author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jimmy PITTMAN and Wanda Pittman v. STATE.
    4 Div. 219.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied as to Jimmy Pittman Nov. 30,1984
    Alabama Supreme Court 83-1204.
    Certiorari Pending as to Wanda Pittman Alabama Supreme Court 83-1221.

      Samuel L. Adams, Dothan, for appellants.
    Charles A. Graddick, Atty. Gen., and James E. Hasser, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal of two cases, one against each of the defendants (appellants), which by consent of parties were consolidated for trial before a jury. Jimmy Pittman was found guilty of rape in the first degree, in that he did engage in sexual intercourse with a female by forcible compulsion, in violation of Section 13A-6-61 of the Criminal Code, and Wanda Pittman was found guilty of “aiding and abetting” a male in committing the same alleged rape. Each defendant was sentenced by the court to imprisonment for life.

At the time of the trial, the alleged victim, who testified as a witness for the State, was thirteen years old and was residing at Saint Mary’s Home in Mobile in the custody of the Department of Pensions and Security. During the time of the incident or incidents upon which the prosecutions were based, the victim had been living in the home of the defendants, a married couple. Wanda Pittman was her adoptive mother, and by virtue of that relationship Jimmy Pittman was the victim’s stepfather. The victim had been living with the defendants practically all of her life.

A recital of the sexually explicit testimony pertinent to the alleged crimes is unnecessary for a proper determination of the issues involved on appeal. It should be stated, however, that there was substantial evidence that on one or more occasions Jimmy Pittman had sexual intercourse with the alleged victim. This evidence consisted almost exclusively of the testimony of the alleged victim. Her testimony as to vaginal penetration was corroborated by the testimony of an examining physician.

Jimmy Pittman testified in emphatic denial of sexual intercourse and any attempt to have sexual intercourse with the alleged victim at any time. Wanda Pittman testified emphatically that she had never aided Jimmy Pittman in any effort by him to have sexual intercourse with the alleged victim and had no knowledge of any such incident. The denials of guilt by defendants were bolstered somewhat by testimony of two children of the defendants tending to show that the alleged crimes did not occur. Testimony by Jimmy Pittman’s mother was to the effect that she had witnessed some unbecoming conduct between the alleged victim and some boys. There was substantial testimony by some witnesses as to the good reputation of the defendants.

Five issues are presented in appellants’ brief. However, three pertain exclusively to the case against appellant Wanda Pittman. We will defer consideration thereof until after our discussion of the two issues pertinent to the cases of both appellants.

Appellants assert that the “State did not prove forcible compulsion as alleged in the indictments.”

During the lengthy testimony of the alleged victim, she said:

“A. Okay. He [Jimmy Pittman] came into my room. See, I was holding the door and finally I—
“Q. Let me interrupt you. Did you hear him at the door or what happened?
“A. I heard him trying to unlock it with something. I don’t know what it was.
“Q. You had your door locked?
“A. Yes, sir.
“Q. All right.
“A. And, I lost all my strength and I yelled real loud and I think my brothers woke up, because he went in the room and he asked them if they ever had a nightmare. And they said no. And he told them that is what I was having. So, he came back to my room and I picked up my brush. I was going to hit him with it, because I was seared. He said come to your mother’s room. So, I walked across the hall to my mother’s room. And, I said Mama and she said what in a harsh voice and I turned around to her and I said Mama, why are you mad at me? And she turned back around and I said why are you mad at me. And, you know, I figured out they was mad at me because I woke my brothers up. So they made me lay down on the bed and they started talking. I heard her, heard Mama say leave her alone, leave her alone twice. And then they whispered some more and then Mama said Karen, tell me what you said about the rape. And I told her his name. [This was with reference to an unrelated incident, not involving the alleged victim in the instant case or any member of her family]. She said well, roll over for your daddy and I said no. And she said either you will roll over or I will tie you down. So naturally, I rolled over and he started, you know, raping me. Then, Mama got over there and she unbuttoned my nightshirt and raised up my bra. And then she stuck my knees straight up and then, you know, straight out and then he raped me again. After he got off of me, I left the room.
“Q. What happened after you left the room? Where did you go then?
“A. I went to the bathroom and then I went to my room and went to bed.
“Q. Was there any more contact with him that night?
“A. No.”

Other incidents essentially the same as that just quoted were related in the testimony of the alleged victim.

Notwithstanding the undesirable incoherence in some respects of the testimony of the alleged victim as to the extent of “forcible compulsion,” we are convinced that the testimony was sufficient to present a jury question as to the existence of said element of rape in the first degree. It meets the requirement of the first alternative of “forcible compulsion” of Alabama Criminal Code, § 13A-6-60(8), which sets forth two alternative requirements as follows:

“FORCIBLE COMPULSION. Physical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

It is clear that the force required to consummate rape in the first degree is necessarily relative. The force required to consummate the crime against a mature female is not the standard for application in a case in which the alleged victim is a child thirteen years of age.

The next issue presented by both appellants is thus stated in brief of their counsel:

“WAS A CONVERSATION BETWEEN ZELMA FLOYD, AN EMPLOYEE OF THE HOUSTON COUNTY DEPARTMENT OF PENSIONS AND SECURITY, AND WANDA PITTMAN ADMISSIBLE IN EVIDENCE WHEN THERE WAS NO SHOWING THAT WANDA PITTMAN HAD BEEN ADVISED OF HER RIGHTS ON THE OCCASION AS MRS. PITTMAN WAS UNDER INVESTIGATION BY THE DEPARTMENT FOR THE RAPE FOR WHICH SHE WAS LATER PROSECUTED?”

During the direct examination by the State of the witness Velma Floyd, she testified as follows:

“Q. Did she tell you that she did leave Karen by herself with Jimmy Pittman in a motel in Tallahassee and Karen begged her not to leave her there alone with Jimmy Pittman?
“A. She admitted that to me in my office.
“Q. Did she ever tell you that Karen said she would like to stay or agreed to stay?
“A. No.”

There was no objection by defendant to the quoted inquiry. However, on cross-examination, the witness disclosed that at the time Wanda Pittman told the witness about the incident in a motel in Tallahassee, the witness “never gave any Miranda warning to Wanda Pittman” prior to the time the witness talked with Wanda Pittman. Thereupon, the following occurred on cross-examination:

“Q. And, you never followed the necessary or the other steps necessary for taking a statement from a Defendant?
“MR. SORRELLS [District Attorney]: Judge, we object to that.
“THE COURT: Well, she wasn’t under arrest there, Sam.
“I sustain the objection.
“BY MR. ADAMS:
“Q. At that time, had an investigation centered on Jimmy and Wanda Pittman?
“A. At the time Mrs. Pittman was in my office?
“Q. Right.
“A. Yes, sir.
“MR. ADAMS: That is all. Thank you.
“MR. SORRELLS: That is all we have.
“THE COURT: You may step down.
“(Witness excused).”

Appellants’ argument in their brief as to the issue now under consideration concludes as follows:

“Therefore, it appears that evidence obtained from Mrs. Pittman by Mrs. Floyd should not have been admissible against Mrs. Pittman because she had not been advised of her rights. As this was a critical stage in the prosecution of this case.”

It appears therefrom that appellant Jimmy Pittman presents no issue as to the question as to the admissibility against him of the testimony of Mrs. Floyd. By reason of what we determine hereinafter as to the issues pertinent to the case against Mrs. Pittman exclusively, we find it unnecessary to determine the particular issue now under consideration.

The final contention for a reversal by both appellants is based upon what occurred during the testimony of Donna Hanson, who had been recalled as a witness by defendant in surrebuttal of the testimony of Phillip Hardy, who had testified somewhat disparagingly as to the “general reputation for truth and veracity” of Donna Hanson, whom Phillip Hardy, the principal of Carver Middle School, had known while Donna was a student at the school. Donna Hanson had testified that the alleged victim had told her that Jimmy Pittman never raped her. Principal Hardy had testified on cross-examination by defendants that he had based his disparaging testimony as to the reputation of Donna Hanson on the following:

“A. Because there have been situations where she has not told the truth in the past.
“Q. Has not told the truth to you about what?
“A. Specifically concerning one situation where she and another student that had been in this Court Room also, I believe were in essence, skipping class.
“Q. Who was the other student that was skipping class?
“A. Karen [Surname of alleged victim, now omitted].”

The transcript shows the following during the direct examination of Donna Hanson while she was on the stand as a surrebuttal witness of defendants:

“Q. And, have you been in trouble out there with the principal?
“A. Once.
“Q. All right. What was that trouble about?
“A. Skipping class.
“Q. Who was with you when you skipped class?
“A. Karen_
“Q. What did you tell the principal about skipping class?
“MR. SORRELLS: Judge, can we approach the bench?
“THE COURT: Yes.
“(Thereupon, an off the Record discussion was held between the Court and the Attorneys of Record. Upon completion of said discussion, the following proceedings were had, to-wit:)
“THE COURT: I am not going to let either one of you get into specifics. I sustain the objection.
“MR. ADAMS: For the Record, I would like to ask this question.
“MR. SORRELLS: Judge—
“THE COURT: I am assuming the Court Reporter already has gotten it down, haven’t you?
“MR. SORRELLS: I object to the question.
“THE COURT: And, I sustain the objection.
“MR. ADAMS: I can’t ask her about what she told the principal and why?
“THE COURT: I am not going to allow you to get into specific instances, no, sir.
“MR. ADAMS: All right. That is all. Thank you.
“MR. SORRELLS: No questions.
“THE COURT: You may step down.
“(Witness excused.)
“THE COURT: All right.
“MR. ADAMS: That is all we have.
“MR. SORRELLS: That is all we have.”

There was no further evidence in the case.

In our opinion, the testimony of Principal Hardy in disparagement of the reputation for truth and veracity of the witness Donna Hanson should never have been admitted in evidence. This, for the reason that he was largely basing his testimony on what he himself believed to be an untruthful statement by Donna Hanson, which he said would cause him to “have problems believing her.” Nevertheless, neither on the trial nor on appeal has the question of the admissibility of the testimony of Principal Hardy been raised. We agree with counsel for appellant that the “testimony of Donna Hanson was beneficial to the defendants, as ‘she had testified’ that the alleged victim in the case had said that Jimmy Pittman never raped her.” Nevertheless, we know of no authority that justifies the introduction into the evidence by a party of testimony of a witness for such party that Donna Hanson had told the truth or a falsehood as to what a witness for the other party previously said as to an unrelated matter. The only case cited by appellant on the point is Gibson v. Gaines, 198 Ala. 583, 73 So. 929 (1916), wherein it was held in an action of ejectment, at 198 Ala. 587, 73 So. 929:

“Defendant having given in evidence such declarations of the coterminous landowners, as tending to show the claim of ownership of the Gibsons of the land in question to the fence line, or the line on which the fence was later erected, and to show a recognition by George S. Gaines and Frances A.E. Gaines of such claim of ownership to said line, it is clear that this tendency of the evidence was subject to be rebutted by evidence tending to show conflicting declarations of ownership, of such respective coterminous landowners, made while they were in possession of the respective tracts of land on both sides of the line in dispute. It is the best evidence obtainable; it is a part of the res gestae of possession.”

Gibson v. Gaines is no authority for the proposition now advanced by appellant, which would in effect merely array testimony of a witness for one party against the testimony of a witness for the other party as to whether that which one had previously said to another as to a matter irrelevant to the instant cases was true or false. The trial court was correct in sustaining the objection of the State to such an inquiry.

The next issue considered is one pertaining to the case of Wanda Pittman only, as to which the attorneys for appellant state, “the case against Wanda Pittman is due to be reversed and rendered.” The indictment of Wanda Pittman charges that she “did aid and abet Robert Pittman, a male, to engage in sexual intercourse with Karen _, a female, by forcible compulsion [emphasis supplied].” Nowhere»else in the record proper do we find the name “Robert Pittman.” With that single exception, the male charged with the alleged rape is uniformly referred to in the transcript of the proceeding as Jimmy Pittman; in official documents accompanying the record proper we find his name as Jimmy Floyd Pittman, but nowhere as Robert Pittman. Although others may explain the reason for this discrepancy between the indictment and the evidence, we cannot do so. The difference between the name of the male who allegedly committed rape of the alleged victim as found in the indictment and the name of such person as found in the transcript of the testimony constitutes a material variance between the indictment and the evidence. The only response in the brief of appellee to appellants’ contention as to the variance is that such “variance issue is raised too late for review,” which is supplemented by statements in appellee’s brief that at “no time before or after trial did the Appellants object to the indictment,” that appellants “neither demurred nor [moved] to quash the indictment,” and that because appellants “in their motion to exclude never mentioned the word, ‘variance,’ such an objection is waived and cannot be raised for the first time on appeal.”

We fail to understand why the variance between the indictment and the evidence as to the name of the alleged rapist did not surface more than it did on the trial, but it was mentioned once in the trial court. Soon after the conclusion of the court’s oral charge to the jury, the following occurred:

“THE COURT: All right. Mr. Sorrells, does the State wish to take exception to the Court’s oral charge?
“MR. SORRELLS: The State is satisfied, Your Honor.
“THE COURT: Mr. Adams?
“MR. ADAMS: Yes. We wish to take exception to a portion of it, Your Honor.
“THE COURT: Okay.
“MR. ADAMS: May I approach the Bench with Mr. Sorrells?
“MR. SORRELLS: Uh-huh. (Affirmative response.)
“THE COURT: Okay.
“(Thereupon, an off the Record discussion was held between the Court and the Attorneys of Record. Upon completion of said discussion, the following proceedings were had, to-wit:)
“All right. With that, Ladies and Gentlemen, you may retire and make up your verdicts in this case. And, the Court has prepared forms of verdicts in line with those given you in the Court’s Oral Charge to aid and assist you in arriving at the form of your verdict. You may retire at this time.
“(Thereupon, the trial jury proceeded to the Jury Room in order to deliberate and the following proceedings were held outside the presence and hearing of the Trial Jury, to-wit:)
“THE COURT: All right. Let the Record show that this is out of the presence and hearing of the Trial Jury.
“MR. ADAMS: Your Honor, at this time we would like to make an objection to the Court’s Oral Charge pertaining to the Defendant Wanda Pittman in that the Indictment in this case says that she did aid and abet Robert Pittman. And, the Court charged that she aided and abetted Jimmy Pittman. And, we except to any portion where Jimmy Pittman’s name was used in connection with her.
“THE COURT: All right. We will be at recess until the jury reaches their verdict.”

Nothing further occurred until the jury returned with the verdicts finding the defendant in each case, naming Jimmy Pittman and Wanda Pittman respectively, “guilty of Rape, First Degree as charged in the Indictment.”

Although there was a failure to bring the variance to the attention of the trial court as vividly and emphatically as it should have been, we do not agree with appellee that it was not brought to the attention of the trial court and that it was first raised on appeal. We do not agree with attorneys for the appellants that the case of Wanda Pittman should be reversed and rendered. Her case should be reversed and remanded for further proceedings consistent with this opinion.

By the only other issue pertinent to the case of Wanda Pittman exclusively, counsel for appellants raises the question as to whether the trial court erred in not granting her request for the affirmative charge or for a judgment of acquittal by reason of what he says is a presumption “that the crimes committed by her were committed because of her husband’s coercion.” He cites authorities on the subject of such presumption at common law, but they do not lead to the conclusion that defendant was entitled to the affirmative charge in her favor or a judgment of acquittal by reason of the presumption. Counsel for appellee considers this issue more comprehensively by questioning the present existence of such a presumption and contending that, “even if the presumption still exists,” it was rebutted by evidence sufficient to show that she was not coerced by her husband. Appellee cites Gamble, McElroy’s Alabama Evidence, § 457.06 (3 ed. 1977), which we think correctly and compactly states the law on the subject, with a citation of the authorities relied upon, at page 851, as follows:

“When a woman commits a misdemeanor in the presence of her husband and under his coercion, she generally is excused from criminal liability. If the undisputed evidence shows, or the jury is reasonably satisfied, that the misdemeanor for which a woman is being tried was committed in the present of her husband, there is a rebuttable presumption that she acted under his coercion; and she must be acquitted unless the evidence in the case warrants a finding and satisfies the jury beyond a reasonable doubt that she was not coerced by her husband. “A woman is not excused from criminal liability for a murder committed by her in the presence of her husband even if she acted under his coercion. Whether a woman is excused from criminal liability for her commission of a felony other than murder, in the presence of and under the coercion of her husband, has not been decided by the appellate courts of Alabama. The Supreme Court has merely noted that, under the decisions of other states, the wife’s excuseableness depends upon the nature, grade and heinousness of the felony.”

The particular issue now under consideration is raised for the first time on appeal. It was not mentioned by the trial court or by any of the attorneys for any of the parties during the trial. If it had been raised on the trial, the trial court would have been given an opportunity to determine, as a matter of law, whether the presumption of coercion by the husband exists and, if so, would likely have instructed the jury that it should determine whether the evidence was sufficient to rebut the presumption. There is no contention by appellant that the presumption is not rebuttable. We are convinced that the evidence was sufficient to present a jury issue as to whether the claimed presumption was rebutted by the evidence in the case. We think it appropriate to limit our conclusions as to the particular issue under consideration so as to avoid thereby any semblance of any advisory opinion that could mislead either of the parties in any further proceeding against Wanda Pittman for the crime charged in the instant case against her.

The judgment in the case against Jimmy Pittman should be affirmed. For the reasons stated as to the material variance between the indictment and the proof in the case against Wanda Pittman, the judgment should be reversed and the cause remanded.

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

AFFIRMED IN THE APPEAL OF JIMMY PITTMAN; REVERSED AND REMANDED IN THE APPEAL OF WANDA PITTMAN.

All the Judges concur.

      . The alleged victim’s first name.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Richard Wayne GAINES v. STATE.
    1 Div. 736.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1228.
    J.D. Quinlivan, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

The appellant, Richard Wayne Gaines, was convicted of third-degree burglary, pursuant to § 13A-7-7, Code of Alabama 1975, and sentenced, as an habitual offender, to 15 years’ imprisonment.

The sufficiency of the evidence is not challenged on this appeal.

The sole issue raised on appeal is an allegedly fatal variance between the indictment and the proof presented at trial.

The indictment, in pertinent part, charged the appellant with the burglary of “the property of, Paul Oates, doing business as Diamond Joe’s.” The evidence revealed that the building burglarized was actually owned and operated by Diamond Joe’s, Inc., a corporation created by Paul Oates when he originally purchased the business. The appellant contends that this variance between the indictment and proof mandates that this cause be reversed and rendered. We disagree.

Appellant’s reliance on Aldridge v. State, 88 Ala. 113, 7 So. 48 (1889), is misplaced. The court in Aldridge held that there was a fatal variance between the indictment and proof where the indictment averred ownership in a mere servant of a corporation and the proof revealed ownership in the corporation. The need for the accurate averment of ownership in the corporation, instead of in the servant, was to negate the defendant’s right to break and enter the premises. See, Adams v. State, 13 Ala.App. 330, 69 So. 357 (1915). This purpose cannot be accomplished by averring ownership or possession in a mere servant of a corporation. Aldridge v. State, supra.

Aldridge is inapplicable to the instant case, however, because the indictment herein did not aver ownership in a mere servant. Paul Oates purchased the business and created the corporation, Diamond Joe’s, Inc., to own and operate it. The indictment arguably mis-identified the building burglarized as the property of Paul Oates, but it sufficiently identified the business operated therein as Diamond Joe’s. Although it would have been, technically, more accurate to have identified the business as Diamond Joe’s, Inc., we feel that the averment in the indictment sufficiently negated appellant’s “right to break and enter the premises.”

“Burglary is an offense against possession or occupancy of a building, and the test for determining ownership of premises for purposes of indictment is not title to the property broken and entered, but its occupancy or possession at the time the offense was committed.” Nicholson v. State, 366 So.2d 1142 (Ala.Crim.App.1979); see also, Adams v. State, supra. Where, as in the instant case, the proof shows that the building burglarized was occupied by the establishment named in the indictment “it [is] immaterial who owned the building.” Childs v. State, 43 Ala.App. 529, 194 So.2d 861 (1966), cert. denied, 280 Ala. 711, 194 So.2d 864 (1967); see, Love v. State, 36 Ala.App. 693, 63 So.2d 285 (1953).

Moreover, the constitutional requirements for a sufficient indictment were satisfied. See, Summers v. State, 348 So.2d 1126 (Ala.Crim.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978). The indictment sufficiently identified the offense with which the appellant was charged and the state’s evidence at trial proved the same offense. The identity of the building burglarized and the name of the establishment in possession of the premises were adequately set out in the indictment. Compare, Lockhart v. State, 34 Ala.App. 297, 300, 39 So.2d 40 (1949). The appellant was aware of the offense against which he had to defend and he disputed neither the identification of the building nor the identification of the business which he allegedly burglarized.

Where, by indictment, the defendant is given proper notice and identification of the charges, which are subsequently proven during the trial of his case, “no substantial injury to the defendant results” and there is no material (fatal) variance between the indictment and proof. Vaughn v. State, 236 Ala. 442, 445, 183 So. 428, 430 (1938); House v. State, 380 So.2d 940 (Ala.1979), reversing 380 So.2d 938 (Ala.Crim.App.). Therefore, there was no material variance in this case.

Consequently, this cause is due to be and is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Robert Daniel BROOKS and James Edward Goldsmith v. STATE.
    3 Div. 912.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1212 and 83-1213.
    Charles M. Allen, II, Montgomery, for appellant Goldsmith.
    Edwin L. Yates, Montgomery, for appellant Brooks.
    Charles A. Graddick, Atty. Gen., and James M. Prude, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellants, Robert Daniel Brooks and James Edward Goldsmith, were each indicted by the Montgomery County Grand Jury in its August 1983 term on charges of breaking and entering a vehicle in one case and for theft of property in the third degree, receiving stolen property in the third degree and breaking and entering a vehicle in a second case.

On August 31, 1983, appellants were tried before a jury in a consolidated case. Appellant Brooks was convicted of theft of property in the third degree, receiving stolen property in the third degree and breaking and entering a vehicle. He was sentenced to ten years’ imprisonment as a habitual felony offender. Appellant Goldsmith was convicted on those same charges and also on a charge of breaking and entering a vehicle. He was sentenced as a habitual felony offender to ten years’ imprisonment and ordered to pay $87.24 in restitution in the first case and to fifteen years’ imprisonment and ordered to pay $87.24 in restitution in the second case.

On June 29, 1983, at about 1:45 p.m., while on routine patrol, Officer Robert Rollins of the Alabama State Capitol Police, saw appellants Brooks and Goldsmith in a parking lot behind the State Administrative Building. Goldsmith was standing in front of a green Mercury and Brooks was walking from the rear of the car. A green Ford LTD which was not familiar to Officer Rollins was parked beside the Mercury. Rollins testified at trial that there were generally about eleven cars parked in the lot and that he was familiar with the cars usually parked there. There had been a rash of break-ins involving cars in the State complex and so Rollins drove around the block and returned to the lot to investigate the unusual activity. He found the men driving away in the green Ford LTD. He called in the tag number from the car and followed them for a short distance. He noticed the driver looking in his rear view mirror and a lot of activity in the car. He called for assistance and stopped the car.

Rollins asked appellant Brooks, who was the driver of the car, for his driver’s license, and when Brooks failed to produce one, Rollins issued a citation for driving without a license. Brooks informed him that the car belonged to Michael Brooks, his cousin. Rollins and an assisting officer, who had arrived in the meantime, noticed eight-track tapes, a sweater, a coat and hub caps within plain view inside the car. The officers called the Montgomery Police Department and requested that the two men drive with them to their headquarters.

Rollins returned to the parking lot where he had first seen appellants and found the window on the driver’s side of the green Mercury down, a large gash under the trunk lock and the lock pulled out. In addition, a tire and a hubcap were partially removed from a Pontiac Grand Prix in the parking lot. He located the owners of the cars and confirmed that the cars had been broken into and items stolen from them. The owners identified the eight-track tapes, coat and sweater seen in appellant’s car as their property.

Both appellants allege that they were unlawfully arrested and illegally detained while law enforcement officers obtained evidence subsequently used against them at trial.

It is clear that an investigative detention of a motor vehicle is constitutionally permissible where the investigating officer has specific and articulable reason to believe that criminal activity has occurred or is going to occur. Thatch v. State, 397 So.2d 246 (Ala.Crim.App.1981), cert. denied, 397 So.2d 253 (Ala.) A police officer may stop an individual to make an investigation even though he does not have probable cause to arrest that person. Spradley v. State, 414 So.2d 170 (Ala.Crim.App.1982). The strength of the information necessary for an investigatory detention is far less than that required for an arrest or a search. Thatch, supra; Luker v. State, 358 So.2d 504 (Ala.Crim.App.1978).

Under the facts of the case before us, there was ample justification for investigatory detention of the appellants. The discovery by the police officers of property which they suspected to have been stolen was, under the circumstances, justification for extending the investigatory detention and requesting that the appellants accompany the officers to their headquarters. Harper v. State, 395 So.2d 150 (Ala.Crim.App.1981).

In addition, appellants contend that certain physical evidence should not have been admitted at trial. There was, however, no objection to the admission of the evidence at trial; hence, there is nothing preserved for this court to review. See, e.g. Whorton v. State, 422 So.2d 812 (Ala.Crim.App.); Ala. Digest, Criminal Law, Key No. 1045.

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Allen Louis James JOHNSON v. STATE.
    1 Div. 720.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 31, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1285.
    James H. Lackey, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Johnson was indicted and convicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. He was sentenced as an habitual offender to thirty years’ imprisonment. Three issues are presented on appeal.

I

Johnson argues that the trial court erred by denying his motion to produce a copy of any and all statements he made to the police. The trial court granted this motion and ordered the District Attorney to produce the following items to the defense:

“(1) All statements of the Defendant which are reduced to writing and signed or otherwise adopted by the Defendant;
(2) All statements of the Defendant which are electronically recorded or taped, and any transcript thereof;
(3) The substance of any oral statements made by the Defendant which are not included within (1) and (2) hereof;
(4) Any and all evidence tending to exculpate the guilt of the Defendant.”

The record also reveals that prior to trial the following occurred:

“MISS PERRY [Defense Counsel]: Judge we want to file a motion on the record to compel the District Attorney to produce to me a statement or a copy of the statement that my client made. The statement has been reduced to writing, it’s incriminatory, it is also Brady material, and I think we have a right to it and we would like a copy of it right now, especially if they are going to introduce—
“THE COURT: We don’t need all that speech.
“If you’ve got a statement from him, give it to her.
“MR. BEEBE [Assistant District Attorney]: What I have, and she knows this, she came to my office a week ago, I have a police report that has a whole bunch of things in it, including a statement, oral statement, made by the Defendant. David Vaughn gave her a copy of it at one time.
“MISS PERRY: He did not, Judge. I checked my records—
“MR. BEEBE: Excuse me. I let you talk, Linda. But, in any event, I read her out loud that portion of the police report that contained his statement and gave her ample opportunity to take notes or whatever she wanted to do. Now, I don’t have any objection, as a rule, Judge, to turning everything over, but in this particular case—
“THE COURT: Did you read to her the statement in question?
“MR. BEEBE: Yes, sir.
“THE COURT: How long ago?
“MR. BEEBE: Thursday, it was in my office, Thursday.
“MISS PERRY: Judge, it was not Thursday, it was about a week ago.
“MR. BEEBE: When was it, David? You were there.
“MR. VAUGHN [Witness]: It was last week.
“THE COURT: Well, that’s good enough then.
“MISS PERRY: Judge, it’s reduced to writing.
“THE COURT: So what?
“MISS PERRY: I can’t remember — he didn’t give me a—
“THE COURT: You’re not entitled to his — you’re not entitled to the rest of the report. If he gave you what you’re entitled to, there’s no reason to object.
“MISS PERRY: Judge, I have seen the statement months ago. Predominately it was a statement more than anything else and it was incriminatory and at the same time it was exculpatory.
“THE COURT: Well, if you saw it months ago and had it read to you a week ago, why should you be asking me again?
“MISS PERRY: Just because that statement is going to be introduced at trial—
“THE COURT: The answer is denied. What else?
“MISS PERRY: Judge, if I can’t get a copy of the statement, am I — would you instruct the D.A. to read the statement to me once again? I had no opportunity to take any notes of the statement or to transcribe it myself. I’d like a chance to transcribe the statement myself if he reads it to me.
“THE COURT: Well, why didn’t you do this a month ago, why didn’t you do this last week?
“MISS PERRY: Judge, I didn’t have time in his office. He was a busy man. He told me that day.
“THE COURT: Well, before he uses any statement, I’ll have him read it to you first. All right, what else do you want?
“MISS PERRY: Okay, Judge, I’ve got a motion to suppress the statement.
“THE COURT: Come on, let’s go.
“MR. BEEBE: David is going to be my police officer.
(Witness sworn.)
“MR. BEEBE: Judge, can we just put in the record, to make things simple, I’ll give her a copy of the statement. I think you know me well enough to know that generally I believe in total open file discovery. In this particular situation it’s got all kinds of other things in there, but—
“THE COURT: You don’t have to give the other things.
“MR. BEEBE: My main problem is I’ve got things highlighted and circled and underlined and everything and I didn’t want to give her my copy.
“THE COURT: You don’t have to.”

It is undisputed that the statement was not a verbatim account of Johnson’s conversation with Corporal Vaughn and was neither signed nor authenticated by Johnson. Corporal Vaughn testified that immediately after Johnson gave the oral statement, he [Vaughn] paraphrased and typed it. Under these circumstances, the State complied with subsection (3) of the trial court’s order on the motion to produce. Compare, Rule 18.1(a)(2), Ala.R. Crim.P.Temp. (effective April 1, 1984).

Johnson also contends that the court erred by overruling his request for a copy of the statement for use during cross examination of Corporal Vaughn since he read from the statement on the stand. During the pretrial hearing on the motion to suppress, defense counsel made the following objection during the State’s direct examination of Corporal Vaughn:

“MISS PERRY: Judge, he’s reading from that paper. I’d like to see it before he reads from it.
“THE COURT: We’ve already established that you’ve seen it twice. Overruled.”

At this hearing Vaughn read the entire statement into evidence. Next, during Vaughn’s trial testimony, defense counsel interjected:

“MISS PERRY: Judge, I still have yet to receive a copy of the statement or to have it read to me today. I’m objecting to any testimony about the statement since I haven’t seen it and I have not read — they have not read it over with me, as they said they would, and give me an opportunity to take notes, at least.
“MR. BEEBE: I believe he’s [sic] testified to the statement.
“THE COURT: Go ahead. Anything else?
“MISS PERRY: That’s it, Judge.
“THE COURT: Overruled.”

“When a witness, testifying on direct examination, uses a writing to refresh his recollection, the party against whom the witness is called has the right, no later than upon cross-examination, to inspect the writing on demand.” C. Gamble, McElroy’s Alabama Evidence § 116.02(7) (3rd ed. 1977). In the case before us, it is clear that defense counsel had previously been made aware of the contents of Johnson’s statement; only the time that the statement was read to her was in dispute. The trial judge observed that counsel had “seen it twice.” Defense counsel cross examined Vaughn about the statement at the hearing on the motion to suppress. Under these circumstances, we cannot find reversible error in failing to allow counsel to inspect the statement during the testimony of Corporal Vaughn. As this Court stated in Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973):

“While it is true that a court’s refusal to permit defense counsel to see and examine a memorandum used by the witness on the stand to refresh his memory constitutes reversible error, yet the rule is subject to reason and the whole of the record convinces us that there was no error in this ruling of the Court.” 50 Ala.App. at 54, 276 So.2d at 639 (citations omitted).

ii

Johnson claims that the indictment was so unclear that it did not sufficiently apprise him of what he was called upon to defend. In pertinent part, the indictment charges that Johnson “did in the course of committing a theft of cigarettes, the specific denomination(s) of said currency being unknown to the Grand Jury, of the approximate aggregate value of one hundred eighty four dollars ($184.00), ...” (Emphasis added.) Johnson maintains that the reference to the theft of cigarettes followed by the statement that the “specific denomination of said currency ” was unknown left him uncertain whether he was charged with a theft of cigarettes, or a theft of money.

While the language of the indictment is faulty, the objectionable portion is immaterial in a charge of robbery. “The present robbery statutes ... do not require a ‘taking’ of property, Marvin v. State, 407 So.2d 576 (Ala.Cr.App.1981); Alabama Code §§ 13A-8-40 through 13A-8-44 (1975) (Commentary), so that not only is the value of the property immaterial, but also the indictment need not allege an actual theft to constitute the offense.” Grace v. State, 431 So.2d 1331, 1333 (Ala.Cr.App.1982).

Furthermore, the allegation that the specific denomination of the currency was unknown to the Grand Jury is surplusage. See Ware v. State, 12 Ala.App. 101, 67 So. 763 (1914). “As long as the remaining portions of the indictment validly charge a crime, the existence of surplusage in the indictment will not affect the validity of a conviction.” Johnson v. State, 405 So.2d 149, 153 (Ala.Cr.App.1981). The remainder of the indictment, omitting the surplusage, clearly charges a robbery during the course of committing a theft of cigarettes. In our judgment, Johnson was sufficiently informed of the charge against him and was not harmed by the unnecessary averment.

Ill

Johnson maintains that the court erroneously refused several of his written requested charges. A review of the record indicates, however, that he did not timely object to the court’s refusal to give the charges. See Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, 414 So.2d 993 (Ala.1982).

At the conclusion of the court’s oral charge, the jury retired with instructions “not [to] start any actual deliberations.” Only then did defense counsel tender her written requested charges to the trial judge. The court informed counsel that it considered the charges to have been filed late, but stated that he would “call the jury back in and give three of them, but only three.” There was no objection to the court’s refusal to give the remainder of the charges. The court then read the three charges and told the jury, “Here is the form of verdict. Start deliberating it.” (Emphasis added.) The following exchange then occurred:

“(At 3:47 p.m. the jury retired to commence deliberations.)
“MISS PERRY: For the record—
“THE COURT: Go ahead.
“MISS PERRY: Okay, for the record, I am going to take exception and I am going to object to your refusal to give my requested charges number—
' “THE COURT: All of them, whatever all of them are.
“MISS PERRY: Did you mark them refused?
“THE COURT: Oh, yes, they will have my name on them.
“MISS PERRY: Okay, we note our objection and our exceptions.”

Rule 14, Ala.R.Crim.P.Temp., provides that “[n]o party may assign as error the court’s giving or failing to give a written instruction ... unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.” (Emphasis added.) Here, while the court excused counsel’s lateness in tendering the charges and gave three of them anyway, counsel’s objection to the failure to give the rest was untimely since the jury had already retired to consider its verdict.

The judgment of the Mobile Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: TAYLOR, Judge.

text:
    Leonard Lynn PEEVY v. STATE.
    3 Div. 842.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1207.

      John B. Byrd, Jr. of Caffey & Byrd, Brewton, for appellant.
    Charles A. Graddick, Atty. Gen., and H. William Wasden, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant Leonard Lynn Peevy was the tax collector of Escambia County, Alabama. He was accused of the systematic conversion of public funds after an audit revealed a pattern of theft. The authorities were alerted to the need for a cash audit after it came to their attention that the appellant had transferred $23,000 in personal funds back into the tax collector’s official bank account. A cash audit indicated that $48,765.55 had been collected by the tax collector but could not be accounted for as of the final date covered by the audit. A full investigation by the state indicated that over $51,000 in currency had been deposited in the appellant’s personal bank accounts during the same period. The appellant then proceeded to eliminate the $48,000 shortage by transferring money from his personal bank accounts into his official tax collector’s account.

Under the provisions of § 40-5-36, Code of Alabama 1975, the duty of a county tax collector is to collect tax money and pay it out on the first and fifteenth days of each month. On the days he pays out, the tax collector issues a report to the state treasurer, county treasurer, and school board treasurer, telling them how much he has collected for them during the pay period. Disbursement to these agencies must be made within five days of issuing the reports of collections. The tax year begins on July 1 of each year, and the tax collector must make a final settlement with all tax recipients by that time, according to the provisions of § 40-5-44, Code of Alabama 1975. This final settlement date makes allowance for payment of balances due as a result of late taxes collected, property reappraised and other reasons. The two principal sources of tax money are ad valorem tax on real estate and ad valorem tax on motor vehicles. The tax collector is advised by the tax assessor as to how much is to be paid and has the duty of collecting the figure as reported to him. Receipts were made in the appellant’s office for all tax money paid over the counter. At the end of each business day the receipts in the collector’s office were to be checked and totaled and then balanced with the amount of money received. The money was placed in an office vault or safe until deposited in the bank. Only the appellant and the chief clerk had keys to the vault.

The official bank account for the appellant’s office was under the name, “Leonard Peevy, Tax Collector, Escambia County, Alabama,” in the First Progressive Bank of Brewton, Alabama. This was the only official bank account, except for a small refund account which did not have any money in it at the close of the audit.

During the audit period, contrary to established procedure, daily deposits were not made to this account. Cash was left in the office vault over a period of several days.

In actual practice the appellant also delayed his disbursements. The auditors could not say how much money had been collected during any given month during the period audited, because the receipts were not totaled from day to day. Appellant had access to large amounts of cash over periods of several months by virtue of these variances from statutory procedure.

The appellant had two other bank accounts. Both were personal checking accounts in the name of “Leonard L. or Lucille B. Peevy.” One was with the First Progressive Bank and the other at the Bank of Brewton. The Peevys’ home address and phone number were on these accounts. Appellant deposited $51,298.70 into these two accounts during the twenty-one month audit period in addition to his and his wife’s salaries and other accountable income with which the funds were co-mingled.

The State Department of Examiners of Public Accounts, during a routine annual audit in May 1982, noticed that a cashier’s check payable to the appellant for over $23,000 had been deposited into the tax collector’s official account on June 30,1981. This had been done so that appellant could make final settlement with the state and county at the end of that tax year. This was the only deposit to that account of non-tax money. The examiners also discovered that the collections of the tax collector’s office were over $19,000 more than the. deposits for the same period. This audit was concluded around June 24, 1982, and an “exit conference”, a standard procedure, was had by Mr. Warren Folmar of the Department of Examiners of Public Accounts and the appellant, to discuss the audit findings. Folmar testified that at this conference the appellant stated that he had personally taken out a loan for the $23,000, that he deposited the proceeds into the official tax collector’s account because his chief clerk had' told him the office was short by that sum.

This was the “red flag” which led to further investigations. Folmar then proceeded to conduct a cash audit. This time, he examined the bundles of paid receipts for a period October 9, 1980, through June 30,1982. These receipts showed how much money was paid over the counter during that time. The procedure employed by the examiners was not actually to read each of the 100,000 receipts, but rather to closely scrutinize the tapes as to each bundle of receipts and assure that each amount was correct when taken from the corresponding receipt. Only when there were indications of discrepancy would the auditor physically run another tape on that group of receipts. He did, in fact, recalculate approximately 30,000 receipts.

As of the closing date of the time span covered by the audit, $51,765.27 should have been either in the tax collector’s account in the bank or on hand. Only $1,978.72 could be accounted for. Approximately $48,765.55 in tax collections was not accounted for. At the conclusion of this audit, the auditor had another conversation with Tax Collector Peevy, who at this time made a statement to him that he had been “putting the money back in dribbles.” Peevy then stated that since the shortage in money had been uncovered, he “might as well put it all back at once.” Appellant began replacing money in the official tax collector’s bank account so that by the end of August 1982, no shortage existed. Approximately $47,000 that was deposited into the tax collector’s account was not attributable directly to tax collections, but rather to transfers from Peevy’s personal bank accounts.

On September 29, 1982, at the exit conference regarding the findings of the case audit, Warren Folmar, Frank Brooks, and Holcomb Kerns of the Department of Examiners of Public Accounts were present. Mr. Peevy at this conference, made a statement that he had used the money from the tax collections to repay a personal loan in the approximate amount of $23,000. He said that the money he got from this loan had been deposited into the official tax collector’s account to satisfy an earlier shortage.

Other state’s evidence tended to indicate that the appellant had repaid a $10,000 personal note in cash during the time period covered by the audit. Appellant had made large deposits of cash to his other bank accounts. The president of the First Progressive Bank of Brewton testified that the appellant had borrowed $134,408.28 from October 1980 through June 1982 from his bank, of which he had repaid about $65,379.80. The proceeds of one of these loans taken out by Peevy were used to purchase the $23,000 cashier’s check which he deposited into the Escambia County Tax Collector’s account on June 30, 1981. Additional testimony indicated deposits of large sums of cash into Peevy’s personal checking account at the First Progressive Bank.

The defense in this case was the contention that a deposit into the other bank accounts of the appellant should be treated as a deposit into the tax collector’s account rather than a conversion of public funds to private use.

I

Appellant first contends that the court erred in permitting the state’s attorneys and witnesses to characterize the bank accounts as “official accounts” and “personal accounts” and bank transactions as “personal” or “official.” Peevy also objects to the use of the phrase “putting money back.” The essence of this case involves the alleged conversion of public funds to private use. It was, therefore, necessary for distinctions to be made among the different bank accounts. On the one hand, there existed the account maintained by the tax collector’s office. On the other hand, there existed personal checking accounts in the name of the appellant and his wife with their home address and telephone number.

These characterizations of the bank accounts, in order to constitute reversible error, must be unsupported by any evidence. During the examination of Mrs. Merilie Booker, a 36-year veteran employee of the tax collector’s office and chief clerk, the following evidence was adduced:

“Q: (MR. WASDEN): Mrs. Booker, how long have you worked for the Tax Collector’s office here in Escambia County?
“A: Thirty-six years.
“Q: How many tax collectors have served in office while you have been working in that office?
“A: Five.
“Q: Does that include Mr. Peevy?
“A: Yes.
“Q: He is the fifth then.
“A: Yes.
“Q: Who were the previous four, if you can recall?
“A: Mr. G.S. Byrne; Mr. J.R. Roby; Mr. White; Mrs. White and Mr. Peevy.
“Q: Mr. Peevy. What were your responsibilities under the first four? What did you do in the office under those tax collectors generally?
“A: Generally, I did everything that came at hand. I did receipts, made reports and accepted money, made deposits and everything.
“Q: When you say ‘deposits,’ Mrs. Booker, what are your speaking of? Deposits of what to what?
“A: Money to the bank.
“Q: What kind of money, Mrs. Booker? Tax Collections?
“A: Tax Collector’s money.
“Q: What account at the bank do you deposit this money in?
“A: To the Tax Collector’s account.
“Q: Does the Tax Collector maintain an official Tax Collector’s account?
“A: Yes, he does.
“Q: And how many official Tax Collector’s accounts does the Tax Collector maintain?
“A: One account.
“Q: And who does the money in this account belong to, Mrs. Booker?
“A: It belongs to the County or the different.. .not the County but the individuals that it goes to.
“Q: I think I can get it out better this way. Do you draw checks on this account?
“A: Yes.
“Q: And who else writes checks on this account?
“A: Mr. Peevy.
“Q: And who all do you write checks on this account to? Who do you send money to?
“A: The state; county; to the hospital; to the cities, four cities, and to the schools and courthouse.
“Q: How often do you pay out money out of this account, Mrs. Booker?
“A: Twice a month.”

Another witness, Mr. Edwin Wells, president of the First Progressive Bank of Brewton, testified, in part, as follows:

“Q: Mr. Wells, I am not sure we made this clear the first time. These checks, State’s Exhibit 4, what account were they drawn on?
“A: They were drawn on Leonard L. or Lucille B. Peevy’s personal account number 11-052-46.
“Q: Made out to whom?
“A: Leonard Peevy, Tax Collector.
“Q: What account were they deposited into?
“A: In the official account, Tax Collector’s account.
“Q: In the official Tax Collector’s account of Leonard Peevy, Escambia County?
“A: Yes.
“MR. ANDERSON: That is all.”

It has long been the rule in this state that in their closing arguments, counsel are permitted wide latitude in drawing reasonable inferences from the evidence. Manigan v. State, 402 So.2d 1063 (Ala.Crim.App.), writ denied, Ex parte Manigan, 402 So.2d 1072 (Ala.1981), states, “To constitute reversible error, the statement of counsel in argument must be made as a fact which is unsupported by any evidence, and the argument must be pertinent to the issues at trial or its natural tendency must be to influence the finding of the jury.” 402 So.2d at 1072 (emphasis in original) [court citing Flint v. State, 370 So.2d 332 (Ala.Crim.App.1979) ].

The same principles should be applied to a reference or characterization by counsel in the course of the trial. We recognize the appellant’s defense was to deny any distinction between his personal checking account and the tax collector’s account. The characterization employed by the prosecutors was supported by facts in evidence as set out above. The facts could hardly have been presented to the jury without distinguishing between the various bank accounts. No error occurred in this respect.

II

Appellant next contends that the court erred in admitting into evidence the “special cash audit” report. We cannot agree.

The audit report was sworn to and certified to be true and correct by field auditor Warren Folmar and by Ronald L. Jones, Chief Examiner of the Department of Examiners of Public Accounts. The audit report included the statement that the appellant had used tax funds to pay a personal loan. The report states, “When the deposit and loan were discussed with the Tax Collector, he stated that the money was deposited in order to have sufficient funds to make the final settlement and that the loan was repaid in part from tax collections in the succeeding tax year.” This was a finding made under oath by the auditors and as such was admissible as part of the report.

The audit report was prepared pursuant to § 41-5-21, Code of Alabama 1975, which states in this regard that “such reports shall be public records, and prima facie evidence of what they charge.” In Chambers v. State, 352 So.2d 21 (Ala.Crim.App.1977), introduction of a copy of such a report was unsuccessfully challenged.

III

Peevy asserts that statements made by him to the auditor were improperly received into evidence. He contends specifically that he was not informed of his constitutional rights as required by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The state argues in turn that the Miranda warnings are not required in a non-custodial circumstance, citing Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). In Beck-with, Internal Revenue Service agents interviewed a taxpayer at his office and at his home regarding potential criminal income tax violations. A criminal investigation admittedly had already commenced at the time of the interview. The court stated:

“The interview with the government agency in a situation such as the one shown by this record simply does not present the elements which the Miranda court found so inherently coercive as to require its holding. Although the ‘focus’ of an investigation may indeed have been on Beckwith at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda court as the basis for its holding. Miranda specifically defined ‘focus’, for its purposes, as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ 384 U.S. at 444, 16 L.Ed.2d 694, 86 S.Ct. 1602.”

Similarly, in United States v. Wright, 685 F.2d 142, 143 (5th Cir.1982), the Fifth Circuit Court of Appeals observed:

“[M]oreover, the IRS agents conducted their interview in surroundings familiar to Wright and there is no evidence that the agents restrained or coerced him in any way. Wright accompanied the agents freely to the office, was questioned for only an hour, and then left. On these facts, the district court properly determined that Miranda was inapplicable.... ” (citing cases)

The conversations here took place at the Escambia County Courthouse, some in the appellant’s own office. He was not in custody. He was not otherwise deprived of his freedom of action in any significant way. Miranda does not apply to the “exit conferences” in this case. The statements by appellant Peevy to the auditors were properly admissible into evidence.

IV

Appellant next asserts that the court erred in refusing his requested charge as to the definition of the word “deprived”. The trial court instructed the jury on both counts of the indictment. The first count charged theft of property in the first degree, in violation of § 13A-8-3, Code of Alabama 1975. The second count charged an ethics violation as proscribed by § 36-25-5, Code of Alabama 1975. A second indictment was returned against Peevy for misapplication of property, in violation of § 13A-9-51. The refused charge stated:

“The court charges the jury that in order to convict the defendant, Leonard Peevy, of theft that you must be convinced beyond a reasonable doubt to a moral certainty that he obtained the property of another with the intent permanently to withhold that property.”

This charge the trial court properly refused. We find this charge to be defective in that there are ways to deprive someone of property other than by withholding it permanently. The statutory definition, § 13A-8-l(2), Code of Alabama 1975, is:

“a. To withhold property or cause it to be withheld from a person permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to him; or
“b. To dispose of the property so as to make it unlikely that the owner would recover it; or
“c. To retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or
“d. To sell, give, pledge, or otherwise transfer any interest in the property; or
“e. To subject the property to the claim of a person other than the owner.”

V

Peevy next asserts error by the trial court in denying his motion to consolidate the felony charges and the misdemeanor indictment in this case. The motion was made when the trial proceedings began. Rule 15.3(b), Temp.A.R.Cr.P., requires that in a motion for consolidation the court “may, not later than seven days prior to trial, order that the charges be tried together if the offenses could have been joined in a single indictment_” Appellant’s motion was untimely and the court did not err in denying it. We note that at trial, no written charges were requested with regard to the misdemeanor charge of misapplication of property. Counsel stated “satisfied” with the jury instruction except for the objection dealt with above.

VI

Appellant finally contends that the state failed to prove a prima facie case. A fair capsule of the state’s evidence is that it tended to show the following:

1. A cash audit covering the period of 10-9-80 through 6-30-82, revealed the tax collector’s official account short by over $48,000.
2. During the same 21-month period, over $51,000 cash was deposited to the appellant’s two personal checking accounts without any source being shown for this money.
3. After appellant was informed of the amount of the shortage and the audit was finished, the appellant transferred over $47,000 of funds from his personal accounts back into the tax collector’s official account within six weeks.
4. The appellant admitted that he had take» out a personal loan and placed the loan proceeds in the official account in order to effect a final settlement of the official account for that year. He also admitted that he had taken current tax collections back out of the official account in order to repay the loan. The loan note and the proceeds check were both introduced into evidence.
5. Appellant admitted to the auditors that he was putting the money back in dribbles and that since the shortage had been revealed, that he might as well put it all in at once.
6. The appellant was shown to have incurred substantial indebtednesses during the audit period for reasons unknown.
7.The appellant was shown to have been one of only two people who had access to the office vault where the cash money was kept.

We think a prima facie case was made against the tax collector and the case properly submitted to the jury, who collectively rejected his defense.

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

AFFIRMED.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Johnny RICE v. STATE.
    5 Div. 885.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1210.

      G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Rice appeals the summary dismissal of his pro se petition for writ of habeas corpus challenging the constitutionality of a disciplinary proceeding which resulted in his being deprived of good-time status, loss of store privileges, and change in custody classification. He is represented on appeal by appointed counsel. In his petition he asserts that the institutional officers took disciplinary action against him without providing him with a constitutionally sufficient statement of the reasons for their actions and the evidence upon which they relied. Rice’s petition was dismissed upon the State’s motion. Attached to the motion were certified copies of a disciplinary report, an institutional incident report, and an inmate summary sheet concerning Rice. The “committee findings & reasons” recited in the Disciplinary Report are as follows: “Guilty based on officers and witness testimony.”

The correct method for challenging the decision of a state disciplinary board is by petitioning the appropriate circuit court for a writ of habeas corpus. Williams v. Davis, 386 So.2d 415 (Ala.1980); Washington v. State, 405 So.2d 62 (Ala.Crim.App.1981); Fielding v. State, 409 So.2d 964 (Ala.Crim.App.1981), cert. denied, 409 So.2d 964 (Ala.1982). Habeas corpus is the appropriate remedy in this case.

The State contends that Rice’s petition was not properly verified as required by § 15-21-4, Code of Alabama 1975. This section provides that the petition “[m]ust be verified by the oath of the applicant to the effect that the statements therein contained are true to the best of his knowledge, information and belief .... ” Rice apparently signed his petition before a notary public and adjacent to his signature is the following acknowledgement: “Subscribed & Sworn to before me this 27 day of February, 1984. Margaret B. Hall Notary”. Does this acknowledgement satisfy the requirements of § 15-21-4? We think so. Niceties of pleading are not favored in habeas corpus proceedings. A petition which substantially complies with the provisions of § 15-21-4, and its corollary statutes is all that is necessary to secure the writ and bring before the judge the petitioner and his cause of detention. Ex parte Thomas, 270 Ala. 411, 118 So.2d 738, cert. denied, 363 U.S. 822, 80 S.Ct. 1263, 4 L.Ed.2d 1521 (1960); Ex parte Rockholt, 271 Ala. 68, 122 So.2d 162 (1960), cert. denied, 364 U.S. 935, 81 S.Ct. 384, 5 L.Ed.2d 368 (1961); State v. Thurman, 17 Ala.App. 656, 88 So. 61 (1921). In Powers v. Bryant’s Adm’r., 7 Port. 9 (1838), the Alabama Supreme Court in considering the proper verification for a plea in abatement stated:

“The verification at the foot of the plea, stating it to have been sworn to, and subscribed in open court, (as certified by the Clerk,) is certainly a sufficient compliance with the statute, which requires such pleas to be accompanied with an affidavit of their truth.
“The words ‘sworn to’ clearly refer to the plea, and must be taken to mean, that the testator declared on oath, the facts it set forth were true.”

• The words “sworn to” at the foot of Rice’s petition must be taken to mean that he declared on oath that the allegations set forth in his petition were true, and we are of the opinion that this satisfied the requirements of verification in § 15-21-4.

The case of O’Such v. State, 423 So.2d 317 (Ala.Crim.App.1982), relied upon by the Appellee to support its contention that the petition was not properly verified, is distinguishable from the instant case. In that case the petition was not notarized and there was no jurat of any kind.

In order to satisfy the minimum requirements of due process in a prison disciplinary proceeding, one requirement is that there must be a “written statement by the factfinders as to the evidence relied on and reasons” for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974). In Wolff v. McDonnell, supra, the Supreme Court stated:

“.... a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly. Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others.”

To comply with due process, the Board’s decision must not have been made arbitrarily or capriciously, but should have been based upon substantial legal evidence. Washington v. State, supra. In order to determine whether or not the Board’s decision was indeed based upon substantial evidence, the trial court, as well as the reviewing court, should have a written statement by the factfinders (the disciplinary board) as to the evidence relied on and reasons for the disciplinary action. Washington v. State, supra; Wolff v. McDonnell, supra.

The record in the instant case does not contain a written statement by the disciplinary board setting forth the “ ‘evidence relied on and reasons’ for the disciplinary action” as required by Wolff v. McDonnell, supra. The constitutional requirements of Wolff were not met.

This Court has followed the Wolff standard in determining statements similar to the instant one to fall short of the inmate’s minimal procedural due process rights. See Barker v. State, 437 So.2d 1375 (Ala.Crim.App.1983); Barnhill v. State, 439 So.2d 822 (Ala.Crim.App.1983); Martin v. State, 449 So.2d 801 (Ala.Crim.App.1984); Spooner v. State, 451 So.2d 429 (Ala.Crim.App.1984).

The State contends that the written statement contained in the disciplinary report together with the written record of the testimony attached to the report provided a sufficient finding to satisfy due process. We disagree.

The general finding by the Board does not ensure that prison officials will act fairly. Nor will this finding protect the prisoner against subsequent collateral effects resting upon misunderstanding of the initial decision. The report in and of itself should contain a meaningful statement setting forth the essential facts relied upon.

The circuit court erred in summarily granting the State’s motion to dismiss the petition without a hearing.

Therefore, the trial court’s judgment dismissing Rice’s petition is hereby set aside and vacated and this cause is remanded to the trial court for further proceedings consistent with this opinion.

In view of the reversal of this case on the above ground and the discussion of the issues pertaining to verification of the petition and habeas corpus being the appropriate remedy, it is our opinion that it is unnecessary to address the other issues raised by appellant in his appeal.

REVERSED AND REMANDED.


text:
    Eddie Barnard NEAL v. STATE.
    6 Div. 980.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Nov. 30, 1984 Alabama Supreme Court 83-1225.

      J. Wilson Dinsmore and Larry Waites of Dinsmore, Waites & Stovall, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram and William D. Little, Jr., Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

This appeal follows from the second conviction of Eddie Barnard Neal, under Section 13-ll-2(a)(2), Code of Alabama 1975, for the capital offense of robbery during which the victim was intentionally killed.

With appellant’s first conviction for the robbery and murder of Quenette Shehane the jury recommended a sentence of death, which was commuted by the trial judge to a sentence of life imprisonment without parole. This judgment was affirmed in Neal v. State, 372 So.2d 1331 (Ala.Crim.App.), cert. denied, 372 So.2d 1348 (Ala.1979); however, the case was later reversed and remanded for new trial in accordance with the decisions in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980), construing Alabama’s Death Penalty Act.

On August 13, 1982, appellant was again found guilty of the robbery and murder of Miss Shehane. The jury recommended that he be imprisoned for life without the possibility of parole and the trial court concurred in the jury’s finding, sentencing appellant to life imprisonment without provision for parole.

The facts and circumstances surrounding the robbery and murder of Miss Shehane are set out in detail in Neal, supra, and will not be repeated here.

Appellant raises seven issues for consideration on this appeal. First appellant contends that the trial court erred in denying his motions for judgment of acquittal based on insufficiency of the evidence. He asserts that none of the elements of robbery were sufficiently proven and that, in any case, the evidence in the case pointed to a rape of the victim, then a killing and then a taking of the property. According to appellant, the offense of which he was convicted must begin with a robbery, or attempt to rob, and end with an intentional killing of the victim.

In Thomas v. State, 460 So.2d 207 (Ala.Crim.App.1983), this court held that, when a robbery and murder form a continuous chain of events, the fact the victim was dead when the property was taken would not negate the crime of robbery. Clements v. State, 370 So.2d 708, (Ala.Crim.App.1978), rev’d on other grounds, 370 So.2d 723 (Ala.1979); Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962). In addition, this court held in Thomas, supra, that the killing and robbery of Quenette Shehane on December 20, 1976, between the hours of 6:30 p.m. and 9:30 p.m. were part of a continuous chain of events.

In respect to appellant’s contention concerning sufficiency of the evidence, it is clear that this court, on review, is required to consider the evidence in the light most favorable to the prosecution. Bozeman v. State, 401 So.2d 167 (Ala.Crim.App.), cert. denied, 401 So.2d 171 (Ala.1981); McCord v. State, 373 So.2d 1242 (Ala.Crim.App.1979). Moreover, evidence favorable to the prosecution must be taken as true and the State must be accorded all legitimate inferences therefrom. Jolly v. State, 395 So.2d 1135 (Ala.Crim.App.1981); Johnson v. State, 378 So.2d 1164 (Ala.Crim.App.), cert. denied, 378 So.2d 1173 (Ala.1979).

Miss Shehane’s fiance testified that her television was packed in her car on the evening of December 20, 1978, when she drove to the store to buy a bottle of salad dressing for dinner. The television was not in the car when it was found by the police the following morning.

On the evening of Miss Shehane’s disappearance, John Mays overheard appellant, Thomas (appellant’s fraternity brother) and Jones (a pledge in the fraternity) say they were going out to pick up some young ladies, after which they left. Mays later saw Jones’s car parked beside the U-Tote-M store, one of two stores within one-half mile of Birmingham-Southern College, where Miss Shehane’s fiance awaited her return. Mays heard a young lady yell and saw a man push her into a car which pulled out and which was followed by Jones’s car. On the following day Mays found a note from appellant stating that he had taken Mays’s tennis shoes and left his [appellant’s] boots in their stead. The boots were covered in mud and what appeared to Mays to be blood.

Edward Lynn received a call from Thomas on the night in question asking him to come to a convenience store to pick up the three men. He picked them up and took them to Jones’s apartment. He testified that both appellant and Jones had noticeable amounts of blood on their clothing, which they explained by saying they had been in a fight. Two or three days later Thomas was observed to be in possession of Miss Shehane’s television, and when he was arrested he called his roommate and asked that he get rid of it. Thomas’s palm-print was found on the windshield of Miss Shehane’s car, and he was arrested with the murder weapon in his possession.

When appellant was arrested in California, he was using the alias Eddie Ivory. He said that he knew he had been indicted for the rape and murder of a Birmingham girl, but did not surrender because he was afraid the police had a strong case against him. He testified that he left school in January, after Miss Shehane’s death in December, and that he stayed with his mother in Memphis until he saw the police entering his mother’s house, and then he went to live in California.

From an examination of the record, we find that the State presented sufficient evidence for the jury to conclude, by fair inference, that appellant was guilty, beyond a reasonable doubt, of the crime charged. It is settled law that whether circumstantial evidence tending to implicate a defendant in a crime excludes every other reasonable hypothesis, to a moral certainty, is a question for the jury and not the court. We will not substitute our judgment for that of the jury. Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919).

The next issue appellant raises is whether the trial court erred in admitting the testimony given by Officer Robbins in appellant’s first trial.

In Williams v. State, 375 So.2d 1257, 1269, (Ala.Crim.App.), cert. denied, 375 So.2d 1271 (Ala.1979), this court held that “[testimony of a witness in a former trial is admissible in a second trial when, at the time the witness is deceased, under a disability, is permanently absent from the State or is unavailable by reason of his claim of privilege at the second trial.” (citation omitted) Further, the question of whether the evidence is sufficient to authorize proof of the former testimony of an absent witness is for the trial court. Williams, supra; Hardaman v. State, 17 Ala. App. 49, 81 So. 449 (1919).

At trial arguments on the issue were heard by the court outside the presence of the jury. The state presented evidence that Officer Robbins had not been able to work since his heart attack in May and that he had been hospitalized from May 28 through June 15, 1982, as a result of that heart attack. Letters from Officer Robbins's' physician stated that he was to be hospitalized again on August 9, 1982, the first day of appellant’s trial.

The trial court reviewed the former testimony and observed that it was basically unobjected to by appellant’s counsel, who represented appellant in both trials. The testimony concerned Officer Robbins’s findings at the scene of the crime and what he did with the evidence he found there.

We have searched the record with care and have found no prejudice to appellant in the admission of this testimony from his first trial. There is ample evidence from which the trial judge could have found that the witness was under a disability and his decision on this issue should not be disturbed on appeal.

Appellant next contends that the trial court erred in denying his motions in limine, asking that the court prohibit the State from calling John Mays, Sandra Triplett, and Ramsey Lane to testify at trial. This court recently held, however, that the denial of a motion in limine cannot, in and of itself, rise to the level of reversible error. Brooks v. State, 443 So.2d 1301 (Ala.Crim.App.1983); Oliver v. State, 440 So.2d 1180 (Ala.Crim.App.1983).

In the case at bar, appellant claims that John Mays’s testimony was predictably vague, inconsistent and inadmissible. At trial, appellant was able to establish doubt regarding Mays’s certainty of the date on which certain events occurred, but this doubt, as well as any vagueness or inconsistency in his testimony properly went to the credibility of the witness, and was duly submitted to the jury. Taylor v. State, 408 So.2d 551, (Ala.Crim.App.1981), cert. denied, 408 So.2d 555 (Ala.1982); Wilcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969).

The admissibility of Miss Triplett’s testimony was confirmed in Neal, supra.

Ramsey Lane’s complained of testimony concerned Miss Shehane’s stated destination and purpose when she left him on the night of her robbery and murder. Appellant contends that the testimony should not have been admitted over his hearsay objection. It is clear, however, that all acts done and words spoken pending the commission of a particular act, tending to illustrate or give character to that act, are admissible into evidence as part of the res gestae of the act. Linville v. Crittenden, 272 Ala. 630, 133 So.2d 381 (1961); Roan v. State, 225 Ala. 428, 143 So. 454 (1932); Ward v. Lane, 189 Ala. 340, 66 So. 499 (1914). More specifically, in Thornton v. State, 253 Ala. 444, 45 So.2d 298 (1950), the court held that statements made by a person since deceased, with regard to either the purpose or destination of a trip, no matter how short, was admissible as part of the res gestae of the act. “The res gestae alluded to here is not the res gestae of the main fact — the murder, but the res gestae of the act being performed or immediately contemplated by the declarant, the act of beginning or contemplating the trip or journey.” Thornton, 253 Ala. at 448, 45 So.2d at 301.

Appellant asserts that the trial court erred in denying his motion to ask additional voir dire questions concerning whether potential jurors had formed an opinion in the case. Appellant’s request was properly denied, since as both he and the court thoroughly explored the issue on questioning of the venire and on individual questioning of potential jurors selected by the attorneys. Furthermore, a defendant has no absolute right to interrogate each prospective juror. A decision on this issue is within the sound discretion of the trial judge, whose ruling will not be disturbed on appeal absent an abuse of that discretion. Peterson v. State, 350 So.2d 771 (Ala.Crim.App.1977); Clark v. State, 294 Ala. 493, 318 So.2d 822 (1975).

Appellant further objects to the court’s striking of two potential jurors, one of whom testified that he was physically unable to attend for long periods of time, and one of whom testified that he would be unable to concentrate on evidence presented in the trial since he would be forced to leave his child at home unattended.

Section 12-16-63(a), Code of Alabama (1982 Cum.Supp.), reads as follows:

“Section 12-16-63. Excusing prospective jurors from service.
“(a) The court, upon request of a prospective juror or on its own initiative, shall determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror should be excused from jury service. The jury commission shall enter this determination form on the juror qualification form and the master list.”

The testimony of the two potential jurors was properly accepted as proof of their disqualification. Parker v. State, 7 Ala. 9, 60 So. 995 (1913). The trial court is vested with broad discretion in the excu-sal of prospective jurors. Crawford v. State, 377 So.2d 145 (Ala.Crim.App.), aff'd, 377 So.2d 159 (Ala.1979), rev’d on other grounds, 405 So.2d 702 (Ala.1981). The trial court’s actions in this case were within its sound discretion and should not be disturbed on this appeal.

Finally, appellant contends that the trial court erred in denying twenty-seven separate charges proffered by the defense.

In Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), aff’d, 414 So.2d 993 (Ala.1982), this court recognized that in order to preserve this issue for appellate review, the defendant must object and state his grounds before the jury retires. Furthermore, defendant must specifically except to each of the charges refused, Curtis v. State, 424 So.2d 679 (Ala.Crim.App.1982), and the grounds assigned must be specific. Rowe v. State, 421 So.2d 1352 (Ala.Crim.App.1982).

Defendant’s objections were as follows:

“MR. DINSMORE: Your Honor, the defendant would except to the court’s charge that, as to the capital offense, it related to — it incorrectly related the law as we stated it.
“The law as we understand it, it is my understanding of the law in order to be convicted of the capital offense in a capital case, the defendant must, however, be shown to be the trigger man or that when he was going out to commit the alleged act that death would be the probable and likely result.
“THE COURT: Is that as from in the Enmund case out of Florida?
“MR. DINSMORE: Yes, sir.
“THE COURT: I note your exception, and give you an exception.”

Under Raines v. State, 429 So.2d 1111 (Ala.1982), an accomplice to a robbery where the victim is intentionally killed may be convicted of a capital offense and sentenced to death if the state proves that the defendant was an accomplice to the intentional killing. It is not necessary that defendant have been the trigger man; thus, appellant’s objection embraced an erroneous statement of the law.

“MR. DINSMORE: Thank you, Judge. If I understood your robbery — the robbery-murder, that one under the capital offense could come before the other. • We would submit to this Court that that is an incorrect proposition of the law under the capital offense as charged in the indictment, that robbery must occur first or if one — if Miss Quenette Shehane was murdered and subsequent to that time the T.V. set was taken, it would not be a capital offense.
“THE COURT: Okay, I note your objection and give you an exception to each and every one.”

Under Thomas v. State, 460 So.2d 207 (Ala.Crim.App.1983), this is also an incorrect statement of the law.

“What other than that does the defense say to the Court’s charge?
“Other than the exceptions as noted, what says the defense to the Court’s charge?
“MR. DINSMORE: We would except to your failure to give our remaining written charges, Your Honor.
“THE COURT: Okay.
“MR. DINSMORE: We feel that they correctly state propositions of law not covered by the written charges — or excuse me, the oral charge of the Court.
“THE COURT: Not covered by the other written requested charges?
“MR. DINSMORE: Yes, sir.
“THE COURT: All right, I note your exception.
“MR. DINSMORE: Thank you.
“THE COURT: All right, anything further?
“MR. DINSMORE: No, sir.”

Under Curtis v. State, 424 So.2d 679 (Ala.Crim.App.1982), and Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), aff’d, 414 So.2d 993 (Ala.1982), defendant must specifically except to the trial judge to each of the charges so refused. The general objection of defendant in this case was not sufficient to preserve the issue for review. In any case, the charges in question were either incorrect propositions of law, or were substantially covered in the court’s oral charge. Campbell v. State, 423 So.2d 284 (Ala.Crim.App.1982).

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.