author: SAM W. TAYLOR, Judge.

text:
    William Lloyd COLEMAN v. STATE.
    4 Div. 163.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-286.

      Ashley McKathan of Powell & Powell, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   SAM W. TAYLOR, Judge.

Appellant was indicted by the Covington County Grand Jury for the offense of burglary in the second degree. The jury returned a verdict of guilty as charged, and the trial court sentenced appellant to twenty-five years’ imprisonment. Because the sufficiency of the state’s evidence to sustain the conviction is not questioned on appeal, a complete rendition of the facts is unnecessary.

In the early morning hours of May 26, 1982, twelve-year-old ■ Roxanne Marcel awoke in her bedroom at her mother’s trailer to find appellant sitting on her bed. When Roxanne attempted to scream, appellant put his hand over her mouth. She testified he hurt her and told her “all I want to do is suck you.” The alarm clock sounded in her mother’s room at this time and appellant told Roxanne to be quiet and he would leave. Appellant left the trailer and Roxanne slammed the door behind him.

Roxanne stated she could see the man’s face that night, and that he and the appellant seated in the courtroom were one and the same man.

I

Appellant first contends that the trial court erred in charging the jury that a burglary conviction could be based upon either of two alternative specific intent sexual felonies, because the indictment charged only the intent to commit the felony of sexual abuse. The indictment appears in pertinent part below:

“THE GRAND JURY OF COVINGTON COUNTY CHARGES THAT BEFORE THE FINDING OF THIS INDICTMENT, WILLIAM LLOYD COLEMAN, WHOSE NAME IS UNKNOWN TO THE GRAND JURY OTHER THAN AS STATED, DID UNLAWFULLY ENTER THE LAWFULLY OCCUPIED DWELLING HOUSE OF SYLVIA PHYLLIS DE-CORTE WITH THE INTENT TO COMMIT A THEFT OR A FELONY THEREIN, TO-WIT: SEXUAL ABUSE IN VIOLATION OF TITLE 13A-7-6 OF THE CODE OF ALABAMA, 1975, ...”

Despite the limitation in the indictment to the particular felony of sexual abuse, the trial court charged the jury as follows:

“Now, ladies and gentlemen, this crime of burglary is defined by the statute. It says a person commits the crime of burglary in the second degree, if he unlawfully enters a lawfully occupied dwelling house with intent to commit a theft or a felony therein. So in weighing the evidence to determine if the State has met the burden of proof cast upon it, I would outline to you two felonies which might be embraced within the evidence in this case, but it is your duty and your duty alone to determine whether or not he had the intent to commit a felony.
“The crime of sexual abuse in the first degree is defined as, a person commits this crime, if he subjects another person to sexual contact by forcible compulsion. That is a felony. And a person commits the crime of sodomy if he being sixteen years old or older engages in deviate sexual intercourse with another person less than sixteen and more than twelve. “So forcible compulsion would have to be defined to you and then the deviate sexual intercourse would have to be defined for you and sexual contact would have to be defined for you, so you could determine from all of the evidence whether or not this intent existed if, in fact, you find that this Defendant, unlawfully entered into a lawfully occupied dwelling house. “Sexual contact is any touching of the sexual or intimate parts of a person not married to the actor done for the purpose of gratifying the sexual desire of either party. Deviate sexual intercourse is any act of sexual gratification by persons not married to each other involving the sex organs of one person and the mouth or anus of another. And forcible compulsion is physical force that overcomes earnest resistance or a threat, expressed or implied, that places a person in fear of serious physical injury to himself or another person.”

The judge’s charge incorporated and intermingled elements of both first degree sexual abuse under § 13A-6-66(a)(l), Code of Alabama 1975, and second degree sodomy under § 13A-6-64(a)(l), Code of Alabama 1975. Clearly the charge quoted above defines “forcible sexual contact” under attempted sexual abuse. It defines “deviate sexual intercourse” under attempted sodomy. Both terms are spelled out in § 13A-6-60, Code of Alabama 1975. Despite this fact, the indictment charges on the intent to commit but one specific felony, that of sexual abuse.

An indictment for burglary must set forth and define the felony intended to be committed. Cliatt v. State, 348 So.2d 509 (Ala.Cr.App.1977). The intent is the gravamen of the offense charged, although the intended act need not be carried to completion. Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. denied, 294 Ala. 745, 321 So.2d 237 (1975).

The trial court is without power to add to or take away from any material averment in an indictment. Neither may the trial judge charge the jury upon any issue not properly involved in the trial of the case. Crump v. State, 30 Ala.App. 241, 4 So.2d 188, cert. denied, 241 Ala. 588, 4 So.2d 190 (1941). See Sims v. State, 23 Ala.App. 594, 129 So. 485 (1930). While the trial judge may not charge on abstract propositions of law which are inapplicable to the crime or facts, such charges are not ground for reversal unless the defendant may reasonably be regarded as having been prejudiced thereby. Traywick v. State, 378 So.2d 1196 (Ala.Cr.App.1979). As this court stated in Traywick, supra at 1197: “A trial court will not be put in error for charging a correct principle of law, though it might not be strictly applicable to the case on trial, unless the natural tendency of the charge is to mislead the jury.”

It is not altogether clear that the trial judge in charging the jury intended to charge upon two separate felonies. Rather, it seems he attempted to instruct upon definitional elements of the felony of sodomy which he believed the evidence made a part of the crime of sexual abuse charged in the indictment. In the ease of Kelley v. State, 409 So.2d 909, 915 (Ala.Cr.App.1981), this court stated:

“The trial court’s oral charge must be considered and construed as a whole and in connection with the evidence, and if, when so construed, it asserts a correct proposition applicable to the evidence, then a disconnected part or sentence is not reversible error.”

Even if the trial judge’s charge is viewed as having charged a distinct felony, it was harmless to appellant. The charge could not have harmed appellant because it required proof of an intent to perform a more specific act of sexual gratification than that required for a finding of sexual abuse. This placed a greater burden on the state than the sexual abuse statute’s requirement of “any touching of the sexual or the intimate parts' of a person...." See Clements v. State, 370 So.2d 708 (Ala.Cr.App.1978), aff'd in part, rev’d in part, 370 So.2d 723 (Ala.1979). We find no basis for reversal on this issue.

II

Appellant next argues that the trial court erred in denying his “Motion to Dismiss Indictment on Plea of Former Jeopardy.” Appellant did not file his motion until February 22, 1983, approximately four months after entering his not guilty plea on October 28,1982. The conviction upon which he based his plea of former jeopardy was entered on August 17, 1982, well before appellant entered his not guilty plea in the instant case.

Appellant’s motion contended that his prior conviction for criminal trespass, third degree, and the instant prosecution both arose “out of the appellant’s presence at Little’s Trailer Court,” and that appellant had been present at the trailer court only once during the time that the two crimes were alleged to have been committed.

The evidence adduced by appellant at the March 8, 1983, hearing on his former jeopardy motion revealed nothing about the underlying facts of the criminal trespass conviction, the nature of the prosecution, or what parties and issues were involved. The witnesses merely indicated that appellant had also been on the premises of the trailer park in August, 1982. Appellant testified he was present at the park only once before, in May, 1982, and not again until August, 1982. Documents introduced by appellant showed he entered a plea of guilty to criminal trespass, third degree, on August 17, 1982. From this evidence appellant contends the trial court should have found that “both of the convictions had to arise out of the same incident at the trailer park in May of 1982 because that was the only other time the defendant was upon the premises.”

We note first that appellant’s unverified plea or motion was untimely filed, as the record reveals the plea was filed well after a plea of not guilty had been entered. Williams v. State, 348 So.2d 1113 (Ala.Cr.App.), cert. denied 348 So.2d 1116 (Ala.1977). Therefore, the matter is not properly before this court. Jelks v. State, 411 So.2d 844 (Ala.Cr.App.1981).

Even if appellant’s plea had been timely filed, there was no prejudice to appellant in the trial court’s failure to submit the issue to the jury.

“Ordinarily, an issue of former jeopardy should be tried separately and in advance of the issue of not guilty, and the issue is for the jury. Parsons v. State, 179 Ala. 23, 60 So. 864 (1913).
“However, where the evidence introduced shows without contradiction that the plea could not avail even had the issues been submitted to the jury, a defendant is not prejudiced in his substantial rights by the action of a court in denying such plea without submitting it to the jury. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284.”
Inman v. State, 39 Ala.App. 496, at 104 So.2d 448, at 450 (1958).

A plea of former jeopardy is without merit unless the offense presently charged is precisely the same in law and in fact as the former conviction relied on as the basis for the plea. Hughes v. State, 385 So.2d 1015 (Ala.Cr.App.1980); Williams, supra. Appellant’s evidence produced at the hearing on his plea failed to provide a basis for such a finding. Appellant could not have been prejudiced here, because the claim of former jeopardy advanced by him was unfounded. Simpson v. State, 354 So.2d 317 (Ala.Cr.App.1977), cert. denied, 354 So.2d 324 (Ala.1978). The result to appellant would have been the same, regardless of the procedural method employed to determine the issue. Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970).

Ill

At the hearing on appellant’s former jeopardy motion, outside the presence of the jury, appellant’s mother testified concerning the contents of a statement made to her over the telephone by Officer Roy Tabb. After the appellant’s questions were asked and answered by the witness, the prosecutor objected on the grounds of hearsay. The trial court sustained the state’s tardy objection, and told appellant’s counsel to “move on.”

Appellant argues the trial judge erred in sustaining the state’s objection, the effect of which he asserts, excluded the testimony from the court’s consideration. He asserts the testimony should have been admitted as a statement of an authorized agent received against a party principal, citing Southern Railway Company v. City of Birmingham, 271 Ala. 114, 122 So.2d 599 (1960).

A ruling on an evidence objection made after the question is answered does not have the effect of excluding the evidence from the court’s consideration since the issue is not properly preserved for review under such circumstances. See Housing Authority v. City of Decatur Land Co., 64 So.2d 594, 258 Ala. 607 (1953). Thus, an instruction to counsel to proceed does not exclude the evidence from the fact finder’s consideration.

There is no merit in appellant’s contention.

IV

Appellant contends the trial court did not conduct a proper examination of the thirteen-year-old victim to determine her qualification as to the nature and obligation of her oath. The record reflects the following:

“MR. DAVIS: I think, considering the tender age of this witness, I would like to take her on voir dire.
“THE COURT: I am not going to do that. I will do this; Roxanne, you say that you are thirteen now?
“MS. MARCEL: Yes, sir.
“THE COURT: Did you understand what it meant when you held up your hand to tell the truth, the whole truth, and nothing but the truth?
“MS. MARCEL: Yes, sir.
“THE COURT: What did it mean to you?
“MS. MARCEL: To tell the truth.
“THE COURT: And, you know what happens to people if they don’t tell the truth?
“MS. MARCEL: Yes, sir.
“THE COURT: What is that?
“MS. MARCEL: I don’t know.
“THE COURT: What grade are you in school?
“MS. MARCEL: Seventh.
“THE COURT: In the seventh grade?
“MS. MARCEL: Uh-huh.
“THE COURT: And, so you go to church and Sunday School?
“MS. MARCEL: Uh-huh.
“THE COURT: Do you know or understand about the bad place?
“MS. MARCEL: (Witness nods in the affirmative)
“THE COURT: And, you know what it means to tell the truth?
“MS. MARCEL: Uh-huh.
“THE COURT: All right.
“MR. DAVIS: Your Honor, we would state that she hasn’t been sufficiently qualified and we would except to your refusal for our voir dire.
“THE COURT: All right.”

When a witness is alleged to be incompetent because of infancy, the trial court must, by examination, determine the witness’s competency to testify. Ala.Code § 12-21-165 (1975). The record reflects that the trial court undertook such an examination of the infant witness and was convinced of her competency to testify. As this court recognized in Harville v. State, 386 So.2d 776 (Ala.Cr.App.1980), the determination of a child’s qualification to take a witness’s oath is necessarily vested in the sound discretion of the trial judge, who has the opportunity of observing the manner and appearance of the child while being examined, unlike the appellate courts, which are not afforded such an opportunity.

From the record before us, we conclude that the trial judge did not abuse his discretion in allowing the thirteen-year-old witness to testify. Additionally,

“As in Hacker v. State, 31 Ala.App. 249, 250, 15 So.2d 336, 337, cert. denied, 244 Ala. 649, 15 So.2d 339, ‘[W]e are of the opinion if any doubt of the correctness of said ruling prevailed or existed, all such doubt was fully dissipated and rendered innocuous by the straightforward manner in which this child of tender years gave ... testimony as a witness.’ ” Harville, supra at 781.

v

Appellant argues the trial court erred in refusing to give his requested written charges number seven through ten to the jury. The record reflects the following occurred at the close of the court’s oral charge:

“Then, to requested jury charges; I believe Your Honor read charge number two, three, four, five, and number thirteen. We would object to the refusal to five and I think it would be easier to do it in the negative instead of enumerate them. We would object to the Court’s refusal to give the other charges. There were thirteen charges. So the numbers not numerated within the span of thirteen would be the charges we would object to.”

The question is whether this objection measures up to the requirements of Allen v. State, 414 So.2d 989 (Ala.Cr.App. 1981), affd, 414 So.2d 993 (Ala.1982). We find that it does not. Appellant failed to call the trial court’s attention to each specific refused written charge and set forth the grounds for his objection to the court’s refusal to so charge. Hence, there is nothing before this court to review in this regard. Rowe v. State, 421 So.2d 1352 (Ala.Cr.App.1982).

VI

Appellant filed a request for production on November 10, 1982. No hearing was ever held on appellant’s motion, although the state voluntarily answered the request on November 23, 1982.

After opening arguments were made at trial on March 21, 1983, appellant made an oral motion in limine, stating that appellant’s counsel had not learned until the morning of trial that the state had two pictures, and a tire tool confiscated at the time of appellant’s arrest, which it intended to introduce. These items had not been included in the state’s voluntary answer to appellant’s request for production. As a result, appellant moved that “this evidence be limited in being presented.”

Since appellant did not have a right to discover the state’s evidence, he cannot complain of the state’s not educating him as to these items. DeLoach v. State, 356 So.2d 222 (Ala.Cr.App.1977), cert. denied, 356 So.2d 230 (Ala.1978).

VII

Appellant contends the trial court erred in allowing in hearsay testimony, the substance of which he contends concerned an impermissibly suggestive identification of appellant, over his objection and motion to strike.

Deputy Robert Johns testified he was called to the victim’s trailer the morning the burglary occurred to investigate the crime. During his investigation he received a description of appellant’s vehicle. After interviewing the victim, he started to return to town with the victim and her sister in his automobile. He testified the following occurred as he drove:

“Well, after proceeding for about a mile I saw a gold car sitting beside the road and I checked the tag number, and the tag number was the same. And Roxanne said, well, that is the car. And, I stopped in the road and I got out of the car and went over, and I opened the car door and Mr. Coleman was laying asleep on the front seat, and I asked him to step out. Roxanne started screaming and hollering and crying, saying that is the man. She was really upset.
“MR. DAVIS: We object to what Roxanne said and ask that it be stricken from the record. It would be hearsay.
“THE COURT: I overrule.
“MR. DAVIS: We except.”

Appellant argues this statement by Deputy Johns was inadmissible hearsay. However, we find that Deputy Johns’ testimony concerning the victim’s identification of appellant is admissible as a well recognized exception to the hearsay rule discussed in Ferguson v. State, 401 So.2d 204, at 207 (Ala.Cr.App.), cert. denied, 401 So.2d 208 (Ala.1981), as follows:

“ ‘ “A statement which is useful in identifying a person, time, place or other thing is admissible, for that purpose as a hearsay exception. The statement, of course, may not be considered as evidence of the truth of the matter asserted but only for the limited purpose of identification.” “ ‘... [T]he rule above cited is the law of Alabama, Anno. 71 A.L.R.2d 449, at 482-485, 491 (1960). The fact that a third person observed another identify the defendant is “an independent fact to which the witness ... could testify just as to any other fact.” Key v. State, 240 Ala. 19, 20, 197 So. 364, (1940), relying on Green v. State, 96 Ala. 29, 11 So. 478, (1891); see also State v. Wilson, 38 Wash.2d 593, 231 P.2d 288, cert. denied, 342 U.S. 855, 72 S.Ct. 81, 96 L.Ed. 644 (1951).’ ”

This case is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Gregory STEWART v. STATE.
    5 Div. 772.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-314.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen. and Douglas L. Anderson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant, Gregory Stewart, was indicted by the 1983 Spring Term of the Tallapoosa County Grand Jury for the offense of Robbery in the First Degree. He was arraigned on March 4, 1983, and pled not guilty to the charge. Trial by jury ensued on March 30, 1983, and appellant was convicted of Robbery in the First Degree. He received a sentence of 99 years in the penitentiary pursuant to the Habitual Felony Offenders Act.

Testimony at trial revealed that, on November 6,1982, Anita Price, along with her child, Dorothy Caldwell, and her two children drove to the Alexander City Shopping Center. After Mrs. Price parked the car, belonging to Mrs. Caldwell, in the shopping center parking lot, the women observed Mr. Stewart approaching them. As he walked toward them they noticed that he had a brown towel in his hand. Mr. Stewart stopped at the car and initiated a conversation with the women during which he asked for Mrs. Price’s name and telephone number which she declined to give to him. The appellant then announced, “This is a robbery” holding out his hand with the towel draped over it. He proceeded to order the occupants out of the car, adding, “I got a gun and if you scream I’ll shoot.” He ordered Mrs. Price to stay in the ear, but she got out also.

Appellant then got into Mrs. Caldwell’s car and drove off. After Mrs. Caldwell reported the incident authorities chased appellant at high speeds down country roads before he was stopped and arrested at a roadblock.

The issues raised on appeal are (1) whether the evidence was sufficient to sustain a conviction for Robbery in the First Degree, and (2) whether the trial court erred in not allowing the defense to use visual aids which summarized various aspects of the witnesses’ testimony.

In order to sustain a conviction of Robbery in the First Degree under § 13A-8-41, Code of Alabama 1975, three elements must be proven by the State: (1) that in the course of committing a theft (2) defendant used force against the person or the owner or any person present with intent to overcome his physical resistance, and (3) while committing the theft defendant was armed with a deadly weapon.

Appellant admitted at trial and in his appellate brief that he committed the alleged theft of the automobile. The only issues in contention regarding sufficiency of the evidence are, therefore, whether appellant used force against Mrs. Price in the course of the theft and whether appellant was armed with a deadly weapon.

Johnson v. State, 282 Ala. 584, 213 So.2d 644 (1968) is directly analogous to appellant’s case on the question of whether force was used against the victim. In Johnson, defendant, while robbing a dry cleaning store, kept his right hand in his coat pocket. He did not display a gun, but said to the victim, “I don’t want any foolishness out of you this time. I will shoot you right now.” The court found that whether this threat constituted force was a question for the jury and that the jury’s decision in the affirmative was amply supported by the evidence. Certainly, Mr. Stewart’s assertion, “I got a gun and if you scream, I’ll shoot,” is sufficient of force to support the jury's finding in this case.

This court has held on several occasions that it is not necessary to prove that a defendant displayed a gun during a robbery or that he actually had a gun to sustain a conviction for Robbery in the First Degree. Miller v. State, 431 So.2d 586 (Ala.Cr.App.1983); Bender v. State, 420 So.2d 843 (Ala.Cr.App.1982); James v. State, 405 So.2d 71 (Ala.Cr.App.1981). In James v. State, supra, the court stated, “Indeed, in order to be convicted of first degree robbery an accused need not even be armed with a deadly weapon or dangerous instrument where (1) he possesses any object reasonably believed to be a deadly weapon or dangerous instrument or represents in some manner that he has one and (2) there is no evidence to rebut or refute this reasonable belief or representation.” James v. State, supra, at 73. Here, appellant’s actions and threats instilled in the victim the reasonable belief that he was armed with a gun, and under § 13A-8-41(b) this constituted prima facie evidence that he was so armed, and the jury’s determination in this matter should be upheld.

Appellant contends lastly that the trial court erred in disallowing the use of visual aids by the defense. The use of such props as blackboards, diagrams and charts for the purpose of illustrating testimony is, however, within the sound discretion of the trial court. Payne v. Jones, 284 Ala. 196, 224 So.2d 230 (1969). Appellant contends that the chart which was disallowed was needed to establish eye contact with the jury during closing arguments, to explain the technical elements of robbery and to refresh the jurors’ memory as to the testimony of all the witnesses. This case, however, was not complex. There were six witnesses and one day of trial concerning a single incident in a shopping center parking lot. Witnesses were certain about their testimony and the crime in question contained only three elements. On an examination of the record it does not appear that the trial judge abused his discretion in disallowing defendant’s chart.

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.


text:
    Josephus R. ANDERSON v. STATE.
    6 Div. 818.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-316.

      Orson L. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Patricia E. Guthrie, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Josephus R. Anderson was indicted by the Jefferson County Grand Jury on December 7, 1979, for robbery. Arraignment was held on January 16, 1981, with court-appointed counsel present, wherein appellant entered a plea of not guilty. On May 6, 1981, a motion to transfer appellant from Holman Station, Alabama, to the Jefferson County Jail was filed which was granted May 29, 1981. Appellant also filed a motion to produce and a motion for change of venue on May 6, 1981. After a hearing on May 15, 1981, before the Honorable James Garrett, Circuit Judge of Jefferson County, appellant filed a motion for continuance which also was denied. Appellant filed an amended motion for change of venue on December 18, 1981, which was denied on January 21, 1982.

Appellant was tried before a jury on January 27, 1982, and was found guilty as charged. Appellant was sentenced to life imprisonment in the state penitentiary.

A motion for new trial was filed on February 25, 1982. After a hearing on March 25, 1982, said motion was denied.

Jill Tapscott, branch manager of Jefferson Federal Savings and Loan on Fifth Avenue in downtown Birmingham, Alabama, testified that, on November 29, 1979, she was working at the branch office along with Shannon Hill and Jane Baird. At approximately 3:30 p.m., Ms. Tapscott stated that she walked into the front of the branch office and saw a black male holding a gun on Shannon Hill, a bank employee. She stated that Ms. Hill was attempting to open the bank safe. Ms. Tapscott stated that, when the black man saw her walk into the front office, he also pointed the gun at her.

Ms. Tapscott described this man as six feet tall, wearing a blue and white striped sweater-shirt and a brown leather hat with a small visor. He was also wearing a jacket, but Ms. Tapscott stated she could not remember what type. The black male was described as having short hair and a moustache and carrying a silver revolver with a brown handle. Ms. Tapscott further stated this man was carrying a brownish-yellow paper sack.

Ms. Tapscott stated that the robber was in her presence from three to five minutes and was within two feet of her. She identified appellant as the black male who robbed the bank on November 29, 1979.

Ms. Tapscott stated that Shannon Hill gave the robber some rolls of change and “marked” money from her teller drawer. Ms. Tapscott testified that she herself gave the robber over $13,000 in American Express Travelers Checks.

Shannon Hill testified that she was balancing and counting her money at a teller window when a black male walked up to her counter, pulled a gun and asked for money. Ms. Hill stated that she gave the man approximately $150 in marked money from her drawer and some rolls of coins. She stated that Jane Baird, another bank teller, gave him all the money from her drawer and that Jill Tapscott gave the man travelers checks. She stated that the robber put all the money into a yellow paper bag.

Ms. Hill stated that the black male remained in the bank for six minutes. She stated that he was wearing light blue denim blue jeans, a knit pullover with contrasting blue and white stripes and a beige wool cap with a small bill on the front. She also described the gun he was carrying as “being silver.” Ms. Hill identified the appellant as the man who robbed the bank on November 29, 1979.

Frank Erwin, a Birmingham police officer, testified that he received a call around 3:30 p.m. on November 29, 1979, to go to the Jefferson Federal Savings and Loan on the corner of Fifth Avenue and 20th Street. After arriving at the bank, Officer Erwin stated that Jill Tapscott gave him a description of the robber which he then relayed over the police radio.

Charles H. Newfield, a Birmingham police officer, testified that he was working an extra job at Sears in downtown Birmingham on the day of the robbery. He stated that he heard a communication over his police radio regarding the robbery at approximately 3:55 p.m. Officer Newfield stated that after hearing the report he went outside the Sears building. Officer Newfield stated that he observed appellant walking down 16th Street toward him and turn left on Second Alley. He described appellant as wearing a leather cap with a small brim, a patchwork leather jacket, a light blue knit striped sweater and said he was carrying a yellow sack. Officer New-field stated that he followed appellant until he turned off Second Alley at 12th Street. After losing sight of appellant, Officer Newfield stated that he heard gunshots. Officer Newfield testified that he then ran in the direction of the sound of the gunshots which led him to the Southern Motor Inn Motel. There he observed appellant lying on the ground in front of the motel swimming pool. A yellow sack was lying on the ground near the appellant.

Officer R.E. Middleton testified that he was a member of the tactical unit of the Birmingham Police Department and was working in “plain clothes” on November 29, 1979. Officer Middleton stated that he heard certain radio transmissions concerning the robbery which caused him to proceed in his patrol car west on Second Avenue to 13th Street where he turned north. Officer Middleton testified that he pulled up beside a person at Second Alley and 13th Street who fit the description of the robbery suspect which he heard over the radio. He stated that his partner said, “Halt, police,” after which the black male began to run. Officer Middleton testified that he saw the fleeing man pull out a gun so he jumped out of the patrol car. After he and his partner fired a shot at the fleeing suspect, the suspect fell. The suspect turned and fired at the officers and then ran into the area of the Southern Motor Inn Motel.

A marked police car pulled up beside the suspect at the motel and the suspect shot at this vehicle. The officers in this police car returned his fire and the appellant fell again near the motel swimming pool after being shot. Officer Middleton stated that he approached the fallen suspect and took the pistol out of his hand. Officer Middleton identified appellant as the fleeing man.

Birmingham Police Officer Joe Johnson testified and corroborated the testimony of Officer Middleton.

Greg Bearden, an evidence technician with the Birmingham Police Department, testified that he collected money and travelers checks from the scene where appellant was apprehended. He stated that he made photographs of the scene and photocopies of the travelers checks found near appellant.

Gayle Yester, another Birmingham Police Department evidence technician, testified that she went to the Jefferson Federal Savings braneh office at Fifth Avenue and 20th Street on November 29, 1979, at approximately 4:00 p.m. She took photographs, made diagrams and processed the scene for fingerprints. Officer Yester stated that, after she finished her duties at the branch office, she went to the Southern Motor Inn Motel where appellant had been apprehended. There she assisted Officer Bearden record the serial numbers of the money and travelers cheeks that had been recovered from appellant.

Shannon Hill was recalled and testified that the serial numbers on the money recovered from appellant matched the serial numbers on her “bait money” that had been taken from her teller drawer.

We note that, at the time of appellant’s trial for robbery, he had previously been tried twice for the murder of Officer Eugene Ballard who was killed immediately after the robbery. Appellant’s murder trials, both of which resulted in “hung juries,” were had in Mobile, Alabama, because of extensive publicity surrounding the robbery-murder.

Initially, appellant contends that the trial court erred in denying his amended motion for change of venue. Appellant argues that, because of widespread publicity in the Birmingham area concerning the robbery and murder of Officer Ballard, he was denied his right to a fair and impartial trial. He specifically argues that editorials appearing in the Birmingham Post Herald after the second mistrial of his murder trial in Mobile emphatically stated that appellant was guilty of the robbery charge.

A defendant has the right to have his trial removed to another county if he cannot receive a fair and impartial trial in the county in which the indictment is found. Ala.Code § 15-2-20 (1975). However, the defendant has the burden of showing to the reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot be reasonably expected. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978); Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966).

The granting of an accused’s motion for change of venue rests within the sound discretion of the trial court and its ruling thereon will not be disturbed except for gross abuse. Lopez v. State, 415 So.2d 1204 (Ala.Cr.App.1982). As stated in Anderson, supra, 1298-1299:

“Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).
“Except in the situation where there is a showing of ‘inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors’, the trial court’s primary responsibility in dealing with allegedly prejudicial pretrial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); United States v. Jones, 542 F.2d 186 (4th Cir.1976); McWilliams v. United States, 394 F.2d 41 (8th Cir.1968).
“In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the United States Supreme Court recognized that:
“ ‘Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“ ‘ “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” ’ (citations omitted)
“ ‘At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate “the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.” ’ “Recently the Supreme Court affirmed the principles expressed in Murphy.
“ ‘Petitioner’s argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of neither the crimes nor the putative criminal is sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a “trial atmosphere utterly corrupted by press coverage.” ’ Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977).
“The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.”

After careful review, we find that there was no showing that any prospective juror read the editorials which appellant claims prejudiced his case. The only showing that was made was that some of the prospective jurors had some recollection of the events surrounding the robbery.

Furthermore, defense counsel and the district attorney stipulated that twenty seven jurors were questioned individually outside the presence of the other jurors concerning their recollection of any publicity surrounding the case. Fourteen of the twenty-seven jurors had some recollection of the events surrounding the robbery. Two of the fourteen jurors were excused for cause when they stated they could not disregard the pretrial publicity. Two additional jurors who stated they had no previous knowledge of the case replaced those jurors who were struck for cause. The remaining jurors who had some knowledge of the case indicated that they could disregard their recollection and base their verdict on the testimony they heard at trial. Of the jurors empaneled to hear the case, five jurors who had expressed some prior knowledge of the case remained on the panel.

The fact that jurors knew of the case did not establish that at the time of empaneling they were biased against the defendant where they swore that their knowledge would not affect their judgment. Anderson, supra; Hale v. United States, 435 F.2d 737 (5th Cir.1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971).

The evidence before us reveals that the jury was not prejudiced against appellant and therefore we find no error in the refusal of the trial judge to grant the motion for a change of venue.

Appellant also contends that the trial court erred in denying his motion for a trial continuance. He again argues that, because of pretrial publicity some two months prior to his trial, the trial should have been postponed to a later date. However, due to our finding above that the jurors were not biased against appellant, we find no abuse of judicial discretion in its denial of appellant’s motion for a continuance. Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982).

Appellant argues that his in-court identification by witnesses Tapscott and Hill resulted in prejudicial error since their identifications were based on suggestive pretrial photographic identification procedures. From the record, we find that appellant was indicted for robbery on December 7, 1979. On December 11, 1979, Ms. Tapscott and Ms. Hill were shown six photographs, one of which was appellant’s. The photograph of appellant did not have an “IR number” on the front of the photograph as did the other five photographs. Appellant’s photograph also had his name written on the back of the picture. It is appellant’s contention that his picture shown to the witnesses in which an “IR number” was missing and where his name was written on the back coupled with the publicity at the time of the witnesses viewing the photograph resulted in a suggestive and improper photographic lineup procedure.

When an in-court identification is shown to have a basis independent of any pretrial identification or confrontation, it is properly admitted into evidence. Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982).

As this court stated in Matthews v. State, 361 So.2d 1195, 1198 (Ala.Cr.App. 1978),

“Whether an in-court identification has been so tainted by an extrajudicial identification as to vitiate the in-court identification is not to be determined solely by the circumstances of the extrajudicial identification, but all of the circumstances relative to the identification of defendant by the witness are to be taken into consideration, and if it is determinable therefrom that an in-court identification was independent of the extrajudicial identification, evidence of the in-court identification is admissible.” (Citations omitted)

During voir dire examination of witnesses Tapscott and Hill outside the presence of the jury, each was asked if she had an independent recollection of the description of the robber without having seen any photographs. Both witnesses replied that they recalled what the robber looked like by viewing him during the robbery of the bank rather than from viewing any photographs. Furthermore, both witnesses gave accurate, detailed descriptions of the appellant immediately after the robbery occurred. Appellant was viewed by the witnesses in a well-lighted building, in the daylight hours, for approximately five minutes and within a close proximity.

In view of the totality of the circumstances, we do not find the in-court identification of the appellant tainted by the exhibition of his photographs to witnesses Tap-scott and Hall. The evidence is clear that both witnesses based their identification of the appellant on their recollection of the events surrounding the robbery and observations thereof.

Appellant contends that the trial court erred in denying his challenge for cause of jurors Brown and Benjamin. He argues that these jurors indicated on voir dire questioning that their recollection of events surrounding the robbery and later murder of Officer Ballard would affect their judgment.

The record shows that appellant moved the trial court for a Rule 10(f) order to supplement the record to show the individual jurors’ answers to voir dire questions. It was further shown by sworn affidavit that the court reporter’s notes and tapes of the juror’s voir dire questioning were reported missing prior to their being typed. However, we note that defense counsel and the district attorney entered a stipulation which said that two prospective jurors from the venire who stated they could not disregard previous news accounts of the case were dismissed from the venire and replaced by two who were unaware of the surrounding publicity. The parties further stipulated that all the other jurors who had heard any of the pretrial publicity stated they could disregard their recollections and base their verdict on the testimony they heard during the trial. As this court stated in Chillous v. State, 405 So.2d 58 (Ala.Cr.App.1981), before a criminal conviction is to be reversed, it must appear to this court that the error complained of has probably injuriously affected the substantial rights of the defendant. After careful review of the record, we find no prejudicial error of the trial court’s ruling.

Appellant’s contention that he was denied his right to counsel for state criminal prosecutions as established by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), is without merit. The record firmly shows that appellant was indicted for robbery on December 7, 1979. On December 18, 1979, the Honorable William N. Clark was appointed to represent appellant in this cause. Subsequent to appointment of counsel, Jefferson County Circuit Judge Wallace Gibson entered an order staying any further action on this robbery case pending the outcome of the homicide trial in Mobile County. After two mistrials in the homicide case, the Jefferson County District Attorney’s office proceeded with the robbery charge against appellant and the Honorable Orson L. Johnson was appointed on January 16, 1981, to represent appellant in this cause. Appellant was subsequently tried for robbery approximately one year later on January 25, 1982. The record firmly establishes the fact that appellant was most ably represented at all times during the disposition of his robbery case.

Appellant’s final contention is that this cause is due to be reversed because of a fatal variance in the proof adduced at trial and the charge in the indictment.

The record shows that appellant was indicted on December 17, 1979, wherein the indictment reads as follows:

“The grand jury of said county charge that, before the finding of this indictment, JOSEPHUS R. ANDERSON, alias ROBERT HENDERSON, JR., whose name is to the Grand Jury otherwise unknown, feloniously took Thirteen Thousand Three Hundred Fifty Dollars in American Express Travelers checks and Two Thousand Three Hundred Eight Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the personal property of Jill Tapseott, from her person and against her will, by violence to her person or by putting her in such fear as unwillingly to part with the same.”

Appellant argues that no evidence was produced at trial showing that anything other than travelers checks was taken from Ms. Tapseott and that no evidence was introduced showing the value of the travelers checks taken. It is appellant’s contention that some value must be shown before the offense of robbery can be made out. We disagree.

As stated in Frazier v. State, 56 Ala. App. 166, 320 So.2d 99 (1975), the amount of money or the value of property taken is immaterial in a robbery prosecution. It is consistently held in Alabama that the crime of robbery is basically a crime against the person. Johnson v. State, 406 So.2d 451 (Ala.Cr.App.1981).

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Daniel Barry HOLSEMBACK and Phillip E. Holsemback v. STATE.
    7 Div. 156.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-282 and 83-309.

      Ralph L. Brooks, Anniston, for appellant Daniel B. Holsemback.
    Fred Ray Lybrand, Anniston, for appellant Phillip E. Holsemback.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Daniel Holsemback and his brother, Phillip, were separately indicted for the murder of Donald Joe Coleman. The indictments were consolidated for trial pursuant to A.R.Crim.P.Temp. 15.4(b). A jury found both brothers guilty of murder and the trial judge sentenced each to a term of life imprisonment.

On the 11th of September, 1982, Phillip and his wife went to the Rainbow Inn in Oxford. Later, Daniel arrived with his date, Earlene Mayfield, and her niece, Connie Mitchell. The brothers sat at separate tables in different parts of the club and had only occasional contact with each other throughout the evening.

Sometime prior to the homicide, Phillip confronted Wayne Morgan in the men’s restroom and told Morgan that he “didn’t let nobody f... with him.” Phillip drew his knife. Morgan did likewise, and words were exchanged. At that time, the club bouncer “came in and broke up the scuf-fie”, the cause of which was never established. A few minutes after Morgan had returned to his table, Phillip came over “just trying to fuss” and Morgan argued with him. The bouncer “came over and got” Phillip from Morgan’s table. Morgan left shortly after this incident, but immediately before he left Phillip came over and Phillip, the bouncer, and Morgan apologized.

Shortly after one a.m., Joe Coleman entered the club. Ms. Mitchell, who was with Daniel and his date, kept calling Coleman over to their table. Seconds after Coleman had come to Daniel’s table, Daniel and Coleman starting fighting and fell to the floor. When Daniel was pulled off Coleman, he had blood on his shirt. Daniel put a knife in his pocket and fled the club.

While Coleman was still on the floor, Phillip came from another part of the club, jumped on him and began hitting Coleman. The bouncer pushed Phillip off Coleman and Phillip fled the club stating, “You’re lucky you ain’t dead.” Coleman had been cut or stabbed seven times. The cause of death was multiple stab wounds. Of the seven wounds, the “most rapidly fatal wound” went “in a different direction from the other wounds.”

Phillip was arrested at 1:48 a.m. that morning. He had blood “all over him” and two knives were discovered on his person. He was taken to the Oxford City Jail and placed in a cell.

Later, Oxford Police Officer Danny Stewart returned to Phillip’s cell and noticed the water running in the sink. Phillip turned from the sink, “wiping something on his shirt”, and handed Officer Stewart a wet knife stating, “Don’t you think you ought to take this?” On the knife and in the sink were faint traces of blood.

Phillip told the police that he did not cut anybody, stated that “Danny did the cutting”, and said, “If you will let me get a hold of my brother, I’ll make him tell you the truth.”

After he fled the club, Daniel ran to the house of Shirley Herron. He told her that he had been in a fight with Coleman and tried to give her his knife. When Ms. Herron refused to take the knife, Daniel “laid the knife down on the stereo” and left.

Later that same night, he telephoned the police and turned himself in. He showed them the knife he used and gave a statement claiming that he only cut Coleman in self-defense.

I

Both defendants argue that the court rule permitting consolidation of separately indicted defendants for trial is an abridgment of their substantive right to trial by jury and in violation of the constitution.

In Alabama, the rules governing joinder and consolidation are rules of court. Section 6.11 of Amendment 328 of the Alabama Constitution provides:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application.”

This same power to make rules of procedure and practice is listed among the powers of the supreme court in Alabama Code Section 12-2-7 (1975). It is undisputed that the Legislature intended to grant the supreme court this authority, for Alabama Code Section 15-1-1 (1975) provides that the rules of criminal practice and procedure adopted by the Alabama Supreme Court shall take precedence over the statutes governing criminal procedure. Although the general rule is that a legislative enactment takes precedence over a court rule, Ex parte Foshee, 246 Ala. 604, 21 So.2d 827 (1945), when the Legislature gives the court the power to make rules and the court acts, the rules become of “legislative origin in substance.” Ex parte Leeth Nat. Bank, 251 Ala. 498, 38 So.2d 1 (1948).

Both defendants argue that the court rules of joinder and consolidation constitute substantive law and abridge their right of trial by jury at common law.

Alabama Code Section 15-14-20 (1975), over which A.R.Crim.P.Temp. 15 now takes precedence, provided the unqualified right to demand a separate trial by any defendant jointly indicted with another. This right of separate trial, at least where the indictment was joint, was granted by statute. Prior to the Code of 1886 in which the identical language of what is now Section 15-14-20 is initially found, the allowance of a separate trial was discretionary with the court. Andy v. State, 87 Ala. 23, 6 So. 53 (1889). Alabama Code Section 4892 (1876) provided: “When two or more defendants are jointly indicted, they may be tried, at the discretion of the court, either jointly or separately.” This was also the rule at common law. Jackson v. State, 104 Ala. 1, 16 So. 523 (1894); Hawkins v. State, 9 Ala. 137 (1846). See also Charley v. State, 204 Ala. 687, 87 So. 177 (1920); Palmer v. State, 15 Ala.App. 262, 73 So. 139, cert. denied, 198 Ala. 693, 73 So. 1001 (1916).

In this state, we have found only three cases which address the issue of the separate indictment of two defendants for the same offense and the right of a separate jury trial. Helums v. State, 23 Ala.App. 401, 126 So. 183 (1930), summarily held that, “Being separately indicted, the defendant is entitled to a separate trial, and a joint trial with another without the consent of the defendant or a waiver of the right by him appearing of record is error and cause for reversal. Martin v. State, 19 Ala.App. 432, 97 So. 768.” Martin, without discussion or citation to authority, simply concluded that “(t)wo defendants indicted separately for the same felony shown by the evidence to have been committed jointly may consent to be tried together and a separate verdict may be returned in each case.” With the same abrupt and conclu-sionary treatment, the court of appeals remarked in Taylor v. State, 20 Ala.App. 133, 134, 101 So. 93 (1924): “We know of no law which authorizes a consolidation of felony eases where the parties are not -jointly indicted. ...”

The only reason for this rule was found in J. Bishop, 2 New Criminal Procedure, Section 1043 (2nd ed. 1913), wherein it was stated that the consolidation of separate indictments against separate defendants, with their trials together, “was deemed so burdensome as, though distinct verdicts were found, to render the proceeding erroneous.” In T. Butler and M. Garsia, Arch-bold Criminal Pleading, Evidence and Practice, Section 544 (35th ed. 1962), two English cases are cited for the rule that persons separately indicted cannot be tried together. One of these cases held that this matter was jurisdictional and defendants not jointly indicted could not be tried together even by consent. Dennis and Parker, 1 K.B. 867, 18 Crim.App. 39 (1924), relying on Crane, 15 Crim.App. 23 (1920), holding that the trial of two defendants separately indicted is void ab initio: “The result is that there never has been a trial at all.” 15 Crim.App. at 25.

Despite this authority to the contrary, we find that joinder and consolidation of defendants and indictments are procedural matters that do not ordinarily affect the substantive rights of the parties. The same issue was addressed by the Supreme Court of Massachusetts in Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718, 720-21 (1931), which held that the issue of joinder was procedural: “So far as concerns essentials in the ascertainment of truth and the administration of justice, a joint trial of two defendants on two separate indictments for one crime differs in no respect from a single trial of the same defendants joined in one indictment for the identical crime.” See also M. McGee, Alabama Criminal Practice 178, n. 13 (1969) (“May several defendants charged by separate indictments be tried together in one proceeding? This seems permissible -as long as a defendant does not object, there being no substantial difference between separate indictments and a joint indictment if the offenses charged are the same.”).

In Gallo, the court dealt with the two English cases cited above and the apparently contradictory Alabama case of Taylor.

“While there can be no impairment of constitutional guaranties, defendants charged with crime have no vested rights in matters merely procedural, bearing no vital connection with a real defense, fairly presented, based upon the merits. Traditional tenderness for persons accused of crime, having its origin in governmental, social and legal conditions far different from those now prevalent, cannot stand in the way of expeditious ascertainment of the facts, provided every substantial right of defendants be sedulously safeguarded. There seems to us no difference in sound principle under present conditions between requiring one defendant to proceed to a single trial upon separate indictments charging the same offense. Compare Lumiansky v. Tessier, 213 Mass. 182, 188, 189, 99 N.E. 1051, Ann.Cas. 1913E, 1049; Salinger v. Loisel, 265 U.S. 224, 229, 230, 44 S.Ct. 519 [521], 68 L.Ed. 989. We are therefore of opinion that there was no error in the joint trial of the two defendants.
“In Rex v. Crane, (1920) 3 K.B. 236, it was held by the Earl of Reading, C.J., speaking for the Court of Criminal Appeal, that the trial together of two prisoners separately indicted, one for receiving and the other for stealing certain skins was a nullity. On appeal sub no-mine, Crane v. Public Prosecutor, (1921) 2 A.C. 299, 319, 320, 321, 331, 335, 336, the decision on this point was affirmed. Those decisions were followed in Rex v. Dennis, (1924) 1 K.B. 867, where a joint trial of two defendants separately indicted, one ‘for using’ and the other ‘for having opened, kept or used’ a house for a forbidden purpose, was held to be beyond the jurisdiction of the trial court. Those decisions may be distinguished from the case at bar on the ground that those were joint trials of different defendants separately indicted for distinct crimes, while in the case at bar each defendant was indicted for one and the same crime. The ground upon which those decisions are made to rest, although not much amplified, may be thought to be inconsistent with the conclusion here reached. If that be so, those decisions are incompatible with Commonwealth v. Seeley, 167 Mass. 163, 45 N.E. 91; Commonwealth v. Baldi, 250 Mass. 528, 146 N.E. 11; and Commonwealth v. Slavski, 245 Mass. 405, 140 N.E. 465, 29 A.L.R. 281. Few decisions in this country bearing on the point have come to our attention, and those are not by the highest courts. In none of them is there much discussion, but they do not appear to support the view we entertain. People v. O’Connor, 81 Cal.App. 506, 515, 519, 254 P. 630; Taylor v. State, 20 Ala.App. 133, 134, 101 So. 93. There is nothing contrary to the conclusion here reached in State v. Devlin, 25 Mo. 174, 176. The weight of all those decisions having a possibly contrary aspect is not minimized. We are constrained not to follow them because they are not in harmony with the principles underlying our system of criminal procedure as disclosed in the decisions of this court already cited.”

Following Gallo, we conclude that the consolidation for trial of separate indictments against separate defendants is a matter of procedure and does not abridge the substantial right of an accused to a jury trial. Support for our conclusion is also found in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), wherein the United States Supreme Court refused to “convert a privilege into an imperative requirement” and held that an accused could waive his constitutional right to a jury trial, notwithstanding the common law rule forbidding waiver. The court noted that a legislature may not destroy or abridge the common law elements of the. constitutional right of trial by jury in a criminal case. The Sixth Amendment phrase “trial by jury” means “a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted_” Patton, 281 U.S. at 288, 50 S.Ct. at 254.

“Those elements were: (1) That the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.” Patton, 281 U.S. at 288, 50 S.Ct. at 254.

See generally C. Antieau, 1 Modern Constitutional Law, Section 5.60 (1969). Also Baader v. State, 201 Ala. 76, 77 So. 370 (1917).

“Joinder and severance is a procedural issue_” 2 A.B.A. Standards For Criminal Justice, Chapt. 13, at 13-4 (2nd ed. 1982). “The consolidation of cases for trial is not jurisdictional, but merely procedural.” 23 C.J.S. Criminal Law, Section 931 (1961). The consolidation of one defendant’s case with that of another defendant is a matter of procedure. Hamilton v. North Carolina, 260 F.Supp. 632, 635 (E.D.N.C. 1966), affirmed, 382 F.2d 296 (4th Cir.1967). Rules of joinder and consolidation are designed “to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.” Daley v. United States, 231 F.2d 123, 125 (1st Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956). Joint trials are “an accepted and even necessary aspect of our judicial system” and do not constitute a per se denial of due process. United States v. McLaurin, 557 F.2d 1064, 1074 (5th Cir. 1977). Since the rules of joinder, consolidation, and severance are procedural in that they regulate the manner in which an accused’s substantive and constitutional right to a jury trial may be exercised, they are within the rulemaking power of our state supreme court. We find A.R.Crim.P.Temp. 15 to be a proper and constitutional exercise of that power.

II

A.R.Crim.P.Temp. 15.4(b) provides that if two or more defendants are joined for purposes of trial, “(p)roceedings thereafter shall be the same as if the prosecution initially had been under a single indictment, information, or complaint.” Rule 15.4(h) provides that when defendants are tried jointly, in selecting the jury, the “district attorney shall strike first, and shall strike one (1) name from the list; then one (1) defendant shall strike one (1) name from the list; then the district attorney shall strike one (1) more name from the list; and then the next defendant shall strike one (1) name from the list.” The rule makes it clear that the parties shall strike in a definite order; first the State, then one defendant, then the State, then the second defendant. If the defendants were separately indicted the rule provided that each shall have a turn “in the same order as the filing of the charges against them ... unless they agree upon a different order.”

A law changing the number of jury strikes in a criminal case is procedural and does not affect matters of substance. Haynes v. State, 424 So.2d 669, 670-72 (Ala.Cr.App.1982), cited as proper authority in Ex Parte Cofer, 440 So.2d 1121 (Ala.1983). See also Opinion of the Justices No. 229, 342 So.2d 361, 362 (Ala.1977), holding that the “method of selecting juries in criminal cases, ... is within the rulemaking power of the Supreme Court of Alabama as granted by the Constitutional provision quoted (Amendment 328, Section 6.11).”

In view of these authorities we find that the method of striking juries proved by A.R.Crim.P.Temp. 15.4(h) where two or more persons are tried jointly is a constitutional exercise of the rulemaking power of the Alabama Supreme Court.

III

Both defendants argue that, even if a consolidation were constitutionally permissible as part of the supreme court’s rule-making power, the consolidation in this particular case denied them a fair trial.

Daniel alleges that he was unduly prejudiced because of (1) the introduction of Phillip’s statement, (2) the evidence of the confrontation between Phillip and Morgan in the restroom, and (3) the fact that Phillip elected not to testify in view of his prior criminal record.

Phillip argues that the joinder was prejudicial because of the admission of evidence of Daniel’s “prior difficulties with the deceased and his cohabitation with females, not his wife.” This evidence of prior difficulties and cohabitation was presented by Daniel to support his claim of self-defense.

The trial of multiple defendants carries “substantial risks of manifest unfairness.” United States v. McLaurin, 557 F.2d 1064, 1074 (5th Cir.1977). “Inherent in every joint trial is, of necessity, some degree of bias. Only in the event such prejudice appears to be compelling does severance become warranted.” United States v. Marszalkowski, 669 F.2d 655, 660 (11th Cir.1982).

“Although the risk of prejudice, either from the jury’s perception of evidentiary spillover or transference of guilt, exists in any joinder of offenses or defendants, the trial court weighs that risk against the interest of judicial economy. In reviewing improper denial of severance claims, courts of appeals require that the defendant demonstrate that the trial court abused its discretion by showing that the failure to sever resulted in compelling prejudice....
“The defendant bears a difficult burden in attempting to show that joinder of defendants or charges created substantial or compelling prejudice. The defendant fails to meet this burden if he merely asserts that acquittal is more likely if he is tried in a separate action or that much of the prosecution’s evidence relates to only one of the codefendants. Compelling prejudice requiring severance does not result when the evidence against the codefendant is more damaging than against the defendant, or when the prosecution introduces into evidence a code-fendant’s past criminal record or reputation ....
“Severance may be required when code-fendants' inconsistent defenses are prejudicial because they are mutually exclusive and irreconcilable or might mislead or confuse the jury. The defendant may demonstrate the level of antagonism requiring severance by showing that the jury had to disbelieve testimony offered in behalf of a codefendant in order to believe the core of evidence offered by the defendant. In determining whether prejudice resulting from jury confusion requires severance, courts focus on whether the jury reasonably could be expected to ‘compartmentalize’ the evidence and charges against each defendant. Courts also consider the effectiveness of the jury instructions, the complexity of the ease, and the total weight of evidence against each defendant.” Twelfth Annual Review Of Criminal Procedure: United States Supreme Court And Courts Of Appeals 1981-1982, 71 Geo.L.J. 339, 494-98 (1983).

The test of whether a severance should be granted on the ground of prejudice to the defendants is whether under all the circumstances as a practical matter it is within the capacity of the jurors to follow the court’s instructions and to collate and appraise the independent evidence against each defendant solely upon that defendant’s own acts. McLaurin, 557 F.2d at 1075. The trial judge must weigh the prejudice attendant to a joint trial against the interests of judicial economy. “Of necessity, this balancing process is committed in the first instance to the sound discretion of the trial judge, and an appellate court will not substitute its own judgment for that of the lower court absent an affirmative showing that the lower court has abused its discretion.” McLaurin, 557 F.2d at 1075.

In view of the test and considerations set out above, we find no compelling prejudice materialized here.

We find no merit to Phillip’s argument that he was prejudiced by the admission of testimony concerning Daniel’s “pri- or difficulties with the deceased and his cohabitation with females, not his wife.” At trial, Daniel testified that approximately two years ago he was living with Iona Johnson and that Coleman had broken in the house one night. Daniel stated that he pointed his pistol at Coleman at that time as Coleman ran out the door threatening to kill Daniel. The testimony also showed that Ms. Johnson was single during the time she lived with Daniel. When the testimony was given concerning these matters, Phillip’s defense counsel made no objection and we do not think his inaction can now be criticized for the obvious reason that the worse Daniel looked the better Phillip appeared. Consequently, we have no difficulty in concluding that Phillip was not prejudiced by being tried with his brother. See Finch v. State, 81 Ala. 41, 1 So. 565 (1887) (where a confession of one defendant as to a former difficulty between himself and deceased is admitted against himself only, and properly limited by instruction, a code-fendant cannot complain that its admission was prejudicial to him).

Although we also find that Daniel did not suffer any compelling prejudice, our determination of that issue with regard to Daniel is more involved. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that the defendant’s Sixth Amendment right to confrontation may be violated by introduction of a nontestifying codefend-ant’s extrajudicial statement inculpating the defendant. Here, it is undisputed that Phillip told the police that Daniel stabbed • Coleman, that this statement was admitted into evidence at trial, and that Phillip did not testify. However, it is also undisputed that Daniel did stab Coleman. The only issue as far as Daniel’s defense was concerned was whether Daniel acted in self-defense.

At trial, neither Phillip nor Daniel objected to the introduction of Daniel’s statement admitting the stabbing but claiming self-defense. Only after the prosecution had placed Daniel’s confession before the jury were Phillip’s statements introduced into evidence, and then without objection. Phillip’s statements were short and very general: He told Officer Hill that Daniel did the cutting and that “if you will let me get a hold of my brother, I’ll make him tell you the truth.”

In Bruton, the Supreme Court specifically held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” 391 U.S. at 126, 88 S.Ct. at 1622. The distinction between this case and Bru-ton is in the fact that in Bruton the code-fendant’s confession “added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination.” 391 U.S. at 127, 88 S.Ct. at 1623. Bruton also recognized that “(n)ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error_” 391 U.S. at 135, 88 S.Ct. at 1627.

Here, although the admission of Phillip’s extrajudicial statement incriminating Daniel was technically in violation of the Bru-ton rule, it constitutes only harmless error, even if its admission had been preserved for review.

Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), held that a Bruton error does not require reversal if the error was harmless beyond a reasonable doubt. In Sckneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), the Court held that, in light of the overwhelming evidence of the defendant’s guilt as manifested by his confession and the comparatively insignificant effect of the codefendant’s confession, any Bruton error which may have occurred was harmless beyond a reasonable doubt. United States v. Halliday, 658 F.2d 1103, 1105 (6th Cir.), cert. denied, sub nom. Frank v. United States, 454 U.S. 1127, 102 S.Ct. 978, 71 L.Ed.2d 115 (1981).

“The Court held in Bruton that the admission of a confession of a codefendant who did not take the stand deprived the defendant of his rights under the Sixth Amendment Confrontation Clause, when that confession implicated the defendant. Even when the jury is instructed to consider the confession only against the de-clarant, the Court in Bruton determined that the danger of misuse of the confession by the jury was too great to be constitutionally permissible ....
“The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the code-fendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” Schneble, 405 U.S. at 429-30, 92 S.Ct. at 1058-59.

We do not consider the fact that Phillip’s failure to testify, for whatever reason, constitutes a case of compelling prejudice against Daniel. Here, there is not even the allegation that at a separate trial Daniel would provide exculpatory evidence. See United States v. Dennis, 645 F.2d 517, 521 (5th Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981) (denial of severance improper when codefendant gave specific exculpatory testimony in chambers, which he would repeat only at a separate trial because of reluctance to expose his prior criminal record); United States v. Ruppel, 666 F.2d 261, 268-69 (5th Cir.1982) (denial of severance proper when codefend-ant’s possible testimony merely duplicates testimony already admitted and it is only “more likely” that codefendant would testify at separate trial); United States v. Grapp, 653 F.2d 189, 192-93 (5th Cir.1981) (denial of severance proper when defendant merely speculated that codefendant more willing to give exculpatory testimony at separate trial); United States v. Perez, 648 F.2d 219, 223 (5th Cir.), cert. denied, sub nom. Ruiz v. United States, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 388 (1981) (denial of severance proper when defendant failed to show likelihood that codefendant would testify at a separate trial).

IV

Daniel’s contention with regard to the joint trial issue that he was unduly prejudiced by the evidence of the confrontation between Phillip and Morgan in the restroom also requires the consideration of the issue raised by Phillip that the incident was not admissible against him.

The general rule is that “(i)n a homicide prosecution, ‘threats or hostile demonstrations by the accused toward persons not connected with the deceased are not admissible.’ McGuff v. State, 49 Ala.App. 88, 91, 268 So.2d 868, 871, cert. denied, 289 Ala. 746, 268 So.2d 877 (1972).” Voudrie v. State, 387 So.2d 248, 252 (Ala.Cr.App.), cert. denied, 387 So.2d 256 (Ala.1980); Wiggs v. State, 24 Ala.App. 22, 129 So. 706 (1930); C. Gamble, McElroy’s Alabama Evidence, Section 44.01(1). In a prosecution for murder, “it is not permissible to show a difficulty between the accused and a third person not connected with the victim or the offense.” Caylor v. State, 353 So.2d 8, 10 (Ala.Cr.App.1977), cert. quashed, 353 So.2d 11 (Ala.1978). “The state is not allowed to supply the intent to kill one victim by showing that the defendant had assaulted a third party on another unrelated occasion.” Caylor, 353 So.2d at 10.

.However, Phillip’s altercation with Morgan was properly admissible under a more specific rule to show his mental state at the time of the homicide. “(E)vidence of accused’s commission of another crime of violence against a stranger to the victim, very close in time and place to the charged homicide, is admissible as tending to show that the defendant, at the time of the charged homicide, was in a reckless, dangerous or malicious mood.” McElroy, Section 70.01(12)(e) (emphasis added), citing Sims v. State, 253 Ala. 666, 46 So.2d 564 (1950). See also Keith v. State, 253 Ala. 670, 46 So.2d 705 (1950). The evidence of the difficulty between Phillip and Morgan was admissible because it was connected with the offense. The altercation constituted a part of the chain of events and “need not be a part of the res gestae in the sense that these events became part of the crime itself, since they lead up to and tend to explain the acts, animus or intent of the defendant at the time he killed (the victim),” cf. Keith, 253 Ala. at 675, 46 So.2d 705; and it was “so immediately connected with the circumstances” of the killing of the deceased with the same type weapon “that it is but an incident leading up to the occurrence itself .... and shows that at the time he was in a reckless, dangerous, malicious mood, and that was immediately preceding the killing of the deceased.” Sims, 253 Ala. at 669, 46 So.2d 564. Consequently, we find that the altercation between Phillip and Morgan was admissible against Phillip..

On the issue of whether this evidence prejudiced Daniel to the extent that a severance was required, we find no compelling prejudice or prejudice sufficient to require a mistrial.

“(T)he fact that evidence may be admissible against one defendant but not against another defendant does not necessarily require a severance.” United States v. Losada, 674 F.2d 167, 171 (2nd Cir.1982). “Severance will not be granted when the claim is based on the disparity of evidence adduced against individual defendants without a strong showing of prejudice....” United States v. Mandel, 591 F.2d 1347, 1371 (4th Cir.1979). The fact that the evidence is much stronger against one defendant than another is insufficient for a severance. United States v. Rasheed, 663 F.2d 843, 854 (9th Cir.1981).

The trial judge carefully and repeatedly instructed the jury to consider the evidence against the two defendants separately and to consider the testimony of the altercation between Phillip and Morgan only as it pertains to the case of Phillip. The evidence against both defendants was “simple' and straightforward enough for the jury to consider without any significant spillover effect.” Losada, 674 F.2d at 171. Any claimed prejudicial spillover surely did not rise to the level of “compelling” or substantial prejudice in our opinion.

V

Both Daniel and Phillip argue that their separate motions for judgments of acquittal should have been granted.

Daniel argues that “since the jury found that Phillip Holsemback stabbed the deceased and caused his death there was not proof that any wounds by Daniel caused the death of Donald Joe Coleman.” Phillip argues that there was simply no evidence that he stabbed Coleman. Both of these contentions are without factual or legal support.

Daniel’s argument is based on the false premise that two persons cannot be guilty of the same murder unless they were acting in concert. In this case there is no evidence of any mutual agreement between the defendants to kill Coleman; there was no evidence of joint participation in a common purpose. The trial judge did not charge the jury on conspiracy or on the liability of an accomplice.

“(I)f an offense is committed by one or more of them (persons), from causes having no connection with the common object, the responsibility for such offense attaches exclusively to its actual perpetrator.” Stokley v. State, 254 Ala. 534, 544, 49 So.2d 284 (1950). This principle is illustrated in the situation where two persons are jointly indicted and tried for murder, and the evidence shows that one fired the fatal shot, while the other cut the deceased with a knife during the difficulty. In that case, unless preconcert or community of action between the two defendants is shown, the latter is not guilty of murder unless the cut with the knife contributed to the death of the deceased. Jordan v. State, 79 Ala. 9, 13 (1885). See also Winter v. State, 123 Ala. 1, 26 So. 949 (1899); Williams v. State, 81 Ala. 1, 5, 1 So. 179 (1887); Frank v. State, 27 Ala. 37, 43 (1855).

The legal principle involved is covered in F. Wharton, The Law Of Homicide, Section 44 (1907).

“Two persons acting independently may contribute to the death of another, so that each will be guilty of the homicide; and one who, with a deadly weapon, attempts to strike a person who is at the same time struck by another with a deadly weapon, death resulting, is a joint principal in the offense. And where a fight occurred between two persons, and a third took part in it in favor of one of them, and both inflicted injuries upon the other by blows and kicks, and the latter died, the cause of death being a rupture of an artery in the head caused by the blows or kicks received from them, both are to be regarded as equally guilty of causing death. So, a person may be criminally responsible as principal for homicide when death resulted from the joint negligence of himself and another. And joint principals may be convicted of different degrees. Where two persons acted independently, however, each can be held responsible only for the result of his own acts, and unless such acts contributed to the death, the doer is not responsible for the homicide. Death must have ensued as the result of the act of the person sought to be charged. And though two persons simultaneously assault another, and one of them causes his death, the other is not criminally responsible where there was no mutual understanding that they would injure the person killed, and the slayer acted without the knowledge or participation of the other. And where two persons each shot at another at the same moment, and the jury in a prosecution for the killing are doubtful which of the two shots proved fatal, they cannot infer that the shot was fired by either one or the other of the two, or that the killing was wilful, deliberate, and premeditated, constituting murder in the first degree. But a person actually present assisting to the extent of his ability in the accomplishment of a homicide is guilty as principal in the first degree, without reference to the extent or effectiveness of the assistance rendered by him.”

To render a defendant guilty, it, is not necessary that the blow given by him, or his wrongful act, was the sole cause of death. Even if the blow or act was only a partial cause accelerating death, the defendant is nevertheless guilty. Flanagan v. State, 369 So.2d 46, 49 (Ala.Cr.App.1979). One charged with murder, who inflicted the fatal blow, cannot escape liability from the fact that other blows were subsequently inflicted by others which hastened the death. Tidwell v. State, 70 Ala. 33, 45-6 (1881).

Daniel and Phillip could both be properly convicted of Coleman’s murder, even though they acted independently, if each inflicted an injury that caused, contributed to, or accelerated Coleman’s death. “(Although a man cannot be killed twice, two persons acting independently may so contribute to his death that each will be guilty of homicide.” Wharton at Section 31.

It is undisputed that Daniel stabbed Coleman. The only issue was whether it was in self-defense. It is also undisputed that Phillip attacked Coleman immediately after Daniel had stabbed Coleman and while Coleman was still on the floor. Coleman was stabbed or cut seven times. One of the fatal stab wounds was inflicted in a direction different from the other injuries. There was evidence from which the jury could infer that Phillip carefully concealed a knife on his person at the time of his arrest and that he gave it to the police only after he had washed it in an attempt to remove any trace of blood. These acts of Phillip following his arrest constitute a consciousness of guilt which the jury could properly consider in determining his participation in Coleman’s murder. Landry v. State, 56 Ala.App. 421, 321 So.2d 759 (1975); Pelham v. State, 24 Ala.App. 330, 134 So. 888, cert. denied, 223 Ala. 155, 134 So. 890 (1931). The fact that it could not be proven which knife inflicted each particular wound was also a circumstance for the jury to consider. Under the facts of this case, there is no violation of the principle that, where a person is killed and it cannot be ascertained which of several persons did it, all must be acquitted. Wharton at Section 31.

Applying the principles set out in Dolvin v. State, 391 So.2d 133 (Ala.1980), and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979), we find the evidence sufficient to sustain the convictions of both Daniel and Phillip for murder. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Johnny L. HUGHES v. STATE.
    8 Div. 927.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 27, 1984 Alabama Supreme Court 83-279.

      Thomas E. Parker, Jr. of Cartron & Parker, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer Mullins, Asst. Atty. Gen., for appel-lee.
   SAM W. TAYLOR, Judge.

Johnny L. Hughes was indicted for the offenses of burglary, theft and receiving stolen property. There was submitted to the court an Ireland form properly executed, showing the minimum sentence to be one year and one day and the maximum 10 years. The appellant entered a plea of guilty, with the court observing that these three charges, theft in the second degree, burglary in the third degree and receiving stolen property, were all class C felonies. The following then occurred:

“THE COURT: Has he any previous convictions?
“MR. BAXTER: I do not believe he has any previous felony convictions, Your Honor.
“MR. WEBSTER: None were made known to me, Judge.
“THE COURT: You understand then that sentencing is up to the Judge in the case between one year and one day imprisonment and ten years’ imprisonment and there can be a fine up to $5,000; you understand that?
“THE DEFENDANT: Yes, sir.”

The appellant then pleaded guilty and a presentence investigation was requested on the defendant’s application for probation and a date set. Then, the following transpired:

“MR. WEBSTER: Judge, Mr. Beasley just indicated to me that he thought the defendant did have a prior conviction, so I would like an opportunity to check that out prior to any sentencing being imposed.
“THE COURT: Let me go back here then. Mr. Hughes, before I accept your plea of guilty, and I may set it aside, you have entered a plea of guilty, you understand now if you have a prior conviction that is going to accelerate the minimum punishment and the maximum punishment with which you can be faced. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you also understand that we are going to know about it by the time we get through with these pre-sentence investigation if you do have.
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you have any?
“THE DEFENDANT: Yes, sir.

After other discussion, it was stated:

“MR. WEBSTER: We show a plea to Petty Larceny at one time arising out of a Grand Larceny charge. We also show a burglary III conviction. This is just an FBI Rap Sheet. It is not a record of conviction We would like an opportunity to check that out. It shows confinement for two years, and the detective informs me that he has just gotten out of the penitentiary.
“THE COURT: Have you been in the penitentiary, Mr. Hughes?
“THE DEFENDANT: Yes, sir.
“THE COURT: On what charge?
“THE DEFENDANT: Burglary.
“MR. BAXTER: Judge, in discussing with Mr. Morgan we thought it was—
“THE COURT: Mr. Hughes, do you want to maintain your plea of guilty to this charge?
“THE DEFENDANT: Yes, sir.
“THE COURT: You understand, sir, that if you have shown to have been convicted of a previous burglary that the minimum sentence would be two years and the maximum sentence would be twenty years?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand that sentencing is up to the Judge?
“THE DEFENDANT: Yes, sir.
“THE COURT: I give you the opportunity now to withdraw your plea if you choose to do that.
“THE DEFENDANT: I remain guilty.
“THE COURT: Sir?
“THE DEFENDANT: Guilty.
“THE COURT: You insist on your guilty plea?
“THE DEFENDANT: Yes, sir.
“THE COURT: Mr. Hughes, let me inform you of one other thing. I am doing my best to inform you of the minimum and maximum punishment under the law that is available to you based upon your word to me, which has been worthless up until now. You have told me about three different things. So, you understand now that if we find out some more and it becomes under the Habitual Offender Act that the minimum sentence is ten years and the maximum sentence is life, and because you have something that I am unaware of, I am not going to let you withdraw your plea. Only you know.”
“Let me inform you, sir, that if you have two prior felony convictions and you are convicted on this one, the minimum sentence will be ten years and the maximum sentence will be life. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: If you have three previous felony convictions and you are convicted of this charge, there won’t be any minimum sentence or maximum sentence. It would just be life. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: It could be 99 years or life. Do you understand now?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you want to maintain your plea of guilty? You know what your previous record is, I don’t.
“THE DEFENDANT: Yes, sir.
“THE COURT: I accept your plea of guilty with the firm understanding that I am relying on your word. Do you understand that I am relying on what you tell me about your previous convictions to try to inform you of the punishments in the case? Do you understand that?
“THE DEFENDANT: Yes, sir.”

The court, then noting the inaccurate statements made by the appellant, again informed the appellant of the máximums and the mínimums in each case; in case there was one prior felony, two prior felonies or three or more prior felonies. The court then asked the defendant again,

“THE COURT: Do you wish to withdraw your plea?
“THE DEFENDANT: No, sir.
“THE COURT: Then you stand adjudged guilty, and your application for probation will be on the 3rd day of May.”

Appellant was sentenced to twenty years’ imprisonment in the penitentiary. Appellant, with a new attorney, seeks a reversal of his finding of guilty and sentence.

I

Counsel for the appellant attacks the plea and sentence in a number of different ways.

Appellant first contends that his plea of guilty was not intelligently and voluntarily made because his attorney had informed him that the maximum that he would receive was 10 years’ imprisonment. Appellant contends that there existed a “deal” regarding sentence between his appointed attorney and the representative of the district attorney’s office. It was stated in court, however, that this plea was to be a “blind” plea, by which the representative of the district attorney’s office meant that there was no sentencing agreement resulting from plea-bargaining. There is no evidence of the existence of any sentencing agreement. There is every evidence that this court went far beyond what was required in making sure that this appellant knew very clearly what his minimum and maximum sentences might be, based on his number of prior felony convictions. Further, the court was careful to point out that the sentencing was within the discretion of the court itself. The appellant indicated that he did understand that. The appellant’s responses were, of course, “situational”; the court noted this tendency.

II

Appellant next contends that this guilty plea could not have been voluntarily made because he was not given an opportunity to consult with his counsel about withdrawing his plea. From the dialogue quoted above, it is clear that the appellant had his counsel present and participating in every moment of the hearing at which he pleaded guilty and also clear that he understood what the judge was saying to him. Under these circumstances, any failure to consult with counsel in regard to enhanced punishment resulted from the appellant’s failure to be truthful with counsel in regard to his prior felonies. It does appear from the record, R17-18, that the appellant had served 18 months for grand larceny; that he was sentenced to two years for receiving stolen property but was placed on the work release program on that sentence; that he then violated the terms of the work release program. It is inconceivable that the appellant did not know that he had been convicted of a felony in the past. This contention is without merit.

III

Appellant next contends that he was denied due process when the notice to sentence under the Habitual Felony Offender Act was not received until after the guilty plea and that the “Exhibit A” showed one year and one day to ten years to be the possible sentence. We have held in several cases that the application of the Habitual Felony Offender Act is mandatory in every case and not optional. There is no “magic” in the required notice. In this instance it was because of the deliberate concealment of prior felonies by the appellant that the state did not sooner serve the notice of intention to proceed under the Habitual Felony Offender Act. We find that the court did not err in this respect and that appellant’s due process rights were not violated. As to the “Exhibit A” Ireland form showing one year and one day to ten years as being the possible sentence, the quoted portion of the guilty plea hearing above makes it clear that the appellant did know what the correct mínimums and máximums were. There is no merit to these arguments.

IV

Appellant appears to contend that the trial court ruled that it could not grant probation because of the existence of two prior felonies. This court is unable to find in the record any such statement or ruling by the trial court. There is no merit to this contention.

V

Finally, appellant contends that his sentence was inconsistent with the sentence of his co-defendant, Otha C. Jamar. It does not appear that Otha C. Jamar was subject to the provisions of the Habitual Felony Offender Act. In the case of this appellant, the smallest sentence the law could impose was fifteen years. In our opinion, the sentence imposed did not violate the constitutional rights of the appellant under the doctrine of Solem v. Helm, — U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

We find no error committed by the trial court, but rather the appropriate reaction to the changes of events in the course of the case. This case is affirmed.

AFFIRMED.

All the Judges concur except TYSON, J., who concurs in result only.