author: WILLIAM D. PAGE, Circuit Judge.

text:
    William ELMORE, III v. STATE.
    6 Div. 749.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-300.

      Ronda H. Lacey, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   WILLIAM D. PAGE, Circuit Judge.

Appellant was convicted of robbery in the first degree. Following proper allocution, a sentence of imprisonment for twenty years was imposed, such sentence to be served concurrently with another sentence previously imposed.

Appellant does not challenge the sufficiency of the evidence. A succinct statement of the facts will suffice for review.

At about 4:00 a.m. on September 9, 1980, two men dressed in hospital jackets entered the Zippy Mart in Ensley, Jefferson County, where Vivian Davidson was employed as cashier. One of the men brandished a pistol at Ms. Davidson and demanded money from her. The other man went behind the counter and removed money from the cash register. This activated an alarm which could not be heard within the store. After taking the money and threatening to harm Ms. Davidson if she called the police, the men sped away in a red and black automobile. The sum of $103 was taken.

Ms. Davidson called the police by telephone and gave descriptions of the men and the vehicle. Within minutes uniformed police officers arrived at the store and took Ms. Davidson to view two men and a vehicle stopped beside a street a few blocks from the store. The victim identified William Elmore, III and Calvin Eugene McBride as the men who had robbed her and she also identified the vehicle as the one that they had used to flee the scene of the robbery. Elmore and McBride were both arrested.

Officer John Rye of the Birmingham Police Department, was patrolling in his marked police vehicle at about 4:00 a.m. on the morning of the robbery. He heard a “BOLO” to be on the lookout for the men and vehicle described by Ms. Davidson. He saw a red and black vehicle occupied by two men dressed in hospital scrub jackets a few blocks from the scene of the robbery. He stopped the vehicle and placed the occupants in custody. Ms. Davidson was brought to the scene and she identified the two men as the persons who had robbed her.

After Elmore and McBride had been taken into custody, Ms. Davidson returned to the store and was determining the exact amount of money taken when she received a telephone threat from some unknown male who made threats against her if she were to testify and identify the robbers. The next day she received a similar call from an unknown female.

Counsel was appointed to represent appellant in District Court. A preliminary hearing was scheduled in District Court and continued on several occasions because Ms. Davidson did not appear in response to subpoenas issued at the request of the state and the appellant. Appellant and McBride were indicted by the grand jury on January 9, 1981, charged with robbery in the first degree. On January 28, 1981, and after indictment, the cases against both men were dismissed in District Court on motion of the State.

After indictment, appellant continued to be represented by appointed counsel. A petition for writ of habeas corpus was filed in Circuit Court together with a motion for reduction of bond. The sheriff of Jefferson County made his return pursuant to § 15-21-17, Code of Alabama 1975, answering that appellant was being held pursuant to two indictments charging robbery in the first degree and attaching copies of the indictments. A hearing on the petition was scheduled and appellant requested a subpoena to compel the attendance of Ms. Davidson to testify at the hearing. She did not attend. The writ of habeas corpus was denied but bond was reduced from $50,000 to $20,000.

Trial of the case was had upon the indictment and the plea of not guilty entered by the appellant.

I

Appellant first urges reversal on the ground that he was denied his Sixth Amendment right to confront his accusers since he was not afforded a preliminary hearing prior to the indictment. Ala.Code § 15-11-1 (1975). It has long been held in this jurisdiction that a preliminary hearing is not essential to criminal prosecution after indictment. Johnson v. State, 335 So.2d 663 (Ala.Cr.App.), cert. denied, 335 So.2d 678, cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976). The purpose of a preliminary hearing is to determine probable cause. The indictment satisfies this requirement. A repetitious inquiry to determine probable cause after indictment is not necessary. Scaife v. State, 337 So.2d 146 (Ala.Cr.App.1976); Ex parte Campbell, 278 Ala. 114, 176 So.2d 242 (1965); Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979); Ex parte Potts, 426 So.2d 896 (Ala.1983). It has long been held that an accused has no absolute right to a preliminary hearing in Alabama after an indictment has been returned by the grand jury. Hammond v. State, 354 So.2d 280 (Ala.Cr.App.1977); cert. denied, 354 So.2d 294 (Ala.1978), cert. denied, 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d 115 (1978).

II

After Ms. Davidson has testified on direct examination, and at the request of appellant, a hearing was held with the jury excluded. Appellant examined Ms. Davidson and she testified that she had not appeared at the preliminary hearing or at the habeas corpus hearing because of the threats made against her. It was also shown that she appeared for trial only because she had been brought to court by a law enforcement officer. Counsel for appellant advised the trial judge that it was his intent to bring out the fact that Ms. Davidson had failed to appear on several occasions. The judge advised counsel that such was not proper for presentation before the jury and would probably result in a mistrial. During the hearing Ms. Davidson testified she did not know who had made the threatening calls except that one was made by a black male and the other by a female. Upon resumption of the trial before the jury, the appellant did not attempt to bring up the subject of the threatening calls.

Appellant urges. prejudicial error in the action of the trial court in denying him the right to question Ms. Davidson in the presence of the jury on the subject of her failure to appear at pretrial hearings. Appellant claims that his cause was prejudiced when the state was allowed to argue that Ms. Davidson’s record was without blemish. The trial court heard considerable evidence outside the presence of the jury on the subject of her failure to appear. That an accused be allowed to show bias and prejudice on the part of a witness testifying against him is a rule of law in this jurisdiction. However, there must be a limit to which such questioning extends. The limitations placed upon the scope of evidence elicited to show bias and prejudice is within the sound discretion of the trial court, and his judgment will not be disturbed absent a clear abuse of discretion. Smith v. State, 30 Ala.App. 346, 5 So.2d 648 (1942); Broadway v. State, 35 Ala.App. 86, 45 So.2d 480 (1949). Cross-examination of the victim concerning her failure to appear at pretrial hearings, and the reasons for such failure would lead the trial far afield and burden the trial with remote issues that would shed no light on the guilt or innocence of the appellant. Denson v. State, 50 Ala.App. 409, 279 So.2d 580 (1973). The trial court was correct in ruling that the testimony was irrelevant and immaterial for the purpose of showing bias and prejudice on the part of the witness. The alleged error does not appear as a clear abuse of discretion to the injury of appellant. Battles v. State, 44 Ala.App. 635, 218 So.2d 695, cert. denied, 283 Ala. 711, 218 So.2d 697 (1968).

It should be noted that the testimony regarding the failure of the witness to appear was presented outside the presence of the jury. The trial court ruled such evidence would be inadmissible and would “probably result in a mistrial” if elicited before the jury. Appellant did not pursue that line of questioning before the jury.

Appellant argues as error that during closing argument the following occurred:

“MR. MAHON (Assistant District Attorney, in reference to Ms. Davidson):
She told you everything she knows and yet the defendant wants you to believe somehow or another she is the person that stole the money. If there was ever any blemish on her record whatsoever you would have known about it because she could have been—
“MRS. LACY (Defense Counsel):
“Objection, Your Honor. I was admonished not to go into those particular blemishes. I was admonished that there would be a mistrial if we went into that and I object to him going into it.
“THE COURT:
I sustain the objection. I sustain the objection. Let’s don’t go into that.”

The argument is presented that be-cause appellant was not allowed to show that Ms. Davidson failed to appear for pretrial hearings it was error for the prosecution to argue that her “record” was without blemish. The court sustained the objection by counsel for appellant. No motion for mistrial was made. Appellant cites as authority for reversal Pointer v. State, 37 Ala.App. 670, 74 So.2d 615 (1954). In that case, the prosecutor argued that if the prosecuting witness was not a person of good character, the defendant would have shown such to the jury. The trial court overruled objection to that line of argument. In reversing, the appellate court ruled that in overruling the objection, the trial court manifested its approval of such statements, and therefore the statements were, in effect, instructions to the jury that because the character of the prosecuting witness had not been questioned, the jury should assume that his character was good. In that case, defendant was charged with assault with intent to murder. The defense was alibi. Under that posture, evidence of the bad character of the prosecuting witness would not have been admissible since his character for peace and quiet would not have been in issue unless there was evidence to show the defendant acted in self-defense. It was thus improper for the prosecution to comment on the failure of the defendant to produce evidence which would have been inadmissible. Pointer, supra, is clearly distinguishable because in the instant case the court sustained the objection.

Appellant also cites Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948), 35 Ala.App. 256, 50 So.2d 767, rev’d, 255 Ala. 128, 50 So.2d 774, aff'd, 255 Ala. 209, 50 So.2d 776 (1951), for the proposition that the argument of the prosecutor would only be proper in response to argument made by the defense. In Jarrell the defense had called a vast number of witnesses who testified that the reputation of defendant for peace and quiet was good. The state did not attempt to show by any witness that such reputation was bad. One witness, a neighbor of the accused, was called by the state but was not questioned by either party concerning the reputation of defendant for peace and quiet. The trial court refused to exclude the argument of the prosecutor to the effect that the witness did not testify as to the good character of the defendant for peace and quiet. The appellate court held that the effect of the prosecutor’s remark was to criticize the defendant for failing to call as a character witness a person who had already testified on behalf of the prosecution. The argument was highly prejudicial and the failure of the trial court to exclude it from the jury was error. Again, the cited case is distinguishable because in the instant case the trial court sustained the objection.

The general rule is that improper argument of counsel is not ground for a new trial or the subject of review on appeal unless the defendant has moved that the offending remark be excluded from the jury’s consideration. Here, the trial judge sustained the objection of defendant. The judge was under no duty to exclude the argument ex mero motu even if it were improper. Cassady v. State, 51 Ala.App. 544, 287 So.2d 254 (1973); Liner v. State, 350 So.2d 760 (Ala.Cr.App.1977).

In the instant case appellant did not move to exclude the offending remark. The matter was presented to the trial court by a timely motion for new trial which was overruled. When the argument of the prosecutor is so highly prejudicial that the effect is ineradicable, it may be made the ground for motion for new trial. Johnson v. State, 272 Ala. 633, 133 So.2d 53 (1961). The prosecutor’s comment during closing argument was not improper. Even if it were, the argument was not of an ineradicable nature so as to require reversal. Argument of counsel must be viewed in the context of the heat of debate and the jury usually does so. Bullard v. State, 40 Ala. App. 641, 120 So.2d 580 (1960); Arant v. State, 232 Ala. 275, 167 So. 540 (1936). The argument of the prosecutor does not require reversal in this case. Bracewell v. State, 407 So.2d 827 (Ala.Cr.App.1979), remanded, Ex parte Bracewell, 407 So.2d 845, on remand, 407 So.2d 848, reversed, 407 So.2d 853, on remand, 407 So.2d 854, writ denied, 407 So.2d 854, vacated, 457 U.S. 1114, 102 S.Ct. 2920, 73 L.Ed.2d 1325 (1982); Vickerstaff v. State, 374 So.2d 443 (Ala.Cr.App.1979); Meredith v. State, 370 So.2d 1075 (Ala.Cr.App.1979).

III

Appellant also urges as error the denial of his constitutional right to confront the witness Davidson when she failed to appear at the hearing on his petition for writ of habeas corpus. The petition was filed after indictment preferred. The writ was denied. The record on appeal does not reflect the evidence presented on the hearing. The petition, the return of the sheriff, the denial of the writ, and the bond reduction are documented by the record. The fact that appellant had a subpoena issued for the appearance of Ms. Davidson at the hearing is also shown by the record. The return of the sheriff was adequate to show that appellant was in custody by virtue of proper process. Section 15-21-7, Code of Alabama 1975. There is nothing presented for review. Appellant did not appeal from denial of the habeas corpus. Carty v. State, 43 Ala.App. 57, 179 So.2d 333, cert. denied, 278 Ala. 707, 179 So.2d 335 (1965).

IV

Appellant contends that his constitutional rights under the Fifth Amendment were violated when he was put to trial in circuit court after the case had been nol-prossed in district court following indictment. In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), it was held that the Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. In the instant case no jeopardy had attached. Appellant was indicted. The case in district court was then nol-prossed. Jeopardy begins when a jury has been empanelled and sworn and the indictment read. Ex parte Collins, 385 So.2d 1005 (Ala.1980), 14 A.L.R. 4th 1006, on remand, 385 So.2d 1010 (Ala.Cr.App.). The arrest of defendant and docketing of his case for preliminary hearing did not place him in jeopardy. Champion v. State, 372 So.2d 1356 (Ala.Cr.App.1979); Hammond v. State, supra.

In a unique argument appellant urges that, because the robbery charge against Calvin McBride was nol-prossed in circuit court and McBride was not tried, the state is estopped to prosecute him. Able counsel for appellant candidly admits that a careful review of the cases in Alabama has not revealed authority for the argument. Appellant has not demonstrated that he was injured by the fact that Calvin McBride was not prosecuted. If the argument is to the effect that the action of the State in dismissing the case against McBride amounted to a purposeful and intentional discrimination violative of the equal protection clause of the Fourteenth Amendment, appellant has failed to prove the elements necessary to carry the burden. These elements include: (1) selectivity in enforcement, (2) selectivity that is intentional, and (3) selectivity based on some invidious or unjustifiable standard such as race, religion or other arbitrary classification. It is insufficient merely to show that other criminals have not been prosecuted. Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.1979), cert. denied, 446 U.S. 956, 100 S.Ct. 2929, 64 L.Ed.2d 815 (1980); and cases cited therein.

Mindful of the duty imposed upon the court, the entire record has been reviewed and no just cause for reversal has been found.

The foregoing opinion was prepared by Hon. WILLIAM D. PAGE, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

The judgment of the circuit court is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit-Judge.

license: Public Domain

text:
    Gary Wade WILLIAMS v. STATE.
    8 Div. 867.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-428.
    Fulton S. Hamilton, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit-Judge.

This is an appeal from two judgments of conviction and sentence based on two separate indictments, one for robbery in the first degree and the other for an attempt to commit the crime of rape, as defined in one respect by Alabama Criminal Code § 13A-6-61(a)(l) as follows:

“A male commits the crime of rape in the first degree if:
“He engaged in sexual intercourse with a female by forcible compulsion;

The alleged victim was the same person in the two offenses. According to the undisputed evidence, whatever happened as between defendant and the alleged victim occurred in the home of the victim, on the same day and within a few minutes of the same time.

Upon agreement between the State and defendant, with the approval of defendant’s attorney, the two cases were consolidated for trial before a jury. After a sentence hearing conducted after the verdicts, the court sentenced the defendant to imprisonment for fifty years in the robbery case and to ten years in the attempted rape case. Thereafter, it being shown to the court that a new attorney had been appointed to represent defendant after the verdicts of the jury, another sentence hearing was conducted with a new attorney present, which resulted in the imposition of the same sentences as before. The same attorney representing defendant on the second sentence hearing represents him on appeal in both cases, which continue to be consolidated in this Court.

No issue is presented on appeal as to the sufficiency of the evidence to support the verdict of the jury as to the robbery case. One of the two issues presented on appeal challenges the sufficiency of the evidence to support the verdict of guilt of an attempt to rape. We will limit our narrative of the evidence to that part thereof pertaining to the attempted rape case. We note beforehand that defendant stoutly denied as a witness on the trial that he was ever with the alleged victim at any particular time, that he was ever in her home, and that he was ever guilty of any offense against her. There was no contention on the part of the defense that the alleged victim was not robbed as she stated in her testimony. As to her testimony as to what occurred in her home, the defendant’s contention as to the factual issue presented was that her testimony charging the de-' fendant was a case of mistaken identity by the victim of the robbery.

As is often true in prosecutions for rape or attempted rape, the only eyewitness testimony presented by the State is that of the victim herself, and as the defendant in the instant case denied his presence at the time, one must look exclusively to the testimony of Mrs. Sally Gerry to determine whether an attempt to rape occurred. According to her testimony, she lived at 706 Iris Lane on January 30, 1980, and she or her husband had previously run an advertisement in one of the daily papers advertising his or her automobile for sale. While she was alone in the house about noon on January 30, a man telephoned inquiring about the automobile. She discussed with him the “price” and “some of the features on the car and things.” About 1:00 P.M. the man came to her home. She positively identified the man as Gary Wade Williams, the defendant, who knocked on the door and made known that he wanted to look at the car. Without then letting him in the house, she told him to look at the car, which he apparently did, and then returned to the door and stated he would like to drive the car. She replied that as soon as she put her baby down, which she then had in her arms, she would get in the automobile with him. She put her then sleeping baby in a swing and then, accompanied by her twenty-two-month-old child, rode around a short distance in the automobile. The man expressed considerable interest in the automobile, and when they returned to the house he said, “Well, I really like it. I think this is just what I am looking for.” And then he said, “Can I use your phone?” Having indicated her permission, they went into the house. Her testimony continued as follows:

“... So he went in and he called. He went through the living room into the kitchen. Our telephone was down in the den. It was a remodeled garage. I stayed up in the living room and left the door open a little bit at first. Then he came back in and said that his friend was going to come by and pick him up.”

According to Mrs. Gerry’s further testimony, considerable time passed without anyone else coming to the house. The man made several efforts to call someone again; he dialed the telephone several times without any apparent success. After some time, he displayed a handgun and ordered her to put the two-year-old son in a room and “make sure he stays in his room.” She “put the baby down real fast” and the “twenty-two-month-old in his room.” When she returned from spanking the older child “to make sure he stayed in the room,” the man said, “I want your money.” After she offered him the contents of her purse, he replied that he knew that there was more money in the house. She testified:

“... I can’t remember exactly how he put it. He said, ‘There has to be something of worth in here.’ And he said, ‘Let’s go back to the bedroom.’ I said, ‘My husband has a jar of money in there and it’s only change also.’ I know he had taken it out before and we had about — everytime we had taken the money out we had about $40 or $50 in there. He said, ‘Just go on back there.’ At this time he had the gun out of his coat and he was pointing it toward me. We walked back into the bedroom and I showed him the can. He said, ‘I don’t want that.’ Then he said, ‘Take off your clothes.’ I said, ‘Please don’t do this.’ He said, ‘Take off your clothes.’ Then I started telling him, you know, that I had just had the baby and that I had just gotten out of the hospital just the week before and, you know, that I was hurting real bad and I just didn’t want him to do anything. Then he took his arm and he pushed me on this arm. He pushed me on the bed. When I was on the bed he said, ‘Take off your clothes.’ I said, ‘Please don’t do this.’ I told him that my husband would come home at anytime because he was a coach. He knew the car was for sale and he would come home at any time. Then I got up on the other side of the bed and he went back around. All this time- he was still holding the gun on me. He said, ‘Take off your clothes.’ I said, ‘Please, that money is probably — I have no idea how much it is, but it could be at least $60 or more.’ At that time I didn’t know that my husband had put all those quarters in there. There was at least 110 that he had just put in. So I went over there and I told him — I said, ‘Please take this, and you can have the microwave and you can have the TV. You can have anything you want, but please don’t do this.’ We were over on the other side of the bed and I was holding up the money and I said, T can put it in a sack for you.’ When I did that he started to reach out for me again and I reached for him and I held his hand for just a moment and I looked right into his eyes and I said, ‘Please don’t do this,’ and I begged him. Then he looked at me and said, ‘All right. Go get a sack.’ So I went to get the sack and I put it in there real fast. He put it underneath his coat and he said, ‘You get into the room with your little twenty-two-months-old boy and you stay in there and don’t come out for at least 10 minutes.’ Then he said, ‘If you call the police, then I’m going to come back and burn your house down and you will never know.’ ”

Alabama Criminal Code, § 13A-4-2(a) provides:

“A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”

There can hardly be any question as to the existence of the required overt act. The alleged victim?s testimony that “He pushed me on the bed,” when considered with all the other circumstances, suffices. Whether there was an intent to commit the crime of rape requires further consideration, especially so in view of the fact that unquestionably the assailant had during most of the time involved the intent to commit the felony of robbery, which he accomplished. We are favorably impressed by the strong argument in the brief of counsel for appellant to the effect that the evidence failed to prove beyond a reasonable doubt the defendant had the intent to rape the alleged victim, but we are not so favorably impressed as to conclude that a jury issue as to such intent was not presented by the evidence. We fully realize the difficulty of fathoming the mind of defendant to such an extent that it can be determined with absolute certainty that his conduct included an intent by him to engage in sexual intercourse with Mrs. Gerry by forcible compulsion, but we think the evidence shows conclusively that she thought that he had that intent and that what she thought prompted her to plead with him and to pay him not to do so. No human being is in a better position to determine whether such intention existed than the alleged victim and her aggressor. Having no testimony from the aggressor as to his intention, the only reasonable conclusion, we think, is that some time during the hassle between the two the man with the gun intended to rape the defenseless woman he had pushed on the bed. The trial court was not in error in refusing to grant defendant’s motion to exclude the evidence in the case based on the indictment charging attempt to commit rape or in the submission of that issue to the jury for its determination.

The only other contention of appellant is that the “trial court erred when it failed to give the submitted written jury instructions, particularly those numbered 17, 20 and 22.” We find no charge “numbered 17” in the record proper or in the transcript of the proceedings. Charges No. 20 and No. 22, refused by the trial court, are as follows, respectively:

“I charge you, the jury, that if the circumstances as proven are capable of explanation of any reasonable hypothesis, consistent with the defendant’s innocence and if the circumstances are capable of such explanation, then the defendant should be acquitted.
“The presumption of innocence is legal proof of innocence. The defendant comes into court clothed with the presumption of innocence, and that presumption of innocence remains with him throughout the case until overcome by the prosecution. If after considering all the evidence, you believe a material elements of any charge with which this defendant is charged has not been proven beyond a reasonable doubt, then you must acquit the defendant.”

As to defendant’s requested Charge 20, we compare it with the following sentence in the court’s oral charge:

“The circumstances must exclude every other reasonable hypothesis except that of the defendant’s guilt, and unless the circumstances do that beyond a reasonable doubt and to a moral certainty then the defendant cannot be convicted.”

The oral charge contained substantially the same language as Charge 20, which renders innocuous the failure of the court to give the Charge 20.

Defendant’s requested Charge 22, which was refused, contained some obviously misplaced words and confusing language. Furthermore, the first sentence is inaccurate in stating that the “presumption of innocence is legal proof of innocence.” This goes too far. The presumption is to be considered as the equivalent of “evidence” of innocence, but it does not constitute “proof” of innocence. The court gave in its oral charge the law on the subject, as shown in part by the following:

“... It is a matter of law and a matter of evidence in the defendant’s favor that he comes into this trial presumed to be innocent. That is a Constitutional presumption that each of us have. When a person is charged with a crime and placed on trial for that crime, he is presumed to be innocent until such time as the State proves beyond a reasonable doubt and to a moral certainty that the defendant is guilty of the crime with which he has been charged .... ”

The trial court was not in error in its refusal of defendant's Charge 22.

The judgments of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Gigi Elijah CARROLL v. STATE.
    4 Div. 137.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-290.

      Jack W. Smith of Smith & Smith, Do-than, for appellant.
    Charles A. Graddick, Atty. Gen., and H. William Wasden, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant, Gigi Elijah Carroll, was indicted by the Houston County Grand Jury during the November, 1982 term on a charge of theft in the second degree. On December 13, 1982, she was arraigned and entered a plea of not guilty and not guilty by reason of insanity. Trial commenced on the same day and the jury found her guilty as charged in the indictment. Appellant was adjudged guilty in accordance with the verdict and was sentenced to twelve years’ imprisonment in the penitentiary pursuant to the Habitual Felony Offenders Statute § 13A-5-9, Code of Alabama 1975.

At trial, Fred Corbin, security manager of the southwest K-Mart department store in Dothan, testified regarding events of November 4, 1982. He stated that, while on duty at K-Mart, he observed Mrs. Carroll remove items of clothing from the racks and place them under the lid of a baby carriage and on her person. He followed Mrs. Carroll as she left the store through the service desk area without paying for the merchandise. In the parking lot outside of the store he stopped her and requested that she return to the store with him whereupon she attempted to evade him and rid herself of some of the merchandise. Both she and her baby carriage were, however, returned to the store’s security office where the merchandise was removed from the carriage and from Mrs. Carroll’s person.

The items, as evidence by the prices on the sales tickets, had a collective value of $86.80. Mr. Corbin testified that sales tickets on items sold at K-Mart were routinely torn in half at the time of sale and he identified three photographs depicting the items taken with sales tickets intact. He identified the merchandise in the photographs as the property of K-Mart Corporation and stated that Mrs. Carroll had no authority or permission to take the merchandise.

These facts were uncontroverted by Mrs. Carroll who testified in her own behalf. Her only defense was insanity. Other witnesses for the defense were her mother and her husband.

Appellant raises five issues on appeal. The first issue is whether Mrs. Carroll should have been arraigned after the jury had been impanelled even though a delay in arraignment was at the request of defendant’s attorney.

This court, in Headley v. State, 51 Ala. App. 148, 283 So.2d 458, appeal after remand, 55 Ala.App. 303, 314 So.2d 905 cert. denied, 294 Ala. 758, 314 So.2d 908 (1973), observed that the only purpose of the arraignment subsequent to the abrogation of common law formalities is to obtain from the accused his answer to the indictment. Furthermore, in Newsome v. State, 49 Ala.App. 248, 270 So.2d 680 (1972), where appellant failed to appear for his arraignment and was not thereafter called upon to answer the charges against him in person this court stated that such an oversight could have been cured at any time before or during the trial before the jury retired. It is clear that the timing of Mrs. Carroll’s arraignment was not error and that she was not thereby prejudiced.

The second issue appellant raises on appeal is whether the denial of a continuance for the purpose of allowing further psychological evaluation of appellant was error.

It is well settled law that the disposition of a motion for continuance is vested in the sound discretion of the trial court and that its ruling will not be disturbed on appeal, except upon a clear showing of abuse of discretion. Busby v. State, 412 So.2d 837 (Ala.Cr.App.1982); Avery v. State of Ala., 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1939). It is within the sound discretion of the trial judge to deny a motion for continuance for the purpose of obtaining further study and evaluation of a defendant. Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.1979). There is no obligation of the trial court to grant a continuance for the purpose of preparing an insanity defense, Lee v. State of Alabama, 386 F.2d 97 (5th Cir.1967), and, lastly, the defense of not guilty by reason of insanity does not present the issue of the mental competency of the accused to stand trial. Hawkins v. State, 267 Ala. 518, 103 So.2d 158 (1958). We find no evidence in the record indicating an abuse of discretion by the trial court.

The third issue appellant raises is whether a question by the prosecutor at trial revealing that defendant had committed a prior crime should have resulted in a mistrial or admonishment to the jury. The sequence of questions directed to appellant's mother and her responses leading up to the question at issue were as follows:

“Q. Do you know what all she has been doing the last year up here?
“A. She has done so many things that I can’t believe it.
“Q. Criminal things?
“A. Yes. And don’t remember them.
“Q. And, don’t remember them?
“A. Eighteen years, she never done anything. She had a clean record.
“Q. For eighteen years she had a clean record?
“A. She never done—
“Q. Ma’am, you don’t know what has occurred up here, what her record has been in thé last period of time?
“A. Her husband told me about it when he called me.
“Q. The fact that she has been — in fact, she was sentenced on September 28th of 1982 for Theft of Property in the Second Degree?”

The general rule regarding prior crimes of defendants at trial is stated by C. Gamble, McElroy’s Alabama Evidence, § 69-0.1 (3d ed. 1977) as follows: “On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character. ..” The question challenged by appellant, however, was put to appellant’s mother in an attempt to impeach her credibility as a witness and not to show Mrs. Carroll’s bad character. Defense counsel’s objection was nevertheless sustained. In addition, Mrs. Carroll took the stand in her own defense putting her character at issue and giving testimony regarding prior crimes. We find no error in the trial court’s failure to declare a mistrial or admonish the jury regarding the question of the prosecutor.

The fourth issue appellant raises is whether the verdict was against the evidence or against the weight of the evidence. This court held in both Hughes v. State, 412 So.2d 296 (Ala.Cr.App.1982) and in Williams v. State, 335 So.2d 249 (Ala.Cr.App.1976) that when there is legal evidence from which the jury can infer guilt of the accused the verdict will not be disturbed. The record in this case reveals ample evidence by which the jury could have inferred guilt of the accused.

The final issue appellant raises is whether Alabama’s Habitual Offender Statute is constitutional as applied to the sentence given to appellant. The constitutionality of this statute has been affirmed on numerous occasions by this court, most recently in Weaver v. State, 437 So.2d 626 (1983). Mrs. Carroll received a twelve-year sentence in this case and as she could have received a twenty-year sentence this does not appear to be a harsh application of the Habitual. Offender Statute.

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

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Willie Curt WALKER v. STATE.
    6 Div. 81.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-313.

      John R. Hollingsworth of Hollingsworth & Clary, Fayette, for appellant.
    Charles A. Graddick, Atty. Gen. and George Hardesty, Jr., Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of attempted first degree rape and sentenced to fifty years in the penitentiary. He now brings this appeal.

Appellant first argues that pre-trial photographic identifications made by the State’s witnesses were tainted. In support of his contention, appellant asserts that the witnesses were initially shown only two black and white photographs. It should be pointed out, however, that despite appellant’s assertions, the record is not clear as to the number of photographs displayed to the witnesses during the initial identification. Additionally, whether appellant’s photograph was among those displayed was never established at trial. Finally, one of the State’s two witnesses did not even make an identification at that time and the other was unsure of the identification she made. There is nothing in the record to indicate that the procedures used by the police were suggestive, and the mere fact that a small number of photographs were used during the photo spread will not in and of itself taint the results of that spread. Altman v. State, 399 So.2d 928 (Ala.Cr.App.1981).

The next issue is whether the State proved venue. Sufficient proof of venue was made through the testimony of witness Mary Rice who, upon examination by District Attorney Johnston, stated:

“Q. You work here in Fayette County?
“A. Yes, sir.
“Q. Where are you employed?
“A. Fayette County Nursing Home.
“Q. Did you work there in June of this year?
“A. Yes, sir.”

The incident in question. occurred at the Fayette County Nursing Home. When the State offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question becomes one for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969).

The next issue involves the sufficiency of the evidence offered to prove the offense charged in the indictment. The indictment reads in pertinent part that “Willie Curt Walker did with intent to commit the crime of Rape in the first degree ... attempt to engage in sexual intercourse with Cora Haley, a female, by forcible compulsion .... ” Witness Sara Moore testified that she heard screams coming from one of the rooms in the nursing home and so proceeded to look for the source. She came to the room of Cora Haley, now deceased from natural causes, and saw a man on the bed with her. She further testified that Mrs. Haley’s clothes were pulled up above her neck, a pillow was over her head, the door to the room was tightly shut when it should not have been, and the man’s pants were unbuttoned. The evidence from this witness alone was certainly sufficient to prove a prima facie case.

Appellant next argues that his motion for a new trial was improperly denied because the evidence was not sufficient for the jury to find him guilty beyond a reasonable doubt and because there existed newly discovered evidence. In this case, the appellant used the defense of alibi and presented a strong ease in support of his alibi. The testimony of his witnesses was in direct conflict with the testimony of the State’s witnesses. Yet, the State’s witnesses made a positive identification of appellant as the man they saw leaving Mrs. Haley’s room after the attack. The State presented sufficient evidence upon which the jury could base its verdict. Willcutt, supra.

Appellant’s assertion that there was newly discovered evidence revolves around the fact that another man, similar in appearance to appellant, was seen at the nursing home that night by some of the employees but that these same employees never saw appellant. First, it should be noted that the State’s witnesses were shown the second man shortly after the incident occurred, and they concluded that he was not the man in Mrs. Haley’s room. Secondly, the fact that this second man was present at the nursing home that night was known by almost everyone involved in the case, and testimony in regard to his presence could have been discovered prior to trial through minimal diligence. The granting of a motion for new trial based on newly discovered evidence rests within the discretion of the trial court. Page v. State, 273 Ala. 5, 130 So.2d 227 (1961). There was no abuse of that discretion here.

The last issue raised was that the State failed to lay a proper predicate before allowing a witness to refer to notes. However, C. Gamble, McElroy’s Alabama Evidence § 116.02(6) (3d ed. 1977), says “A witness may refer to a writing for the purpose of refreshing his recollection without first, as a condition precedent, having shown that it is necessary for his recollection to be refreshed.” Appellant also complains that he was not allowed to see the notes, but that issue was not properly preserved as there was no adverse ruling by the court.

For the foregoing reasons, the judgment of the lower court is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Alice Marie WYLLIE, alias v. STATE.
    1 Div. 522.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-421.

      James R. Owen, E.E. Ball, and David A. Simon for Owen & Ball, Bay Minette, for appellant.
    Charles A. Graddick, Atty. Gen., and Gregory J. Robinson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Alice Marie Wyllie was convicted of murdering her husband, William Phillip Wyllie, by shooting him with a 16-gauge shotgun. She was, subsequently, sentenced to life imprisonment.

On March 9, 1982, the appellant shot and killed her estranged husband, William Phillip Wyllie. The circumstances surrounding this shooting incident were in dispute at trial.

Lieutenant Jerry Anderson and Sergeant Jean White of the Fairhope, Alabama, police department testified that, shortly after the shooting, the appellant drove to the Fairhope Police Department and reported to them that she had just shot her husband. She gave no explanation for the shooting. She gave Sergeant White the shotgun that she had used and a box of shotgun shells.

Lieutenant Anderson drove to the victim’s home where he found the victim, as the appellant had described, lying on his back near the driveway. The victim was dead when Anderson arrived. The cause of death was a combination of injuries caused by gunshot wounds to the victim’s left leg, just below the knee, and to the left side of the victim’s chest. The latter wound was inflicted from a distance of eight to eleven feet.

Paul Buck testified that on the day of the shooting, he had solicited the assistance of Mark Wyllie, the son of the appellant and Mr. Wyllie, to move an ice machine. He arrived at the Wyllies’ home at about 10:45 a.m. to pick up Mark.

The appellant, who was not living there at the time, arrived at the residence at about the same time and asked Buck if he was there to pick up some lumber. After he replied “no” the appellant told him that her husband had stolen forty-four thousand dollars worth of lumber from her and that she was going to put a stop to it. She further explained that when she got through there would be a bloody mess. ⅛ Buck and Mark left, but returned a short time later and told Mr. Wyllie what the appellant had said.

The appellant claimed that the shooting was justified in self-defense.

She testified that she had filed for divorce two years prior to the shooting, but that the divorce proceedings were never finalized. She moved out of the family home (the scene of the instant shooting) because Mr. Wyllie and her son, Mark, had threatened to kill her, and Mark had beaten her.

Although she did not deny shooting her husband, she did deny making the statements to Buck which implied a motive for the shooting and her intent on the day of the shooting. She explained that she merely asked Buck not to “bother” her lumber.

After her conversation with Buck, she left and picked up J.C. Parker, a carpenter, who had agreed to help repair some of her rental property. She returned with Parker to the Wyllies’ home. The appellant testified that when they arrived, Mr. Wyllie told her he was going to cut her throat. Mr. Wyllie, eventually, got “real loud.” Shortly thereafter, Parker left to get his truck to transport the lumber needed for the rental repairs. While the appellant waited in her car for Parker to return, Mr. Wyllie “came at her.” She feared for her safety because he had his hand in his pocket, and she knew that he usually carried a knife. When at her request, he would not stop running toward her, she loaded her shotgun and fired the shot that hit him in the leg. Because that shot did not stop him, she moved behind her car and shot him again in the chest. She testified that she could not really see him when she fired the second shot because she was blind in her right eye.

On cross-examination the appellant stated that she could not have driven away and avoided the fatal conflict, because her arthritis prevented her from reacting quickly enough to move from the passenger’s side of her car and over the shotgun to the driver’s seat in time to drive away.

A defense witness, Charles Whatley, verified that Mr. Wyllie usually carried a knife. Another defense witness, Grady Gibson, confirmed appellant’s testimony concerning an incident nine months before the shooting, when Mr. Wyllie had beaten the appellant with his fists.

J.C. Parker testified in rebuttal that he was on the premises when the appellant shot her husband. Although his back was turned, Parker heard Mr. Wyllie say “You can’t have that lumber, that’s mine,” after which he heard the first gunshot. He turned around in time to see the appellant fire the second shot as Mr. Wyllie was falling to the ground. He testified that Mr. Wyllie was not charging the appellant when she fired the second shot and that she did not fire the second shot over the top of her automobile, as she had claimed.

Neither a knife nor any other weapon was found on or near the victim after the incident. The appellant, in fact, admitted that she never saw any such weapon.

Several character witnesses testified for the appellant and several rebuttal witnesses testified that the appellant had a reputation for being mean and violent.

Cathy Stewart was called as a hostile witness by the state. She denied telling the authorities that the appellant told her that she, the appellant, planned to kill Mr. Wyllie. This denial was impeached by members of the Baldwin County District Attorney’s Office, who testified that Stewart had, indeed, told them that the appellant said she planned to kill Mr. Wyllie.

The sufficiency of the evidence is not challenged on appeal.

The appellant contends that the trial court erred in permitting the state to examine Cathy Stewart as a “hostile” witness and to impeach her testimony with other witnesses.

Cathy Stewart was called by the state as a rebuttal witness. She was not called by the state during its case in chief, nor as a witness for the appellant. Before she was called as a witness in rebuttal, a conference was held out of the jury’s presence to qualify her as a “hostile” witness. The prosecution explained that, a few days after the shooting incident, Stewart, appellant’s hairdresser, told members of the Fairhope District Attorney's Office that, prior to the shooting, the appellant had told her, that she, the appellant, intended to kill Mr. Wyllie. This prior statement was verified in chambers by the assistant district attorney to whom Stewart, allegedly, made the statement. The prosecution further explained that it would have called Stewart during its case in chief except for the fact that it learned, during the course of the trial, that Stewart had decided to deny that she told the authorities about appellant’s threat. Because of Stewart’s business connections with the appellant, as appellant’s hairdresser, and because of the expected change in Stewart’s testimony, the prosecution asked the trial court to designate Stewart a “hostile” witness so that it might, in effect, cross-examine her and impeach her, if she denied making the prior statement concerning appellant’s alleged threat against Mr. Wyllie. The state further explained that this information was originally intended as evidence of appellant’s intent, to refute appellant’s claim of self-defense. In light of the evidence proffered by the state in chambers, the trial court permitted the state to examine Stewart as a “hostile” witness.

The trial court did not err in designating Stewart a “hostile” witness. Such a determination was within the sound discretion of the trial court, and, under the circumstances herein presented, there was no abuse thereof. Anderton v. State, 390 So.2d 1083 (Ala.Cr.App.), cert. denied, 390 So.2d 1087 (Ala.1980); Lewis v. State, 414 So.2d 135 (Ala.Cr.App.), cert. denied, 414 So.2d 140 (Ala.1982); but see, Wiggins v. State, 398 So.2d 780 (Ala.Cr.App.), cert. denied, 398 So.2d 783 (Ala.1981), and Walker v. State, 416 So.2d 1083 (Ala.Cr.App.1982) (where different facts and circumstances evidenced that certain witnesses were not “hostile”).

After Stewart had been confronted with her alleged prior statement and had denied that appellant had made the threat and had further denied that she, Stewart, had told the authorities of such a threat, the state impeached her by presenting both witnesses to her prior inconsistent statement. They testified in the jury’s presence that a few days after the shooting, Stewart told them of appellant’s threat. The appellant contends that the use of these two impeaching witnesses was a violation of the rule prohibiting impeachment of one’s own witness.

“It is well settled in Alabama that if a party’s own witness denies having made a prior inconsistent statement, testimony from another witness that he made the statement is not admissible.” (Emphasis supplied). Harris v. State, 428 So.2d 124, 125 (Ala.1983), affirming, 428 So.2d 121 (Ala.Cr.App.1981), citing Randolph v. State, 331 So.2d 766 (Ala.Cr.App.), cert. denied, 331 So.2d 771 (Ala.1976); and Isbell v. State, 57 Ala.App. 444, 329 So.2d 133, cert. denied, 295 Ala. 407, 329 So.2d 140 (1976). In the usual case a party placing a witness on the stand “thereby vouches for his credibility, and cannot impeach his own witness.” See, Ward v. State, 376 So.2d 1112, 1116 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979).

This rule has been consistently applied where a party, during direct examination of its own witness, is “surprised” by testimony that is inconsistent with prior statements or prior testimony from that witness. See, Randolph v. State, supra; Harris v. State, supra. When a party’s own witness gives testimony inconsistent with a prior statement, the “surprised” party may then be permitted to “interrogate him, lead him, in effect cross-examine him, in order (1) to refresh the recollection of the witness or (2) to show surprise of the party who called the witness,” Randolph v. State, supra, but he is not permitted to impeach his witness with other witnesses.

In the instant case, however, the state did not call Stewart as its own witness, and, consequently it never “vouched for” Stewart’s credibility. It presented Stewart as a “hostile” or adverse witness for examination purposes, and had her so designated by the trial court. Under these circumstances, where a witness has been properly declared “adverse” or “hostile,” prior to examination before the jury, that witness may be treated by the calling, or presenting, party as a witness for the opposition. Anderton v. State, supra. “This allows the party calling the adverse witness to examine the witness by use of the tools available to him on cross-examination including contradiction and impeachment.” Anderton v. State, 390 So.2d 1083, 1086, supra; see also, Lewis v. State, supra; Moulds v. State, 426 So.2d 942 (Ala.Cr.App.1982). It is, of course, proper impeachment of an opponent’s witness to prove prior inconsistent statements with the testimony of impeaching witnesses. Bythewood v. State, 373 So.2d 1170 (Ala.Cr.App.), cert. denied, 373 So.2d 1175 (Ala.1979); Allen v. State, 390 So.2d 676 (Ala. Cr.App.1980), and cases therein cited.

Although the state in Anderton did not have to resort to the use of impeaching witnesses (because the “hostile” witness admitted the prior inconsistent statements and attempted to explain them to the jury) Anderton, nevertheless, paved the way for the use of impeaching witnesses in the instant case. As is the case with a court’s witness, the examination of a “hostile” witness, as authorized by Anderton, can be justified “in the interest of truth and justice” within the sound discretion of the trial court because the so-designated “hostile” witness “may be able to shed light upon the issues.” See, Anderson v. State, 35 Ala.App. 111, 44 So.2d 266 (1950); Kissic v. State, 266 Ala. 71, 94 So.2d 202 (1957); Moulds v. State, supra.

Impeachment of a designated “hostile” witness, pursuant to the Anderton rule, is also consistent with the liberal impeachment now authorized in federal courts. See, Fed.R.Evid. 607.

Curiously, the Anderton rule creates an obvious distinction between the pre-desig-nated “hostile” witness, who can be impeached with other witnesses, and the “surprise” witness, who, because he has already been “vouched for,” cannot be impeached with other witnesses. Such a distinction could be eliminated by the adoption of a rule similar to the federal rule on impeachment of witnesses. See, Fed.R. Evid. 607.

In light of Anderton and its progeny, we must conclude that the trial court did not err in permitting the state to impeach Stewart with other witnesses.

The appellant further contends that the trial court erred in refusing to give her written requested charges on the lesser included offenses of manslaughter and criminally negligent homicide. The trial court, after reviewing the requested charges, told the appellant, before it gave its oral charge to the jury, that no lesser included offense instructions would be given because the evidence “did not merit giving of the same.” The appellant excepted to this ruling.

Lesser included offense instructions, generally, shall not be given “unless there is a rational basis for a verdict convicting the defendant of the included offense.” Ala.Code § 13A-l-9(b) (1975); Pennell v. State, 429 So.2d 679 (Ala.Cr.App.1983).

The trial court, apparently, ruled that there was no “rational basis” for a verdict of manslaughter or criminally negligent homicide.

The trial court was correct in ruling that the evidence did not support a charge on criminally negligent homicide. There was no evidence whatsoever that appellant’s actions were the result of “criminal negligence,” as required in § 13A-6-4(a), Code of Alabama 1975, and defined in § 13A-2-2(4), Code of Alabama 1975. The state’s evidence proved that the appellant “intentionally” shot and killed Mr. Wyllie without justification or provocation. The appellant never denied that she “intentionally” shot and killed him. Her evidence tended to prove only that she shot him in self-defense. No theory of the evidence would have supported a charge on criminally negligent homicide. See, Phelps v. State, 435 So.2d 158 (Ala.Cr.App.1983).

The trial court did err, however, in ruling that the evidence did not support a charge of manslaughter.

In explaining her theory of self-defense, the appellant testified that, when she arrived at the Wyllies’ home with Parker, Mr. Willie threatened to cut her throat with his knife. She stated that she believed this threat was real because he had beaten her before and because he always carried a knife. She explained that after she had retreated to her car and Parker had started home to get his truck, Mr. Wyllie ran toward her with his hand in his pocket. She feared that he was about to make good his threat. She was unable to slide over to the driver’s side of the car and drive to safety, but she was able to load her shotgun and protect herself. She stated that when Mr. Wyllie, at her insistence, would not stop his charge, she fired at his feet to stop him. She then backed around behind her car and, because the first shot did not stop him, she fired again at close range. She indicated that she did not actually see Mr. Wyllie at the instant of her second shot because he was on her blind side. As soon as she realized she had stopped her husband’s alleged attack, she drove to the police station for help. She admitted, however, that she never saw the knife with which Mr. Wyllie had, allegedly, threatened her.

Appellant’s testimony was presented in support of her claim of self-defense to prove that she was, indeed, justified in killing her husband. Implicit in appellant’s version of the facts was the theory that she was provoked by her husband’s imminent attack upon her. If believed, appellant’s version of the facts might have provided a “rational basis” for a conviction of manslaughter pursuant to § 13A-6-3(a)(2), Code of Alabama 1975. But see, Pennell v. State, supra (evidence did not justify a manslaughter instruction). However incredible appellant’s version of the facts might have been, in light of the state’s convincing evidence to the contrary, there was evidence of sufficient provocation to reduce the offense from murder to manslaughter. See, Reeves v. State, 186 Ala. 14, 65 So. 160 (1914); Roberson v. State, 217 Ala. 696, 117 So. 412 (1928). Under these circumstances the jury would have been authorized to find the appellant guilty of only manslaughter, as the result of an imperfect claim of self-defense.

Although the labels have now changed with the restructuring of homicide offenses in Alabama’s new Criminal Code, the analy-ses applied in Reeves and Roberson still apply. The factual circumstances of Roberson, wherein the defendant claimed self-defense and provocation for shooting his victim, are very similar to those of the instant case. The Roberson court emphasized that “a defendant who claims self-defense is not thereby precluded from asserting that the homicide was committed under circumstances reducing it to manslaughter, where the evidence before the jury would so authorize.” The weight and credibility of appellant’s evidence was a matter exclusively within the province of the jury and a proper manslaughter charge was warranted. Dennis v. State, 112 Ala. 64, 20 So. 925 (1896); Roberson v. State, supra. Although the new code restructuring of homicide offenses has helped somewhat, the difficulty of distinguishing between murder and manslaughter in any given case still exists. Therefore, it is still much the safer rule to charge upon all the degrees of homicide included in the indictment when a party is on trial for murder. Dennis v. State, supra; Reeves v. State, supra; Roberson v. State, supra; Phelps v. State, supra, and cases therein cited.

The trial court heard appellant’s evidence of self-defense and thoroughly instructed the jury as to the proof necessary to support such a defense and as to limitations, including the “duty to retreat,” that might negate it. The same evidence that warranted instructions concerning the elements of self-defense and appellant’s “duty to retreat” also warranted instructions on the lesser included offense of manslaughter.

Although a proper manslaughter charge was warranted, appellant’s written requested charges covering manslaughter would, ordinarily, have been justifiably refused because they neither defined the offense nor explained the proof necessary for a manslaughter conviction. Chavers v. State, 361 So.2d 1106 (Ala.1978), reversing, 361 So.2d 1096 (Ala.Cr.App.1977). In Chavers, the requested charge merely stated that the lesser included offense, second degree manslaughter, was included in the charge against the defendant. Nevertheless, the Alabama Supreme Court ruled that the failure to give this “simple” charge was reversible error. The court’s ruling was based upon criticized precedents and the fact that the defense attorney specifically excepted to the trial court’s refusal to give his requested charges and excepted to the trial court’s failure to instruct the jury on the offense of second-degree manslaughter. See, Chavers v. State, supra, and specific cases therein cited.

As in Chavers, appellant’s requested manslaughter charges merely stated that manslaughter was an offense included in the charge against the appellant. On the authority of Chavers, we must, therefore, hold that even though the requested charges were “simple,” the trial court committed reversible error in refusing to charge on manslaughter.

The state argues that, pursuant to Allen v. State, 414 So.2d 993 (Ala.1982), affirming, 414 So.2d 989 (Ala.Cr.App.1981) and the resulting new temporary rule of criminal procedure, A.R.Crim.P.Temp. 14, the appellant failed to properly preserve this issue for our review. The state correctly asserts that the appellant was required to state the matter to which she objected and the grounds of her objection. Allen v. State, supra.

The appellant contends, and we agree, that she sufficiently stated, to the trial court, “the matter to which she objected” when, after the trial court stated that it would not give any lesser included offense instructions, she reserved an exception thereto, and, subsequently, excepted to the trial court’s refusal of her requested charges. See, Johnson v. State, 433 So.2d 479 (Ala.1983), affirming, 433 So.2d 473 (Ala.Cr.App.1982). As in Johnson, however, the appellant, arguably, failed to adequately set forth the specific grounds for her objection. She did not state to the trial court, in the record, a theory upon which a charge of manslaughter was warranted. Had she espoused such a theory, perhaps the trial court would have been persuaded to give the manslaughter charges.

Nevertheless, we feel that the requirements of Allen and Johnson were fulfilled in the instant case and the issue was properly preserved.

As explained above, the same evidence that supported the trial court’s detailed instructions on self-defense also supported the requested manslaughter instructions. The trial court was obviously aware of this evidence when it told the appellant that lesser offense instructions would not be given because the evidence “did not merit giving of the same.” Appellant’s immediate exception to this ruling sufficiently complied with the requirements of, and policies behind, the Allen rule. Under these circumstances further argument to the trial court, assuming such argument would have been allowed, would have been futile.

Because the trial court refused to instruct the jury on manslaughter, although there was a “rational basis” to support such a charge, appellant’s murder conviction below cannot stand.

In light of this reversible error, we pre-termit a detailed discussion of the alleged errors in the trial court’s instructions concerning appellant’s “duty to retreat” under the instant circumstances. In the record before us the existence or non-existence of such a “duty to retreat” appears to have been a jury question properly submitted to them by the trial court. In the event of a retrial, the propriety of “duty to retreat” instructions will be governed by the evidence therein presented.

For the error herein noted, this cause must be reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: CHARLES R. CROWDER, Circuit Judge.

text:
    Albert D. FINCH, a/k/a “Fat” v. STATE.
    2 Div. 341.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 31, 1984.

      J.L. Chestnut of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   CHARLES R. CROWDER, Circuit Judge.

Appellant, Albert D. Finch, a/k/a “Fat”, was convicted of assault in the third degree and sentenced to twelve months in the county jail. After denial of his motion for a new trial, he appealed.

On November 17, 1981, Arthur Bishop, Jr., and a cousin, Matthew Miles, drove to Eutaw, allegedly to discuss a welfare matter with Bishop’s wife. At that time the couple had been separated a little over a week. Mr. Bishop’s uncle had seen Mrs. Bishop in Eutaw with appellant, so he informed Mr. Bishop, who subsequently went to the Eutaw Police Department for aid in finding appellant. Assistant Chief of Police Yernie Striplin took the two men to the poolroom owned by appellant, Albert D. Finch. Initially, neither appellant nor Mrs. Bishop was there at the poolroom; however, they drove up in front of the building shortly after Mr. Bishop arrived. Mrs. Bishop got out of the car and talked with her husband for a few minutes while appellant remained in the car. Officer Striplin testified that he did not know what was being said but that on one occasion he told Mr. Bishop and his wife to be quiet, since their voices had risen beyond conversational levels. The conversation terminated with Mrs. Bishop’s apparently stating that she was going to go back to Tuscaloosa.

Mr. Miles and Mr. Bishop began their trip back to Tuscaloosa. While stopped at a red light, appellant and Mrs. Bishop passed in front of them. Mr. Bishop testified that he followed them because he had forgotten to give his wife a message from her grandmother. Mr. Bishop followed appellant to appellant’s mother’s house.

From this point the testimony is substantially in conflict.

According to Mrs. Bishop, who testified for appellant, Mr. Bishop was driving without his lights on. Once he arrived at the house, he turned on his lights, jumped out of the car and approached appellant. Mrs. Bishop said that Mr. Bishop walked towards Mr. Finch with his hands in his pockets, and although warned, as many as 3 or 4 times, “to get off their property” he “just kept walking with his hands in his pockets.” At that time appellant fired a shot in the air, then a second shot was fired, allegedly only in the direction of the car. Mrs. Bishop heard only two shots.

The version of Mr. Bishop and Mr. Miles, which is apparently the testimony believed by the jury, is substantially as follows:

Mr. Bishop followed appellant to his mother’s house. He pulled into the driveway just far enough to be off the black-top. After stopping the car, Mr. Bishop left his lights on and the engine running. Appellant and Mrs! Bishop had gotten out of appellant’s car. As Mr. Bishop was getting out of his ear, he called to Mrs. Bishop, stating that he wanted to talk to her.

Mr. and Mrs. Bishop started walking toward each other; however, when Mr. Bishop had gone only two or three steps, he saw appellant go to the back of his car, unlock the trunk, and reach in and get something out. Mr. Bishop then saw what he believed to be a pistol. At that time no warning or conversation with Mr. Bishop had occurred.

Upon seeing the pistol, Mr. Bishop turned to go back and get in his car to leave. When he reached his car he grabbed for the window of the driver’s door. It shattered from the first shot fired by appellant. That shot also apparently struck Mr. Bishop’s finger. By that time appellant was running and had gotten even with the car. Appellant fired two more shots, to bring the total to three shots fired at or in the general direction of Mr. Bishop. One of the last two shots struck the rear door of Mr. Bishop’s car as he was driving away. Upon leaving the scene, Mr. Bishop and Mr. Miles returned to the police station, where Mr. Bishop gave a statement.

After giving his statement, Mr. Bishop went to Greene County Hospital where Dr. Hullett removed metal fragments embedded in his finger.

The appellant contends that the jury’s verdict was based on palpably insufficient evidence. He claims that his evidence of self-defense would bind the jury to return a verdict of not guilty.

In support of appellant’s contention he cites Adams v. State, 16 Ala.App. 93, 75 So. 641 (1917), and Blankenship v. State, 11 Ala.App. 125, 65 So. 860 (1914).

We agree with proposition expounded in Blankenship, supra, that:

“Self-defense is a common instinct and a natural right, and, as we understand it, means standing one’s ground and repelling, as a means of self-protection, unprovoked force with force.”

However, unlike Blankenship and Adams, supra, the case at bar does not involve appellant’s duty vel non to retreat, since the alleged confrontation and assault occurred at the residence of the appellant. The defense counsel made no objection to any jury instruction given by the court, nor any motion to exclude at the conclusion of the state’s case. Instead, the defense continued with the case by offering evidence of self-defense.

In the case of Graham v. State, 339 So.2d 110 (Ala.Cr.App.1976), this court said:

“While it has been stated that the plea of self-defense is not an affirmative plea of confession and avoidance on which the defendant carried the burden [citation omitted], it is unquestionably the law that once the State adduces sufficient evidence to make out a prima [facie] case, ... in order for the defendant to be entitled to an acquittal on a plea of self-defense he must offer evidence which, when considered with all the other evidence, will produce in the minds of the jury, a reasonable doubt as to his guilt.”

Contrary to what the appellant has implied, the evidence of self-defense as stated above, is controverted. The disputed material facts of self-defense arising out of testimony must be resolved by the jury. The jury is the judge of the facts, the demeanor of the witnesses, and their testimony. Consequently, in the instant case the jury obviously did not entertain a reasonable doubt that the assault was not done in self-defense. There was more than ample testimony for the jury to believe that the assault occurred and was perpetrated without the reasonable subjective belief that appellant’s actions were for self-defense reasons.

It is our judgment that the trial was properly conducted without error, and the evidence supports the finding of fact and the conviction.

We have examined each issue raised by appellant. The circuit court’s judgment of conviction is, therefore, due to be affirmed.

The foregoing opinion was prepared by Hon. CHARLES R. CROWDER, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Charles Edward POOLE v. STATE.
    2 Div. 377.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Barrown D. Lankster, Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty of rape in the first degree as charged in an indictment, substantially in the language of Alabama Criminal Code § 13A-6-61, that he “a male, did engage in sexual intercourse with [the name of the alleged victim], a female, by forcible compulsion.” The indictment was returned on May 27, 1980. On that date the Grand Jury returned two other indictments against the same defendant, one for burglary in the first degree and the other for burglary in the third degree. The three indictments were based upon what, according to the testimony of the alleged victim, occurred at her home in Demopolis on the night of March 16, 1980. The defendant was not arrested until February 17, 1982, in Detroit, Michigan, from which city he was extradited to Alabama and in due course was arraigned on April 30, 1982, accompanied by his counsel, who, by reason of defendant’s indigency was appointed by the trial court and who continues to represent him on this appeal and has filed a brief in his behalf.

According to the undisputed evidence, the only eyewitnesses to the alleged rape were the victim and the alleged rapist. The only eyewitnesses who testified as to the actual facts of the alleged rape was the alleged victim.

According to the testimony of the alleged victim, a married person living with her husband at an apartment in Demopolis whose husband was away from home at work on the night of March 16, 1980, the defendant gained entrance to her apartment and had sexual intercourse with her by forcible compulsion. We see no need to restate the details of her testimony. We believe that a summary of her testimony as found in appellant’s brief suffices, which we now quote except for the name of the victim-witness as follows:

“While taking a shower at about 9:00 P.M. on March 16, 1980, [the victim] testified that she saw a black man standing in the living room of her home (R. 63-64), the black man was later identified as the defendant, Charles Edward Poole (R. 75). [The witness] further testified that the appellant, Charles Edward Poole, approached her with a knife in his hand and motioned for her not to scream (R. 64). She testified that Poole made an unsuccessful attempt to have sexual intercourse with her while she was in the bathroom, but he was too short (R. 65). That she was made to have sexual intercourse with the appellant in the bedroom •later (R. 67-68).”

We continue to quote as sufficient a summary of the testimony pertaining to the question of defendant’s guilt from the “STATEMENT OF THE FACTS” of appellant’s brief summarizing the testimony of the other witnesses called by the State:

“Fulton Prevost, after having testified to his training in the area of fingerprint identification, Prevost stated that the latent fingerprint lifted from the scene was that of the defendant, Charles Edward Poole (R. 113-114).
“Officer Marty Hoven, York Police Department, was one of the first officers to arrive on the scene. He was employed with the Demopolis Police Department on March 16, 1980. (R. 115). Hoven testified that he spoke to [the alleged victim] (R. 116) and dusted for fingerprints (R. 118). He was unable to raise a useable print from a knife found in the cushions of the sofa (R. 119). Several State exhibits were introduced on the testimony of Hoven depicting the scene, over the objection of the defense (R. 121, 122, 123, 124).
“Dr. Reese Holifield, a medical doctor, (R. 180) testified that his examination showed that [the alleged victim] had engaged in a recent sexual act.”

I.

The caption of the first issue presented by appellant is thus stated in appellant’s brief:

“THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING THE DEFENSE’S COUNSEL MOTION FOR A CONTINUANCE FOR THE STATE PRODUCTION OF TESTS RESULTS CONDUCTED UNDER THE COURT’S ORDER [sic].”

When the instant case was called for trial on September 13, 1982, the trial court let it be known that defendant had filed a “Motion for Continuance” and said: “We’re going to take some testimony at this time on the motion for continuance. You filed the motion, Mr. Langster [attorney for defendant],” to which Mr. Langster replied: “Yes, sir; that’s right.

“Your Honor, on June 16, Mr. Watkins [District Attorney] submitted a motion to order an examination of the suspect: head hair samples, pubic hair samples, saliva samples. This motion was heard by the Court on July 7th, at which time the Court ordered the examination as requested with the exception of a blood test. Also the Court ordered that the results of the test and the samples be made available to the defense for examination by an expert or analysis by an expert.
“We have talked to the prosecutor on several different occasions after this particular motion was filed and after the order was made, and we have not gotten the results of the test nor have we gotten any samples of the suspect that were found at the scene. It’s our position that if these samples were made available to us, it would be favorable toward the defendant and that these particular samples and the test results are material to the preparation of the defense case. We ask that that case be continued until such time as these particular results are made available to us or the samples are made available to us.
“MR. WATKINS: Your Honor, we go back, the State asked Mr. Langster’s position [permission?] as attorney for the defendant to be allowed to take these particular bits of evidence, including hair samples, saliva tests, and a blood sample. Mr. Langster refused. I filed a motion but was afraid that maybe taking blood against the refusal of the defense would probably be impermissible invasion. Therefore, when the saliva test was taken it was submitted to the lab along with the hair — I wrote Mr. Langster and talked with him by phone about the test, and I stated to him that the saliva was not taken properly and had dried out but that the lab informed me it would not have been any good without the blood because they must have a blood type for the saliva test to be effective.
“The hair samples were inconclusive but were made available to him to show they were Negroid type hair. And that’s all they could say. Mr. Langster by phone, I believe he will agree, told me he wanted the tests done. I said, ‘You make him available; we’ll do the tests.’ To this day, the first time I’ve heard any more from him was today when we are ready for trial. We had time, when I talked to him, to have had these tests done had he wanted to do them. The State was willing to do them, but he’s the one who refused to do them and not the State. “Everything is available to him, which would be nothing more than the hair, to show it was Negroid hair and that it was compatible with Negroid hair.”

The colloquy continued, as shown by three or four pages of the transcript which add little to the positions of the respective parties through their attorneys that is already shown by the quoted material, which for the sake of desirable brevity we omit and now proceed with the remainder of the colloquy as follows:

“THE COURT: I see no motion that you filed to examine the State’s evidence. “MR. LANGSTER: We filed a motion at the bench at the time this motion was argued. After the Court had made a decision to grant Mr. Watkins’ motion, we filed a motion at the bench at that time that we be permitted to examine the samples they got from the scene and also be permitted to analyze the reports. I think the record at least would reflect the fact that we did make that motion and that it was granted by the Court. “All we are saying is that at least we are entitled to a continuance under the Court’s order.
“MR. WATKINS: Judge, I can’t see why there should be a continuance when I made him the offer — which he agrees— that if he wanted to have his man examined, we would furnish the facilities and that we would have that report available. He refused to do it and has always refused to do it.
“THE COURT: Based on what’s been presented to me, I’m going to deny a motion for a continuance. This case will proceed to trial.
“MR. LANGSTER: We object to that particular ruling, and we take exception for the record.
“THE COURT: All right. That’s on the record.”

It appears that the colloquy was not in the presence of the prospective jurors, but that promptly thereafter in the presence of prospective jurors, the following occurred:

“THE COURT: Ladies and gentlemen, I welcome you to this term of Court. We will be trying criminal cases and have a good many cases on the docket this week. The first case we are going to try is the State of Alabama v. Charles Edward Poole.
“(A jury was duly empanelled and sworn.)”

Notwithstanding the undesirable vagueness as to the positions of the attorneys for the respective parties as reflected by what they said in the colloquy among them and the trial court, we are convinced that the ruling of the trial court denying defendant’s motion for a continuance was well within the sound discretion vested in the trial court as to motions for a continuance, that there was no abuse of such discretion and that there was no error prejudicial to defendant resulting from the court’s denial of his motion for a continuance.

II.

Appellant captions the second issue presented by him as follows:

“THE TRIAL COURT ERRED TO REVERSAL WHEN AN INDICTMENT CHARGING DEFENDANT WITH BURGLARY, IN AN UNRELATED CASE, IN THE PRESENCE AND HEARING OF THE JURY, WITHOUT SPECIFIC INSTRUCTIONS FORM THE COURT THAT THE IMPROPER READING BE DISREGARDED BY THE JURY [sic].”

Although the court reporter’s transcript does not include that part of the proceeding during which the trial court usually, as we assume it did in the instant case, makes known to the panel of jurors from which the jury to try the case is selected or that part of the trial court’s statement or statements to be selected jury immediately prior to their taking an oath to render a true verdict according to the evidence in the particular case, it seems that there is agreement between the parties that the trial judge in open court read to the jurors that tried the case a part at least of one of the two indictments against defendant for burglary. After the jury was sworn and after the attorneys for the respective parties had completed their opening statements to the jury, defendant’s counsel made known to the trial court that he desired to make a motion out of the presence of the jury. The jury was then retired to the jury room and the following occurred:

“MR. LANGSTER: We are moving that there be a mistrial declared because the Court, in reading the indictment, read an indictment charging the defendant with burglary. The defendant is not on trial here for burglary. The jury was present at the time the indictment was read charging the defendant with burglary, and due to the prejudicial nature of reading this particular indictment, we’re asking for a mistrial.
“MR. WATKINS: I think the record reflects that what the Court said. I don’t think he completed reading it, but I don’t believe it would have prejudiced the jury. I don’t think they know what it meant one way or the other, but I guess you might ask them if it would.
“THE COURT: Well, I did start to read the wrong indictment. There’s been several indictments returned in this case, but that was before we empanelled the jury.
“MR. WATKINS: They were in the box.
“THE COURT: That’s right; they were in the box. I’m going to deny your motion. When I get the jury back in here, I’ll ask them the question if they feel it prejudiced them in any way. But I fail to see how it would have any effect one way or the other on the trial of this case, especially since the same party was involved.
“MR. WATKINS: Right, Judge, and since they have never had this put before them that this was another charge. You started reading something and said, ‘No; I’m reading the wrong thing.’ I don’t think it would have any effect.
“THE COURT: I’m going to deny that motion for a mistrial. Bring the jury back in.
“(In open Court; jury present.)
“THE COURT: Call your first witness.
“MR. WATKINS: We call [the alleged victim named in the indictment].”

We find nothing further in the transcript with reference to the incident now under consideration. It is to be noticed that in the caption of this particular issue in defendant’s brief, defendant refers to the other indictment as an indictment “in an unrelated case” and that the trial judge said at one point, “There’s been several indictments returned in this case.... ” Whether more than three indictments had been returned against this defendant by the Mar-engo County Grand Jury, we do not know, but we believe we are justified in concluding that the other indictment from which the court read to the jury was not in an “unrelated case” but, on the other hand, was for an alleged burglary committed at the victim’s home a few minutes before the encounter between her and the intruder. It appears that the occurrence as above stated was “without specific instructions from the court that the improper reading be disregarded by the jury,” as now asserted by appellant, and we are at a loss to understand with reasonable certainty why some cautionary instructions on the subject were not given, unless perhaps the trial court thought it better not to call the attention of the jury to a matter as to which it would not give consideration and which, without further mention, would have had no influence upon the jury.

Inasmuch as Goodwin v. State, Ala.Cr. App., 395 So.2d 1119 (1981) is the only authority cited in appellant’s brief in support of the issue now under consideration, we refer to that case, wherein the district attorney had inadvertently read a separate indictment against another defendant for the same crime charged in the indictment against Goodwin. The conclusion of the opinion in Goodwin on the particular point at 395 So.2d 1122 is as follows:

“There was error on the part of counsel for the State, but there was no error on the part of the Court in overruling defendant’s motion for a mistrial. It was made clear to the jury that an inadvertent mistake had been made by counsel for the State and that the information obtained thereby should be disregarded. We find neither error on the part of the Court nor substantial injury to defendant.”

What was held in Goodwin, supra, does not afford a solution to the particular problem now under consideration. Although the absence of instructions by the court in the instant case to disregard what was read from the other indictment precludes any use of one of the reasons why the court in Goodwin, supra, held that the court was not in error in overruling defendant’s motion for a mistrial, we can consistently therewith hold, as we now do, that the trial court was not in error in overruling defendant’s motion for a mistrial.

III.

We now quote the caption and the argument of appellant in its entirety as to the third issue presented in his brief:

“THE DELIBERATE EXCLUSION OF ALL PERSONS OF AFRICAN-AMERICAN ANCESTRY FROM SERVICE ON THE PETIT JURY WAS A DENIAL OF THE APPELLANT’S RIGHT OF A TRIAL BY AN IMPARTIAL JURY.
“The Sixth Amendment to the United States guarantee the accused of a fair and impartial trial, a selection of a jury by the State of Alabama on the basis of race is prohibited by the U.S. Constitution.”

By the transcript of the proceedings it is made clear, largely by assertions by counsel for defendant, that all of the jury that tried defendant are white, the victim is white, and the defendant is black. We find nothing in appellant’s brief or any transcript of the proceedings that supports appellant’s contention that defendant was deprived of his Sixth Amendment right to “an impartial jury of the State and district wherein the crime” was committed.

IV.

Before the sentence hearing, defendant was given due notice that the State would proceed against him under the Habitual Felony Offenders Act, and at the hearing proof was made that he had been previously convicted of three felonies in Michigan. Alabama Criminal Code, § 13A-5-9(c)(3), provides:

“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:
“On conviction of a Class A felony, he must be punished by imprisonment for life without parole.”

The trial court sentenced defendant in the instant case to imprisonment for life without parole.

Appellant takes the position, one substantially the same as the one taken by him at the sentence hearing, that the three convictions in Michigan are not within the category of felonies as comprehended by the Alabama Habitual Felony Offenders Act. One of said convictions was for carrying a concealed weapon, a pistol, on or about his person, in violation of Michigan Penal Code § 750.227, which provides, according to the exhibits introduced in evidence on the sentence hearing in the instant case, that a person violating said statute “shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00.” According to Alabama Rules of Criminal Procedure, Rule 6(b)(3)(iv):

“Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under Act 607 § 130(4), Acts of Alabama 1977, p. 812 (§ 13A-l-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980.”

Alabama Criminal Code § 13A-11-73 provides: “No person shall carry a pistol in any vehicle or concealed on or about his person, except on his own land, in his own abode or place of business, without a license therefor as hereinafter provided.” Section 13A-ll-84(a) provides:

“Every violation of subsection (a) of section 13A-11-72 or of sections 13A-11-81 or 13A-11-82 shall be punishable by imprisonment for not more than five years. Every violation of subsection (b) of section 13A-11-72 or of sections 13A-11-73, 13A-11-74 and 13A-11-77 through 13A-11-80 shall be punishable by imprisonment for any term less than one year or by a fine of not more than $500.00, or both_” [emphasis supplied].

The quoted provisions of the present Alabama Criminal Code were the statutory law of Alabama for many years before appellant’s convictions in Michigan. We agree with appellant’s contention that if the conduct of unlawfully carrying a concealed weapon, a pistol, on or about the person of the defendant had taken place in Alabama, it would not have constituted a felony.

Each of the two other convictions in Michigan was for an attempted “breaking and entering in violation of Michigan Penal Code § 750.110,” which prescribes punishment for 10 years for breaking and entering some places and 15 years for breaking and entering other buildings or places. Michigan Penal Code § 750.92, captioned “Attempt to commit crime,” provides:

“2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for five years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year.”

At the sentence hearing, there was a lengthy colloquy among the trial court and the attorneys for the respective parties as to the applicability vel non of the Alabama Habitual Felony Offenders Act to the convictions in Michigan, which was interspersed with proffered exhibits by the State as to the law of Michigan on the subject and objections thereto by defendant and which included an apparent agreement between the parties that the three convictions in Michigan were for crimes that constituted felonies in Michigan, but the parties continued to disagree as to whether the Alabama Habitual Felony Offenders Act was applicable to them. During the colloquy, the trial court said:

“It’s my understanding it doesn’t make any difference whether it’s a felony in the State of Alabama. If he’s convicted of a crime that was a felony where he was convicted of that crime, then that would place him in the purview of habitual felony offender. The statute says: Whenever, it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows:
“I think it makes no difference whether it was in Alabama or whether it was in some other jurisdiction. If he was convicted of a felony in another jurisdiction, then the sentence would be enhanced and subject to the habitual felony offender law.”

It appears from the transcript of the proceeding that the sentence hearing commenced on November 3, 1982, and at the conclusion of the hearing thereon that day, the trial judge said:

“If y’all will give me briefs on that before the 19th, I’ll delay sentencing until that time.”

On December 14, 1982, there was a resumption of the sentence hearing, at which it was indicated that the parties had submitted briefs. Just before the pronouncement of the sentence and just after the defendant had said, “No,” to the question' by the court as to whether he had anything to say before sentence was pronounced, the trial court said:

“The State of Alabama filed notice of intention to treat you as an habitual offender. The State has introduced evidence showing that you were convicted in Michigan of attempted breaking and entering, that you were convicted of carrying a concealed weapon, and attempted breaking and entering. So, you have three prior felony convictions in the State of Michigan.”

As indicated above, we agree with counsel for appellant that the conviction in Michigan for the offense of carrying a concealed weapon, a pistol, on defendant’s person does not constitute a previous conviction for a felony pursuant to the Alabama Habitual Felony Offenders Act, and for this reason the sentence to life imprisonment without parole cannot stand. However, we are not now in full agreement with appellant’s challenge of the other two Michigan convictions, each for an attempted breaking and entering, which convictions appear to have been for crimes committed before the effective date of the Alabama Criminal Code for attempts to commit crimes in Michigan that are essentially. the same as either burglary in the first degree (Code of Alabama, 1940, Tit. 14, § 85) or burglary in the second degree (Tit. 14, § 86), each of which was a felony. Nevertheless, neither the transcript of the sentence hearing nor the briefs of parties on appeal enlightens us sufficiently as to whether the attempted breaking or entering was essentially the same as some crime in Alabama that would constitute a felony when committed in Alabama.

V.

By the final issue presented by appellant, he challenges the “imposition of sentence of life imprisonment without parole under the circumstances of this case” as allegedly constituting “cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.” A consideration of that particular issue at this time would call for a mere academic discussion by reason of what we have heretofore said herein, and we think it appropriate to forego such a discussion.

We are of the opinion that the judgment of conviction should be affirmed but that the cause should be remanded with directions that the trial court, after notice to the parties, conduct again a sentence hearing and rule upon the question as to whether each of the previous convictions of this appellant in Michigan was for conduct that would have constituted a felony if such conduct had taken place in Alabama, as required by Rule 6, Rules of Criminal Procedure, that the parties be given an adequate opportunity to present any proper evidence and state their respective views on the point. The trial court shall thereupon vacate its previous sentence and resen-tence the defendant, this time to imprisonment that is not inconsistent with this opinion. A return to this order of remandment shall be made in due course with notice to the parties. Either party aggrieved thereby will have 28 days within which to file a brief in this Court, and the opposing party will have fifteen days thereafter within which to file a reply brief.

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.

JUDGMENT OF CONVICTION AFFIRMED; REMANDED WITH DIRECTIONS AS TO SENTENCE.

All the Judges concur.