it was signed. He testified some of his other jobs were extended which delayed the commencement of work on the Adamses’ yard. The appellant stated he received a telephone message from the Adamses cancel-ling the contract because they were leaving on vacation and requesting return of their deposit.

The appellant testified he was willing to return $130 of the Adamses’ deposit, but would not refund the entire $200 because the contract contained a 35% forfeiture clause. He stated when he learned that his wife had not sent the Adamses a check, he immediately sent a check to them which was returned refused.

I

Appellant contends in his brief § 13A-8— 4, Code of Alabama, is unconstitutionally vague in its application to this case, in violation of the contract clause of the United States Constitution, Article I, Section 10 and the Fourteenth Amendment to the U. 5. Constitution.

This court has held that constitutional rights must be seasonably raised in the lower court. Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981), writ denied, 408 So.2d 180 (Ala.1982). Since the appellant did not properly preserve this question for appellate review because he failed to raise the unconstitutionality of the statute at the trial level, we need not therefore consider this issue.

II

The appellant contends that the trial court committed reversible error by failing to instruct the jury on contract law. This court has held “in the absence of a request, objection, or exception, an alleged error in the trial court’s failure to instruct cannot be raised for the first time on appeal.” Sims v. State, 386 So.2d 767 (Ala.Cr.App.1980), writ denied, 386 So.2d 770 (Ala.1980). The appellant’s attorney failed to request instructions on the contract law at issue and did not reserve any exceptions after the judge’s charge to the jury, and therefore did not preserve this issue for appeal. Allen v. State, 414 So.2d 989 (Ala.Cr.App.), affirmed 414 So.2d 993 (Ala.1982).

Ill

The appellant’s principal contention is that the trial court committed reversible error in overruling his motion for a directed verdict on three grounds:

(1) the State did not show that the appellant had the necessary criminal intent to deprive the Adamses of their property;

(2) there was no deception on the part of the appellant, and,

(3) there was a contract entered into by responsible adults and which the appellant was not given an opportunity to perform, and moreover, this case should be a civil not a criminal matter. The language of § 13A-8-2, Code of Alabama, as that language was used in the instant indictment reads:

“A person commits the crime of theft of property if he:
(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or
(2) Knowingly obtains by deception control over the property of another with intent to deprive the owner of his property.”

A key word in § 13A-8-2, supra, is “deception” which occurs when a person knowingly “promises performance which the defendant does not intend to perform or knows will not be performed.” Ala.Code § 13A-8-l(l)(f). The appellant contends his failure to perform under the contract at issue does not prove his intent to deprive the Adamses of their property. The Code explicitly states “Failure to perform, standing alone, is not proof that the defendant did not intend to perform.” Ala.Code § 13A-8-l(l)(f). (Emphasis supplied).

In this case, there was more than a mere failure to perform. Not only did the appellant fail to perform his obligations under the contract, but he also never returned the Adamses’ telephone calls, refused to see Mr. Adams, and would not return the full amount of their deposit. The State’s evidence was ample to allow the jury to find deception on the part of the appellant.

The commentary to § 13A-8-2 through § 13A-8-5, Code of Alabama 1975, states the Code’s definition of theft of property removes the problems of the intent required for such crime. The language “to deprive” should be examined when dealing with intent. To deprive means “to retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return.” Ala.Code 1975, § 13A-8-l(2)(c). The appellant retained the deposit even when a demand for its return was made by the Adamses, and offered to return it only when court action was instituted and then only in the amount of 70% of the deposit. The 35% forfeiture clause is analogous to a penalty for the return of the deposit. The requirements of the statute were sufficiently proven by State’s evidence, and we believe appellant’s actions or inaction, as the case may be under the evidence, could reasonably leave the jury to conclude that appellant’s actions constituted theft of property as defined in Ala.Code § 13A-8-2. Craig v. State, 410 So.2d 449 (Ala.Cr.App.1981); Anderson v. State, 33 Ala.App. 531, 36 So.2d 242 (1948).

This court has consistently held that in a prosecution for theft, i.e., the issue of whether the appellant had the intent to deprive the victim of his property is a question for the jury. Barbee v. State, 395 So.2d 1128 (Ala.Cr.App.1981); Craig v. State, 410 So.2d 449 (Ala.Cr.App.1981). Whether or not the appellant intended to deprive the Adamses of their deposit was a question for the jury which it resolved against the appellant.

Therefore, the judgment of the lower court is due to be and is hereby affirmed.

AFFIRMED.

HARRIS, P. J., and BOWEN and BARRON, JJ., concur.

DeCARLO, J., dissents.