text:
    Sylvester Earl McDONALD v. STATE.
    1 Div. 622.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Bruce L. Aune, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant, Sylvester Earl McDonald, was indicted by the Mobile County Grand Jury in December of 1982 for the robbery and intentional killing of Daniel F. Wiggins. He was convicted of murder and robbery, first degree, and was sentenced to life imprisonment without parole pursuant to the habitual felony offender statute.

On November 29, 1981, at Orange Grove Housing Project in Mobile, Daniel F. Wiggins was wounded by a gunshot, and later, while hospitalized for treatment of the wound, died. Dr. Leroy Riddick, a forensic pathologist, testified at trial that the underlying cause of Mr. Wiggins’s death was a gunshot wound to the neck.

Johnny Lee Hawkins was a witness to the shooting, as well as to events which led up to the incident. He testified that he, appellant, Tony Glover, and a man known as Sammyo were standing on a balcony overlooking a parking lot at the Orange Grove Housing Project between eight and ten o’clock that evening. The parking lot was illuminated by a street lamp so that the men on the balcony were able to observe a white girl drive up in a car with an older white man as a passenger. The girl spoke to a man known as Pig Iron. A girl called Fly and another man called Zack walked up to the car. Fly got in and drove off with the girl and the man.

Appellant and Tony discussed robbing the man when he returned, and when the girl drove into the parking lot again, appellant, Tony and Pig Iron approached the ear. Hawkins had seen appellant carrying a pistol and he observed appellant open the car door and begin hitting the man with the gun. Hawkins heard a gunshot and saw the three men run away.

The white girl began to scream for help and Hawkins, along with a young boy also on the scene, helped get the man back into the car. A police patrol car arrived shortly and escorted the girl and the wounded man to the hospital.

Hawkins testified that he called Detective Williams of the Mobile Police Department the day after the shooting and told him what had happened.

On cross-examination Hawkins admitted that there were three criminal cases pending against him, and that he had previous convictions; however, he denied that the police threatened him with a sentence of life without parole unless he helped them.

Wilber Williams, of the Mobile Police Department, testified that Hawkins called him in November of 1981, before the charges currently pending against him were brought, and that the story he told him at that time was substantially the same as his testimony at trial.

Joseph Washington testified that appellant and Tony Glover came to his apartment after the shooting, seeking his advice in regard to obtaining passports. Appellant said that he “had shot a white man.” Tony had a gun with him.

Robert Clark, appellant’s counsel, testified that he interviewed Hawkins prior to trial and that Hawkins related a different version of events on the night of the shooting than he «testified to at trial. He told Clark that Tony Glover had been on the passenger’s side of the car that night and that appellant had been at the rear of the car and that he never went near the door of the car. He also told Clark that he couldn’t see what was going on, but judged by height and size.

Charlotte Frison testified that on that night she lived in an apartment on the street where the shooting took place and that she saw appellant, Hawkins, and Glover in the parking lot. She saw a car pull up and a white girl get out. She heard a shot and went down to the parking lot, but when she got there the three men were gone.

Appellant raises two issues for consideration on appeal. First, appellant contends that the trial court erred in admitting evidence of Johnny Hawkins’s prior consistent statement. The testimony of Detective Williams regarding this statement was submitted to the jury in rebuttal of appellant’s attempt to establish Hawkins’s bias against appellant.

The general rule in regard to supporting a witness’s credibility with a prior consistent statement is as follows:

“[T]he impeachment of a witness by the introduction of evidence that he has made a statement which is inconsistent with his testimony does not authorize the proponent of the witness to support his credibility by evidence that the witness has made a statement on another occasion of the same tenor as his present testimony. This is true whether or not the witness is a party, whether or not the witness admitted the making of the prior inconsistent statement, whether the witness denied making such statement and testimony that he made it came from the mouths of another witness and whether or not the prior similar statement was made before or after the time of the claimed inconsistent statement.”
C. Gamble, McElroy’s Alabama Evidence § 177-01(2) (3d ed. 1977).

There is, however, an exception to the rule, which is the following:

“[I]f it is claimed that the witness’ bias arose at a particular point of time, evidence that he, prior to such particular point of time, made a statement of substantially the same tenor as his present testimony is admissible. Stated differently, it is said that a witness charged with a motive or interest to misstate or misrepresent the facts concerning which he has testified, growing out his relation to the cause or to the litigant in whose behalf he gave testimony, may be supported and corroborated by proof that he made statements consistent and in harmony with his testimony, before that relation existed.”
C. Gamble, McElroy’s Alabama Evidence § 177.01(4) (3d ed. 1977).

In the case sub judice, Hawkins testified that appellant hit the victim several times with a gun, that he heard the gun discharge and that appellant ran away. On cross-examination Hawkins admitted that he then had several criminal charges pending against him, interjecting the possibility that he was biased toward the State in expectation of favorable treatment regarding those charges. Testimony of Detective Williams that Hawkins made a similar statement before the charges were brought was, therefore, admissible under the exception to the general rule in order to rebut the inference that Hawkins’s testimony was manufactured. Zuck v. State, 57 Ala. App. 15, 325 So.2d 531 (1975), cert. denied, 295 Ala. 430, 325 So.2d 539 (1976); Yarbrough v. State, 105 Ala. 43, 16 So. 758 (1894).

Appellant also argues that the trial court erred to reversal in failing to instruct the jury as to the limited admissibility of Detective Williams’s testimony. Appellant contends that the testimony was not admissible to rebut proof of the witness’s crimes of moral turpitude or to rebut the witness’s prior inconsistent statements. These grounds were not, however, specified at trial. Appellant’s objection at trial was as follows:

“Judge, we’d ask for an instruction to the jury as to the purpose of Detective Williams’ testimony. It does not go to the truth of any matter asserted. It’s not facts, but it’s — ”

Only those grounds for objection presented to the trial court can serve as a basis for reversal of the court's action. Bland v. State, 395 So.2d 164 (Ala.Cr.App. 1981); Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976). Furthermore, appellant is bound by the grounds of objection specified at trial even though the evidence may have been inadmissible on different grounds. Turley v. State, 356 So.2d 1238 (Ala.Cr.App.1978). Other considerations aside, this objection was not made with sufficient particularity to allow an informed decision to be made on the particular legal issue involved and thus failed to preserve the matter for review. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979).

Second, appellant contends that the trial court erred in sentencing appellant under the habitual felony offender statute. Appellant argues that he was incorrectly sentenced because only two prior convictions were proven. This contention is without merit. The requisite number of prior convictions was clearly proven by introduction of certified copies of the minute entries. Thatch v. State, 397 So.2d 246 (Ala. Cr.App.), cert. denied, 397 So.2d 253 (Ala. 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.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Earnest McMILLIAN v. STATE.
    1 Div. 708.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Phillip M. Leslie, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Earnest McMillian, the appellant, was indicted and convicted for Robbery I. He was sentenced as an habitual offender to forty years’ imprisonment. Two issues are raised on appeal.

I

McMillian argues that his motion for judgment of acquittal was due to be granted because four alibi witnesses corroborated his contention that he was not physically present in Alabama when the robbery was committed.

Wanda Preston testified that she and her husband owned Preston’s Package Store in Mobile County and that on December 14, 1981, McMillian, armed with a pistol, and another man took $90 from the register. The following day, she selected McMillian’s photograph from a photographic array composed of “about seven” photographs. She stated that there was no doubt in her mind that McMillian was one of the robbers. Mrs. Preston was the sole witness for the State.

A prima facie case of robbery in the first degree may be based on the testimony of the victim. Pickett v. State, 417 So.2d 589, 591 (Ala.Cr.App.1982). Although disparity in the number of witnesses is a circumstance the jury may properly consider in reaching its verdict, “the number of witnesses in a criminal trial is not the basis for determining the issue of guilt since a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community.” White v. State, 410 So.2d 135, 137 (Ala.Cr.App. 1981). Regardless of the respective number of witnesses testifying for the State and for the defense, a verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “Conflicting evidence is always a question for the jury to determine, and a verdict rendered thereon will not be disturbed on appeal.” Suggs v. State, 403 So.2d 309, 313 (Ala.Cr.App.), cert. denied, Ex parte Suggs, 403 So.2d 313 (Ala. 1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982). “It is not the province of this court to pass on the truthfulness or falsity of the conflicting evidence.” Phelps v. State, 410 So.2d 435, 437 (Ala.Cr.App. 1981). A jury’s resolution of conflicting evidence regarding the existence and extent of a defendant’s participation in a crime, when based on legal evidence, cannot be disturbed on appeal. Walls v. State, 378 So.2d 1186, 1191-92 (Ala.Cr.App.1979), cert. denied, Ex parte Walls, 378 So.2d 1193 (Ala.1980). “(C)onflicting evidence presents a jury question not subject to review provided the State’s evidence establishes a prima facie case.” Reed v. State, 372 So.2d 872, 874 (Ala.Cr.App.1978), reversed on other grounds, 372 So.2d 876 (Ala.1979).

“(A)libi evidence is always a jury question.” Ransom v. State, 360 So.2d 731, 735 (Ala.Cr.App.), cert. denied, Ex parte Ransom, 360 So.2d 736 (Ala.1978).

II

The photographs constituting the photographic lineup from which Mrs. Preston identified McMillian were admitted into evidence at trial. The objection, raised only on appeal, that McMillian’s photograph was a “mug shot” and therefore inadmissible, see Holsclaw v. State, 364 So.2d 378 (Ala.Cr.App.), cert. denied, 364 So.2d 382 (Ala.1978), was not raised in the trial court and is not preserved for review. In view of the fact that “mug shots” may be properly admitted into evidence with certain limitations, United States v. Harrington, 490 F.2d 487 (2nd Cir.1973), and even their erroneous admission may constitute harmless error, United States v. Rixner, 548 F.2d 1224 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977), the admission of a mug shot into evidence does not constitute plain error. We do not find that this alleged error “seriously threaten(s) the fairness or integrity of the judicial proceeding.” United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. 1981). See also United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391; 392, 80 L.Ed. 555 (1936).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Tuney Leon HADLEY v. STATE.
    1 Div. 710.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      John D. Whetstone, Gulf Shores, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Leon Hadley, the appellant, was indicted for and convicted of second degree theft of property. Alabama Code Section 13A-8-4 (1975). Sentence was six years’ imprisonment. This appeal involves three issues.

I

Hadley maintains that his oral confession should have been suppressed because it was induced by the promise of the Sheriff’s investigator to recommend that he be given probation.

Hadley gave both an oral confession, which was tape-recorded, and a handwritten confession to Tom Nunley, an investigator for the Baldwin County Sheriff’s Department. During the suppression hearing outside the presence of the jury, Nunley admitted that the written confession was given to him only after he told Hadley that he would make a recommendation to the District Attorney’s Office that Hadley be given probation if Hadley would help him “with this and other things that are going on in Perdido with this group of people.” Investigator Nunley stated that the oral confession was given to him before the written confession (either on the afternoon before or earlier on the morning the written confession was given) and prior to his offer to recommend probation. In contradiction of this, Hadley testified that his confession was involuntary, and that he did not make any statement admitting guilt until Nunley promised to “get him probation.” The trial judge ruled that the oral confession was admissible, but suppressed the written confession.

An extrajudicial confession, whether oral or written, is prima facie involuntary and is not to be admitted until the State has shown otherwise. Garrett v. State, 369 So.2d 833, 837 (Ala.1979); Hardy v. State, 409 So.2d 996, 1000 (Ala.Cr.App. 1982); Rush v. State, 397 So.2d 195, 197 (Ala.Cr.App.), cert. denied, 397 So.2d 197 (Ala. 1981). “In order to be admissible a confession must be free and voluntary and cannot be the result of any direct or implied promises, however slight.” Eakes v. State, 387 So.2d 855, 859 (Ala.Cr.App.1978).

It is clear that the trial judge properly suppressed the written confession. There was, however, conflicting testimony as to whether the oral confession was given before or after Nunley promised to recommend probation for the appellant. Conflicting testimony regarding the voluntariness of a confession raises a question for the trial judge and his ruling will not be disturbed on appeal unless it is manifestly wrong or palpably contrary to the weight of the evidence. Hewitt v. State, 389 So.2d 157, 168 (Ala.Cr.App.1980); Kuczenska v. State, 378 So.2d 1182, 1184 (Ala.Cr.App. 1979), cert. denied, 378 So.2d 1186 (Ala. 1980), and authorities cited therein.

Although the written confession was properly excluded, the oral confession was properly admitted in view of Nunley’s testimony that prior to taking the oral confession he advised Hadley of his rights, that Hadley indicated that he understood his rights, that Hadley appeared sober and coherent, that no threats were made, and that any statement made to Hadley concerning probation was made after Hadley had been warned of his rights and had given his oral confession. In light of this testimony, the trial court’s ruling admitting the oral confession was not manifestly wrong or palpably contrary to the weight of the evidence.

Hadley also argues that his oral confession was inadmissible because it “merged” with the written confession as they were “made in extremely close intervals of time and appear to be one and the same act.” This argument is undermined by the trial judge’s ruling that the oral confession was admissible and the written confession inadmissible. In making this ruling, the trial judge must, of necessity, have found that the confessions were made in two separate acts.

The oral confession was in no way “tainted” by Nunley’s subsequent promise to recommend that appellant be given probation. As this Court stated in Chatman v. State, 380 So.2d 351, 354 (Ala.Cr.App.1980): “Since any discussion of possible lenient treatment of appellant occurred after appellant’s confession, no inducement to confess was present.” See also Rowe v. State, 421 So.2d 1352, 1355 (Ala.Cr.App.1982) (“The oral confession was completed at the time help was mentioned and therefore the offer could not have induced the confession”).

II

Hadley further asserts that the trial court erred in admitting his oral confession because the State failed to establish proof of the corpus delicti before introducing the confession.

“The traditional rule in Alabama is that a defendant’s confession may not be admitted into evidence until proof of the corpus delicti has been established by evidence independent of the confession.” Tice v. State, 386 So.2d 1180, 1185 (Ala.Cr.App.), cert, denied, 386 So.2d 1187 (Ala.1980). In proving the corpus delicti, which “may be defined in its primary sense as the fact that a crime actually has been committed”, Malone v. State, 37 Ala.App. 432, 434, 71 So.2d 99 (1953), cert. denied, 260 Ala. 699, 71 So.2d 101 (1954), the State is not required to produce direct evidence, but may rely on facts and circumstances which afford an inference that a crime has occurred. See Tice, supra; Gunaca v. State, 383 So.2d 590 (Ala.Cr.App.1980).

The corpus delicti of a theft consists of two elements: “(1) That property was lost, and (2) that it was lost as a result of felonious taking.” Burlison v. State, 369 So.2d 844, 848 (Ala.Cr.App.), cert. denied, 369 So.2d 854 (Ala.1979). Prior to introducing Hadley’s confession, the State called Robert Johnson, an employee of Container Corporation of America. Johnson testified that, during July, 1982, certain equipment was discovered to be “missing” from the fenced in property area of the Corporation’s headquarters at Lottie, Alabama. He enumerated the missing items, based on an inventory he had made, and placed a value of $350 on the equipment. In testifying, Johnson made a reference to “the stolen equipment.”

While we certainly do not commend this as a model to be followed when proving the corpus delicti of a theft, we think that Johnson’s testimony was sufficient to raise an inference that the equipment was lost due to a felonious taking. Therefore, Hadley’s confession was properly introduced.

Ill

During the prosecutor’s closing argument, defense counsel objected and moved for a mistrial. After the jury was excused from the courtroom, the following occurred:

“MR. NORTON (District Attorney): Your Honor, I said that if Mr. Hadley wanted to tell Mr. Nunley.
“MR. WHETSTONE (Defense Counsel): Your Honor, Mr. Norton made a direct comment about the failure of Mr. Hadley to take the stand and said that if Mr. Hadley had of gotten up here and said something.
“MR. NORTON: No, sir, Mr. Whetstone, I did not.
“MR. WHETSTONE: That’s the way I heard it and remember it. I took it as a direct comment to this Jury that Mr. Hadley did not take the stand which cannot be erased from the minds of these ladies and gentlemen. That’s the way I heard it.
“MR. NORTON: What I said, and I will quote it for the record specifically, if Mr. Hadley wanted to tell Mr. Nunley that he stole it, he had a right certainly.
“Now, Judge, that’s the evidence from the stand and that’s what he said.
“MR. WHETSTONE: I don’t recall it that way. I took it that you meant that he had the right, he was talking about evidence coming from the Stand or arguing that.
“MR. NORTON: No, sir, nothing was said to that effect. That’s a direct quote of what I said.
“THE COURT: Well, I was listening and my vague impression was that he was talking about the confession with Mr. Nunley.
“MR. NORTON: I have never in my career made a comment like that.
“MR. WHETSTONE: Well, I’m not saying it was intentional.
“THE COURT: Well, I’m going to deny the motion for a mistrial and I know you except.”

What this Court said in Redus v. State, 398 So.2d 757, 761-62 (Ala.Cr.App.), cert. denied, 398 So.2d 762 (Ala.1981), applies here:

“In order to predicate error on prejudicial comments of the prosecutor, counsel must either have the court reporter transcribe the statements objected to into the record or else state the substance of the statement or comment into the record in sufficient detail that this court can comprehend what was said. Whitt v. State, Ala., 370 So.2d 736 (1979); Tillman v. State, Ala., 374 So.2d 926 (1979). In the instant ease, the objection was fragmentary and the substance of the prosecutor’s comments was not set out with sufficient clarity for us to determine whether or not the comment pointed out to the jury the appellant’s failure to take the stand and testify. Defense counsel’s rendition of the comment was disputed by both the prosecutor and the trial judge when the objection was made. We cannot judge from the record who was correct in this regard, but the law presumes the ruling of the trial court to be correct in the absence of a clear showing otherwise. Huffman v. State, Ala.Cr. App., 360 So.2d 1038 (1977), affirmed, Ala., 360 So.2d 1045 (1978).”

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Paul WESLEY v. STATE.
    1 Div. 725.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Paul M. Harden, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Paced with a charge of first degree robbery, Paul Wesley pleaded guilty to attempted robbery and was sentenced by the trial court, accordingly, to five years’ imprisonment in the penitentiary.

This cause must be reversed on the authority of Petty v. State, 414 So.2d 182 (Ala.Cr.App.1982). Appellant’s “attempted robbery” conviction is invalid. The appellant was indicted for first-degree robbery under § 13A-8-41, Code of Alabama 1975. Pursuant to a “plea bargain,” the appellant agreed to plead guilty to “attempted rob* bery.” The trial court accepted this plea and implicitly pronounced judgment of conviction for “attempted robbery” under § 13A-4-2, Code of Alabama 1975, and, subsequently, sentenced the appellant, pursuant to § 13A-4-2(d)(2), Code of Alabama 1975, for the Class B felony of an attempt to commit first-degree robbery, a Class A felony. These actions were erroneous. Petty, in accordance with the Alabama Supreme Court’s holding in Reed v. State, 372 So.2d 876 (Ala.1979), reversing 372 So.2d 872 (Ala.Cr.App.1978), held that the general attempt statute, § 13A-4-2, is no longer applicable to robbery offenses. “The former crime of attempted robbery now constitutes robbery.” Petty v. State, supra.

For aught that appears in the record, the factual circumstances of this case might support a conviction for any of the three degrees of robbery. The state is, of course, free to re-indict this appellant for the appropriate offense. Petty v. State, supra.

For the reasons stated above, this cause is reversed and remanded for further proceedings not inconsistent with this opinion or with Petty and its progeny.

REVERSED AND REMANDED.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Mickey Dewaine SULLIVAN v. STATE.
    1 Div. 747.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Glenn L. Davidson, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Appellant Mickey Dewaine Sullivan was convicted of robbery in the first degree and sentenced as a habitual offender to life imprisonment. The evidence tended to show that the victim of the robbery, Mr. Willie Carpenter, had known the appellant and his brother most of their lives. On the date of the offense, he gave the Sullivans a ride in his truck to a location near a graveyard, where they said they would like to get out. Appellant asked Carpenter if he had any money. Carpenter said no, and appellant said, “Well, we’ll see,” and grabbed the ignition key and jumped out of the truck.

Carpenter stepped out of the truck armed with a butcher knife. Appellant hit him across the arm and then over the head with a 2V2-foot-long board. Appellant said, “You don’t believe I’ll kill you.” At this point, Tisdale Sullivan stepped between Carpenter and the appellant, and pushed appellant back a little way. The Sullivans then tied Carpenter to a pine tree by his throat and also tied his hands behind him. They took his money and his pocket knife. All of these events occurred in the northern portion of Mobile County, Alabama.

Carpenter was the first witness for the state. Photographs demonstrating the injuries suffered by the victim were received in evidence over objection.

Appellant contends that the trial court erred in permitting a law enforcement witness to refresh his recollection of a confession by the appellant by referring to a transcription of a taped recording of the confession. It appears that after the appellant made a tape recorded confession, the recording was transcribed and the matter on it was erased so that the tape could be reused. The transcription was never offered into evidence, but was merely referred to by Detective Tillman of the county sheriff’s department. The witness only employed it to refresh his recollection of a statement made to him by the appellant. We find no violation of the rule permitting the revival of a present recollection. The principles regarding the use of a memorandum are well set out in Judge Bowen’s opinion in Gibson v. State, 347 So.2d 576 (Ala.Cr.App.1977) at 580, 581. No error was committed in this respect.

The best evidence rule has no application in this situation. 23 C.J.S. Criminal Law, Section 833(c) (1961); Beech v. State, 439 So.2d 1331 (Ala.Cr.App.1983). Consequently, the judgment of the trial court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Mason BLACKBURN v. STATE.
    3 Div. 612.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Harold L. Wilson, Hayneville, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant was convicted of receiving stolen property in the first degree in violation of § 13A-8-17, Code of Alabama 1975. He was sentenced to life imprisonment, applying the Habitual Felony Offenders Act.

I

Appellant argues that the state failed to prove the value of the stolen property he was accused of receiving and concealing, and that for that reason his conviction should be reversed. James Blackmon, a Georgiana police officer, testified that in his opinion the stolen guns could be valued from $1,500 to $2,500. No foundation was laid by counsel as to Officer Blackmon’s expertise as regards firearms and values. The witness as a police officer owned and handled firearms as part of his official duty. The weight given to the opinion of a non-expert witness must be determined by the jury as the trier of fact. Pearson v. State, 441 So.2d 993 (Ala.Cr. App.1983); Lankford v. State, 396 So.2d 1099 (Ala.Cr.App.1981). The opinion of a non-expert “is to be considered like other evidence in connection with all the facts and circumstances and in the light of the knowledge and experience of the jury in finding the true value.” State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965). It is well established that value may be proven by non-experts. Speed v. State, 432 So.2d 554 (Ala.Cr.App.1983).

The guns were received in evidence so that the jury were themselves able to examine them. The court apparently felt that the members of this Butler County jury would know the value of that kind of property from their common knowledge.

On appeal, in assessing the sufficiency of the evidence, we are required to view the evidence in the light most favorable to the prosecution. McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979); Easley v. State, 56 Ala.App. 102, 319 So.2d 721 (1975). “This court must accept as true the evidence introduced by the state and accord the state all legitimate inferences therefrom.” Johnson v. State, 378 So.2d 1164, 1169 (Ala.Crim.App.1979). Considering the evidence in a light most favorable to the prosecution, in the instant case, we find that the evidence presented was sufficient for the jury to make a determination of the value of the guns received.

We find no merit in appellant’s other contentions, and affirm the judgment of the trial court.

AFFIRMED.

All the Judges concur.


text:
    Lamar STANFORD v. STATE.
    4 Div. 216.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    David C. Emery, Ozark, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia Ellis Guthrie, Asst. Atty. Gen. and Michael Bownes, Montgomery, for appel-lee.
   HARRIS, Judge.

Appellant, Lamar Stanford, was indicted by the Dale County Grand Jury on October 5, 1982, for violation of the provisions of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama (1975). On May 26, 1983, appellant was found guilty of selling marijuana and was sentenced to two years’ imprisonment in the state penitentiary. The sentence was suspended and appellant was placed on probation.

State Trooper Gerard Herring testified at trial that he went to Ozark as an undercover agent for the Alabama Bureau of Investigation, and that on June 15, 1982, at 8:15 p.m., he drove to a section of town known as “the block.” He drove into a parking lot and appellant, who was standing with a group of people, yelled at him, “You looking for me?” Herring drove over to him and appellant said, “I got it.” Herring replied, “Let me see what you got.” Appellant opened a paper sack and allowed Herring to examine several plastic wrapped bags of marijuana. Herring chose one, gave appellant ten dollars, and drove off.

Herring identified appellant in court as the individual who sold him the marijuana. He stated that this was the only contact he had with appellant, that he had not known him previously, nor had he seen him again until he came to trial.

On cross-examination, Herring testified that, at the time of the drug sale, he was carrying a passenger in the car who witnessed the transaction and identified appellant by name.

Lamar Stanford testified that at about 6:30 p.m., on the evening in question, his fiancee came to his mother’s house, where he was living, and the two of them drove to Dothan. They went to a movie which started at 7:15, returned to Ozark between 9:30 and 9:45, and sat out in the car until 1:00 or 2:00 o’clock the following morning. He denied selling the marijuana to Herring, or even being in Ozark when Herring made the purchase.

The sole issue raised on appeal is whether the State was privileged to withhold the identity of the individual who provided Herring with appellant’s name, or whether the State should have been compelled to reveal the name of this witness.

The general rule is that the prosecution is privileged to withhold from an accused the identity of an informer. E.g., White v. State, 368 So.2d 332 (Ala.Cr.App. 1979); Williams v. State, 52 Ala.App. 406, 293 So.2d 324 (Ala.Cr.App.1974). The court in Kilgore v. State, 50 Ala.App. 501, 503, 280 So.2d 206, 208 (Ala.Cr.App.1973), stated the following: “Public policy forbids the disclosure of an informant’s identity unless it is essential to the defense set up by the accused and is necessary to show his innocence.” (Citations omitted.) The United States Supreme Court, in Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957), expounded upon the State’s privilege to withhold the identity of informers as follows: “The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”

Appellant cites Roviaro, supra, wherein the court held that the trial judge erred in failing to require the State to disclose the name of an informer. Defendant in that case had been charged with both illegally transporting and selling heroin. The informer was heavily involved in the criminal activity, as he was instrumental in bringing about the defendant’s possession of the heroin and was the sole participant in the crime other than the accused. He also may have been a material witness on the issue of whether the accused knowingly transported the drugs as charged, and he was the only witness who could have confirmed or contradicted the testimony of the State’s witness who reported the contents of a conversation between the accused and the informer.

The court, in Roviaro, supra, announced a balancing test to be applied to the question, stating the following:

“... no fixed rule with respect to [the applicability of the government’s privilege to withhold] disclosure [of an informer’s identity] is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” At 62, 77 S.Ct. at 628-629.

Determination of this issue is, of course, within the sound discretion of the trial court. New v. State, 337 So.2d 1355 (Ala. Cr.App.1976).

This court in Kilgore, supra, upheld the trial judge’s determination that an informant’s identity should be withheld from the accused. In explanation of its holding, the court stated:

“The primary purpose for the disclosure of an informer’s name or identity is to prevent a miscarriage of justice in cases where an accused might have been entrapped into committing the offense for which he is prosecuted. The fundamental requirements of fairness compel disclosure in such cases where the informer plays a major and active part in bringing about the sale of narcotics and continues an active participant therein.” 50 Ala. App. at 503, 280 So.2d 206.

In Kilgore, supra, the witness, known only as “Betty,” introduced the government agent to the accused. The agent then negotiated a purchase of illegal drugs from the accused. It was a simple case of sale and delivery in which “Betty” was not an active participant in the criminal transaction but was, on the contrary, merely a passive observer. The defendant took the stand and denied that he had ever seen the agent either with or without a female companion. The defense of entrapment was thus negated and disclosure of the woman’s name could not be compelled.

The facts in the case before us are directly analogous to the facts in Kilgore, supra. The witness was a passive observer of the transaction, and the defendant denied the crime, negating an entrapment defense. State’s witness positively identified appellant in court as the individual who sold him the marijuana, so that the State’s case was not dependent upon the unidentified witness’s identification of the accused. We find that under these facts and circumstances the trial judge committed no error in allowing the State to withhold the name of the witness.

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

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Rufus Jackson VICK and Bobby Joe Duke v. STATE.
    5 Div. 753, 5 Div. 754.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Robert B. Reneau of Reneau, Enslen & Reneau, Wetumpka, for appellants.
    Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

Rufus Jackson Vick and Bobby Joe Duke, both inmates at the Decatur Community Based Facility, Decatur, Alabama, filed petitions for writ of habeas corpus in the Elmore County Circuit Court. These petitions were denied without a hearing. From these denials by the trial court, appellants bring a consolidated appeal.

The petitions for writ of habeas corpus challenged the Board of Corrections Disciplinary Court’s decision to revoke “good time” and to reassign appellants to other institutions. The actions of the disciplinary board were based on an incident in which both men were alleged to have aided and abetted a third inmate to escape the facility. Appellants argue several grounds in support of their assertion that the disciplinary board’s decision should be reversed, two of which are as follows:

1. The chairman of the disciplinary board was at least tangentially involved in the incident which was the basis of these proceedings; and

2. The board did not comply with due process requirements in that the decisions made by the board were not based on substantial evidence.

According to the written statements of Willie Anderson, the arresting officer, on September 10, 1982, at approximately 9:25 p.m., he saw inmate William Reid enter the laundry area behind Dormitory B. Anderson noticed that Reid was drunk, so he tried to persuade him to go to the guard’s office where he would be charged with a rule violation, but Reid would not cooperate. Other inmates were in the area, so Patrick Halliday was called to assist Anderson.

Reid, at that point, left the laundry area and went into Dormitory B, whereupon Anderson followed him. While Reid was inside Dormitory B, he asked Anderson not to put him in jail, but Anderson did not respond to these pleas. After failing to elicit a response from Anderson, Reid walked toward the rear exit of the dormitory, hesitated at the door, then fled.

Anderson searched adjacent areas but could not find Reid. At approximately 9:45 p.m., Mr. Halliday arrived at the center in response to Anderson’s earlier call. After a search of some twenty minutes, Halliday informed the on-duty personnel that Reid had been found. The involvement by appellants in the incident was detailed in a separate statement.

The event that caused the appellants to be taken before the disciplinary board was a minor, yet integral, part of the overall incident outlined above. From these facts, taken from the statements of the corrections official, it is apparent that Mr. Patrick Halliday was directly and personally involved with the events in question. He was also the chairman of the disciplinary board before which appellants were heard. Under the circumstances, it seems very likely that the appellants’ right to a fair and impartial hearing was denied. See Ex parte Crear, [Ms. 82-417, November 10, 1983] (Ala.1983). For this reason, we reverse the order of the trial court and remand with instructions that appellants be given an evidentiary hearing on their petition of writ of habeas corpus.

The appellants also contend that the actions of the disciplinary board were arbitrary and capricious and were not based on substantial evidence. The only evidence received by the board on the issue of appellants’ guilt was a written statement by the arresting officer, Mr. Willie Anderson. That statement reads in part as follows:

“Mr. Willie Anderson, CO I, in the lawful execution of his duties in dormitory B to observe, calm down, and persuade Inmate William Reid ..., who was intoxicated, to come to the Officer’s office where he was going to be placed under arrest for violation of Rule #7, to wit: Drunk or Drinking. The results of inmates Vick, Goodman, and Duke actions caused Inmate Reid to flee the center via the rear exit of dormitory B. The actions perpetrated initially involved inmates Vick, Goodman, and Duke pleading with Mr. Anderson to permit Inmate Reid to return to his dormitory and go to bed rather than arresting him for being under the influence of alcoholic beverage. Mr. Anderson did not respond at length to the comments of inmates Vick, Goodman, and Duke, except to say that Inmate Reid’s intoxication was his problem and not their own. With this response, the tone of inmates Vick, Goodman, and Duke voice changed to anger. Inmates Vick, Goodman, and Duke began to state — not simultaneously — that Mr. Anderson was unfair, authoritative, unworthy, good for nothing individual. Mr. Anderson did not return a response, but was continually trying to observe Inmate Reid who was pacing the floor of dormitory B. When inmates Vick, Goodman, and Duke stopped talking, Inmate Goodman, who was standing near Inmate Reid, grabbed Inmate Reid by the right arm and led him to the rear of dormitory B, stopping near the rear exit door. Standing near the door for approximately one-half minute, Inmate Reid turned and ran out of it. The time was approximately 9:45 p.m. Mr. Anderson turned and departed dormitory B via its front door

It should be noted that inmate Goodman is not a party to this appeal.

“Aiding and Abetting Another to Commit a Violation of Department or Institutional Rules” is defined as follows: “To help, assist or facilitate the violation of a department or institutional rule by encouragement or counsel as to its commission with words, acts, support, presence or assistance rendered.” Administrative Regulation, # 403(h)(2)(65). A literal reading of that definition would automatically make any inmate present during a rule infraction guilty of aiding and abetting. Of course, it is well established in every state in the union that a person’s mere presence at the scene of a crime will not support any type of liability for that crime.

In the case sub judice, it was well established that Reid was moving about at will within the compound before Vick and Duke became involved. Anderson had,, tried to control Reid’s movements while they were in the laundry area but could not. Reid then, either because he was drunk or for unknown reasons, went to the dormitory where Vick and Duke happened to be. Anderson’s statement that Vick and Duke “caused” Reid to escape was a conclusion not based on the facts.

There is substantial evidence from the record that Duke and Vick called Anderson names, but nothing more. There is also substantial evidence that both Vick and Duke had “stopped talking” and evidently withdrawn from the conversation before Reid ever left the building. There is no evidence that either Duke or Vick ever “encouraged or counseled” Reid in any way. Prom the record it appears that they had no contact with him whatsoever and, in fact, it was inmate Goodman who was standing near Reid. There is no evidence of any intent on their part to aid in his escape; namely, there were no plans, schemes, or designs, and no evidence that they were aware that he was going to escape or that he would even leave the building. While their actions may have amounted to a rule infraction of some other type, there is not one iota of evidence to support the charge from which they have appealed.

The rule requiring “substantial evidence” means that an inmate will not be found guilty except by an appropriate quantum of evidence. If a prison official finds an inmate guilty, it is the responsibility of the reviewing courts to determine whether the decision was based on substantial evidence or whether the decision was arbitrary. Aikens v. Lash, 514 F.2d 55 (7th Cir.1975).

The rule that there be substantial evidence is not satisfied merely by setting out the facts of an incident in a written statement; those facts must also be material to the offense with which an inmate is charged. See Wilburn v. State, 432 So.2d 524 (Ala.Cr.App.1983); Gibson v. State, 411 So.2d 1297 (Ala.Cr.App.1982); Washington v. State, 405 So.2d 62 (Ala.Cr.App. 1981). This, then, becomes a second ground for reversal.

Finally, there is the question of proper jurisdiction for this writ. From the record, it appears that the Corrections Department has housed the appellants in at least three different locations since the time of the incident. Since the statutes of this State do not specifically cover this situation, we feel that the court in which the petition was originally filed should retain jurisdiction. Otherwise, we would have the situation in which appellants could not pursue their remedies to a final determination because of their arbitrary and periodic relocation by the Corrections Department.

For these reasons, this cause is reversed and remanded with instructions.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Edwrick Venor FOWLER v. STATE.
    6 Div. 42.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      John A. Bivens and Jo Celeste Pettway, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant Edwrick Venor Fowler was convicted of robbery in the first degree of the Shoney's Inn in Tuscaloosa, Alabama, and sentenced to life imprisonment in the penitentiary. Pursuant to § 15-22-27.2, Code of Alabama 1975, and because of Appellant’s having been previously convicted of a Class A felony, this was a sentence to life imprisonment without parole.

That section reads:

“In all cases where a criminal defendant has been convicted of a Class A felony committed after a previous conviction of another Class A felony, and such second conviction results in a sentence to imprisonment for life, he shall not be eligible for parole.”

I

Appellant contends that in sentencing him, the trial court misconstrued § 15-22-27.2 and in doing so created a new and independent crime. Neither the law nor the facts presented by this case support such a contention. Appellant was sentenced to life imprisonment by the trial court, but because his ease met the circumstances outlined in § 15-22-27.2, his sentence was augmented to life imprisonment without parole. Appellant’s punishment was enhanced by operation of law and without the necessity of further comment by the trial judge. Thus, this issue is without merit.

II

Appellant asserts • that his conviction should be reversed on the grounds that he was charged in a defective indictment. We find no basis for this assertion.

Appellant correctly states in his brief that when an indictment fails to specify the denomination of the currency taken, an additional allegation should be made that the particular denomination was unknown to the grand jury. Davis v. State, 401 So.2d 187 (Ala.Cr.App.), cert. denied, 401 So.2d 190 (Ala.1981).

The indictment in the case at bar described the stolen property as

“... a sum of money, to-wit: Two Hundred Thirty Six and no/100 ($236.00) dollars, lawful cash, coin or currency, of the United States of America, a better description of the said property being otherwise unknown to the Grand Jury...”

We find that the phrase “a better description of said property being otherwise unknown” sufficiently indicates that the denomination of the currency was unknown to the grand jury. To hold otherwise would support a semantic distinction that has no basis in law or reason.

For the reasons cited above, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Michael Stephen NEELY v. STATE.
    6 Div. 94.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Charley Shults, McCalla, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant Michael Stephen Neely was sentenced to fifteen years’ imprisonment as a habitual offender for the offense of arson in the first degree. The state’s testimony tended to show that the owner of the burned property, Louis Swann, operated a package liquor store. On the evening of June 10, Neely, the appellant, came into the store about 8 p.m. and attempted to borrow $2 from Swann. Swann finally told the appellant that he would give him $2 for the mixed drink the appellant had in his hand, whereupon they exchanged and parted. Three or four minutes after Neely entered Swann’s store, O’Neal “Cookie” Brasher came into the package store. Brasher wanted Swann to give him something to drink. Swann would not. Eventually there was an altercation, during which Swann struck Brasher. On the way out of the store, Brasher told Swann that he was going to get him. Swann then called the Graysville Police Department, and Brasher and the appellant left in Brasher’s car. About 11 p.m. that night, Swann left his residence, which was located about 120 feet from the package store and some apartments. He testified that he thought that appellant and Brasher might come back. A short time thereafter, he saw the appellant running toward Brasher’s car. Then he saw Brasher backing up and lighting something. Brasher threw a lighted paper at the building, and the building burst into flames. Some other witnesses also observed Brasher starting a fire at the door to the package store. According to the testimony, the area outside the building was very well lighted.

Marie Collier, another state’s witness, knew that Neely and Brasher were together in Brasher’s automobile that evening. They came back to Brasher’s house about' 9:45 p.m. where the witness and her husband were visiting. Brasher said that Mr. Swann had hit him. Brasher also said in appellant’s presence that they were going to get back at Mr. Swann. Neely stated that they should get some dynamite and blow up Swann’s building. Mrs. Collier told them that they had better not blow up the building because she lived there. After Mrs. Collier went home and retired, she heard something on the roof. She later smelled smoke and was then told that the building was on fire. Both the apartment building in which the package store was located and the adjacent building, also belonging to Swann, were completely burned, although no one was killed in the fire. About 1 a.m., appellant Neely and Brasher were observed driving by the scene of the fire in their car. Police officers had been looking out for that car and Officer Knight pulled the car over. He arrested the appellant for driving a car with an improper tag, and he noticed the strong smell of alcohol on his breath. While driving away from the scene, Brasher ran a stop sign and Officer Knight arrested him for that offense. Both appellant and Brasher were taken to the Graysville City Jail and were later charged with the arson.

The theory of the defense was that Swann had burned his own building. Out of the presence of the jury, Swann testified that he had collected $30,000 in insurance on the building, but that all the money had gone to the mortgage holder. The insurance covered less than half of the mortgage amount. Swann also testified that he had suffered a fire loss in a building he owned in Thomas, Alabama, but made no insurance claim as to that fire. He also testified to another fire loss in north Birmingham, where he had just bought a store. The last fire loss occurred after the fire which is the subject matter of this prosecution. Swann said that while he was in the hospital recuperating from injuries sustained at the time of this fire, he received a telephone call from someone who threatened to burn the North Birmingham store building if Swann followed through with the prosecution of the instant crime. The burning of the North Birmingham store building was determined by the authorities to be the result of arson. The witness testified that at the time of that fire, there was a $12,000 mortgage on the store. The loss suffered in the fire came to $12,900. Swann was considerably worse off after each fire than he was before. After considering Swann’s testimony, the court made a finding that there was not sufficient evidence of bias or prejudice stemming from the other fire losses to permit testimony regarding the other fires to be submitted to the jury.

I

Appellant contends that he was denied due process when he was not permitted to cross-examine Swann in the presence of the jury concerning his bias or prejudice against the appellant. The court’s specific holding was that it did not find “evidence of any acts or conduct or relationship or statements that this man has made that would suggest to me that he had an inherent bias or motive to prompt him to lie in court.” The court concluded that the matters of the previous fire and the subsequent fire were not relevant to a material issue before the court in the instant case. The question is whether the court was guilty of a clear abuse of discretion. We hold that the court did not abuse its discretion in this respect. See Bell v. State, 385 So.2d 78 (Ala.Cr.App.1980); Renfroe v. State, 382 So.2d 627 (Ala.Cr.App.), cert. denied, Ex Parte Renfroe, 382 So.2d 632 (Ala.1980); Daniels v. State, 375 So.2d 523 (Ala.Cr.App.1979).

II

Appellant next contends that the court erred in not permitting him to present witnesses whose evidence would tend to show bias or motive to lie in his testimony. In fact, these witnesses, as it appears from the record, would have testified that Swann had been an arson victim before and after this fire, and had collected some insurance money on the property. This testimony the court disallowed upon the same grounds as stated in I above. Since the evidence showed that the value of the property in the instant case was over $150,000, the existence of a $30,000 insurance policy is hardly indicative of arson. One of the fires for which the insurance was paid occurred after the fire in this case. The other fire was never the subject of an insurance claim. The trial court was correct in its determination not to allow this case to be cluttered with irrelevant and immaterial matters; they were nothing more than red herrings sought to be dragged across the trail.

Ill

Appellant also contends that the trial court erred in denying his motion to strike the testimony of one of his own witnesses, David Johnston, whose testimony was apparently not to his liking. After Johnston testified, the appellant moved to strike the identification testimony of the witness. This is not within the rules of the game and the court did not err in denying this motion.

In light of the foregoing, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Harriet Clements SEAGLE v. STATE.
    6 Div. 297.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Jake V. Bivona, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant Harriet Clements Seagle was convicted by a Bessemer jury of the murder of Joel Waldrop at his office in a Bessemer trailer park. They also convicted her of first degree robbery of Waldrop.

The appellant was Mr. Waldrop’s secretary. The victim’s son went to visit his father on February 24, 1982, accompanied by a friend. The young men observed the office safe lying on the ground outside the trailer. They entered the trailer to discover Mr. Waldrop lying face down in the office/living room of the trailer, dead. They attempted to call the police but discovered the telephone cord had been cut. They called from a nearby trailer.

Appellant and a Mr. Jimmy “Red” Buckler had been observed together the previous day and the previous evening near the time of the crime. Around 10:00 p.m. that night, Buckler approached the car of witness Mike Atkinson, and gave him some pills which were later identified as having come from the deceased, Mr. Waldrop. Shortly thereafter, appellant was observed giving Buckler some money.

Barry George testified that later that same evening he and Mike Atkinson met the appellant and Red Buckler at a package store, where Mr. Buckler and appellant purchased some beer and gave some of this beer to him and Atkinson. These two men met with appellant and Buckler again at the Burger King on Highway 78 in Birmingham. Then they all proceeded to the downtown Sheraton where they took articles from the appellant’s automobile and some beer and carried them upstairs to their room. They sat around and smoked marijuana provided by the appellant. Introduced in evidence were some photographs taken of this group at the Sheraton.

Atkinson testified that Mr. Buckler, while at the house of George, had shown him some articles in the trunk of the appellant’s automobile. These included a lamp, a handgun, a quilt and some papers. Atkinson saw the name Joel Waldrop on some of the documents and on one of the bottles of pills. Appellant stated to Atkinson that she and Waldrop had an argument, and that he had chased her and she in turn hit him in the head with “a vase or something.” She said he fell to the floor and she got scared and left.

Atkinson had seen the appellant when she came to him and asked him to install a car stereo for her. He saw that she had purchased the stereo for approximately $300. He said that at that time she appeared worried and upset. Appellant gave Atkinson the handgun which she said had belonged to her father. Atkinson eventually turned this gun over to the authorities when he found out Waldrop had been killed.

While investigating the homicide, Sergeant Anthony Bellanca of the Bessemer Police Department took photographs of the scene and dusted for fingerprints. He made attempts to contact the appellant. Appellant returned his phone call and they agreed to meet at police headquarters. Appellant, Sergeant Bellanca and a Lieutenant Acker met at 10:30 a.m. on February 25. Bellanca read appellant her constitutional rights from a card. Appellant stated that she did understand her rights and she would answer questions. Bellanca testified no threats or coercion were used to compel her to give a statement. Bellanca told her that he was investigating the death of Joel Waldrop and wanted to talk with her about this. Lieutenant Acker, participating in the investigation, asked appellant if he might look in her purse. She gave him permission to look in her purse. There the lieutenant found eight $20 bills, several bills, a Kodak camera, a car stereo receipt, a Radio Shack receipt, and a Sheraton Motel receipt. He also found a bottle of nitroglycerin pills with the name Joel Waldrop on the prescription label. The appellant then broke down and told Sergeant Bellan-ca, “He’s going to kill me.” He asked who she meant and she said, “Red.” Then she said, “Red is the one who killed Mr. Wal-drop.” Appellant, in her recorded statement, said that she had met Mr. Waldrop some two years earlier. He had loaned her money and she had occasionally spent the night in his house trailer. The day before, Mr. Buckler had asked her for money and the two of them had gone to see Mr. Wal-drop to ask him to loan her some money to give to Buckler. She said Waldrop and Buckler got into an argument, Buckler picked up a lamp and hit Mr. Waldrop in the head at least twice. She said she was going to call for help but Buckler cut the telephone cord. She testified that after Buckler had gotten the combination to the safe from Mr. Waldrop, he opened the safe and removed approximately $4,000 and some papers. He gave $800 of this money to the appellant. The appellant stated that Buckler also took a gun, watches, binoculars, a pocket knife, and papers from the trailer. She said these items could be found at her apartment.

Lieutenant Acker testified that he went to Mr. Buckler’s apartment, where he found pill bottles labeled with Mr. Wal-drop’s name, as well as a hammer, billfold, address book, coin purse, papers, a blanket, a watch, a knife, a key on a keyring and binoculars. Waldrop’s son identified these items as belonging to his father. Fingerprints on the safe were the same as the prints of the appellant. The cause of the victim’s death was cardiac arrhythmia due to a traumatic injury to the head.

I

On appeal appellant first contends that the search of her purse violated her constitutional rights. The evidence was that Lieutenant Acker said to appellant, “Keeping your rights in mind, will you give me permission to look into your purse?” It appears that this search was voluntarily, intelligently and knowingly consented to, consistent with the principles enunciated in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Contrary to appellant’s contention, no search warrant is required before a “consented to” search takes place. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831, 836, cert. denied, 291 Ala. 782, 280 So.2d 836 (1973), citing Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). We find that no right of the appellant was violated by this procedure.

II

Appellant contends that her confession was improperly admitted into evidence, now stating that she did not freely and voluntarily waive her rights. There was conflicting evidence on the issue. However, there is very strong evidence indicating the appellant’s statement was voluntarily given. The trial court’s finding that the confession was voluntary should not be disturbed on appeal unless manifestly and palpably wrong. See Burks v. State, 353 So.2d 539 (Ala.Cr.App.1977).

III

Appellant next insists that the state failed to prove the corpus delicti. Our courts have held that corpus delicti must be established by evidence sufficient to make out a prima facie case of guilt. Stated another way, the state has the burden of proving the corpus delicti independently of a defendant’s confession before a conviction can be upheld. Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973).

The facts are that the appellant was observed with Buckler the night of the robbery/murder in possession of property of the deceased. The appellant’s fingerprints were found on the lamp believed to be the murder weapon. The appellant told Mike Atkinson that she had hit Mr. Wal-drop in the head with “a vase or something.” There was no question that the victim was dead due to heart arrest resulting from the blunt force trauma. We feel that the corpus delicti was proven without regard to the confession of the appellant. There is no merit in this contention.

IV

Appellant next asserts that the court committed reversible error in allowing the state to present evidence of the appellant’s participation in the robbery of another elderly man who lived in the same trailer park two to three months after the instant offense.

Testimony was offered by David Allison, who stated that he, William Hutchins, and the appellant were riding around some two to three months after the homicide and robbery in this case. The appellant stated to the two young men that she knew where they could get some money real easy. She then drove the two boys in her car to a trailer in the same trailer park where Wal-drop had lived, and told them that an old man lived in the trailer. She told the boys to go in and get money from the old man and that if he gave them any trouble to just show him their gun. Allison testified that they entered the trailer, found the old man lying on the floor drunk. They asked him for money but he would not give them any. They saw his pants hanging on a hanger on the wall and removed the wallet from his pants. The boys returned to appellant’s car and as they drove from the scene the police appeared and placed all three of them under arrest.

As an exception to the general rule, the law permits the proof of criminal acts of the defendant to show criminal intent. In Hayes v. State, 384 So.2d 623 (Ala.Cr. App.1979), writ quashed, 384 So.2d 627 (Ala.1980), the court stated at page 626:

“If the accused is charged with a crime that requires a prerequisite intent, then prior or subsequent criminal acts are admissible to show that he had the necessary intent when he committed the now charged crime. McElroy’s Alabama Evidence, §§ 69.01(5), 70.01(2). See Fikes v. State, 263 Ala. 89, 81 So.2d 303; McKenzie v. State, 250 Ala. 178, 33 So.2d 488; Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 ...” (Emphasis supplied.)

The evidence of the second incident was admissible, since it had a bearing on the contention of the appellant that she was an innocent witness to the robbery and murder of Waldrop rather than a full participant.

y

Appellant contends that the evidence against her was insufficient to make out a prima facie case. The evidence at trial was amply sufficient to make out a prima facie case. It is immaterial whether appellant struck the fatal blow, as she stated to Atkinson, or whether her companion did so. Aiders and abettors in the commission of a felony must be tried as principals in this state. Magro v. State, 384 So.2d 871 (Ala.Cr.App.1980), cert. denied, 384 So.2d 875 (Ala.1980). Even if the facts were all circumstantial, where the jury by reasonable inference can conclude that the crime has been committed by the appellant, then that issue must be submitted to them. McCloud v. State, 401 So.2d 314 (Ala.Cr. App.1981). The actual participation by an accused need not be proved by positive direct testimony. Sanders v. State, 423 So.2d 348 (Ala.Cr.App.1982).

In light of the foregoing, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Richard E. LAKE, Jr. v. STATE.
    6 Div. 300.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Henry L. Thompson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

The appellant in this case was being held without bond in the county jail charged with first degree rape on June 7, 1983, when a writ of arrest to show cause why his probation should not be revoked was served on him. He had been on probation for two counts of assaulting a police officer with a deadly weapon. See 390 So.2d 1088 (Ala.Cr.App.1980). Judge Nice, who was succeeded by Judge Hard, had given appellant a split sentence of one year in the penitentiary and four years’ probation. At a “preliminary revocation hearing,” on June 15, appellant read a copy of the report of the probation officer concerning the new offense and recommending revocation. Judge Hard informed appellant that the alleged rape victim, age nineteen, would be the state’s witness at the final revocation hearing. Counsel was appointed. At the final revocation hearing two days later, the victim’s testimony tended to show that the appellant, who was known to her, had forced her to drive him to his house and then held a knife to her throat while he raped her. The prosecutrix was cross-examined by appellant’s counsel. At the conclusion of the hearing, the court entered a finding of fact in part as follows:

“This the 17th day of June, 1983, being the date to which cause is held for hearing came John Paul DeCarlo, District Attorney, who prosecutes for the State of Alabama, and also comes the defendant in his own proper person and by his attorney, Henry Thompson. The prose-cutrix testified under oath and subject to cross-examination by defendant’s counsel, defendant present, and State represented by H. Davis. The prosecutrix testified that defendant forcibly raped her (knife to her throat). Prosecutrix knows the defendant and no problem with identification. Excellent likihood [sic] that the defendant will be convicted of Rape First Degree, the said defendant is subject to punishment of life without parole because of his prior felony convictions.”

I

Appellant first contends that he received insufficient notice of the probation violation with which he was charged. He cites the due process requirements and guidelines as set out in Armstrong v. State, 55 Ala.App. 37, 312 So.2d 607 (1974), aff'd in part, rev’d in part, 294 Ala. 100, 312 So.2d 620, on remand, 55 Ala.App. 717, 312 So.2d 632 (1975). Armstrong, of course, incorporates the procedural guidelines set out in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Counsel for appellant moved for a continuance and requested that the revocation hearing be held after the rape trial. The court did not abuse its discretion in deciding not to postpone the revocation hearing until after the trial for the alleged subsequent offense. Neither did the trial court abuse its discretion in holding the revocation hearing two days after the preliminary revocation hearing. The record indicates appellant had actual notice ten days before the final hearing. We note that two hearings, as given appellant in this case, are not required by Armstrong, guideline seven.

II

Appellant also contends the court abused its discretion in failing to issue a written statement as to the evidence relied on and reasons for revoking probation. This contention is based on guideline five as set forth in Armstrong requiring that there be “... a written statement by the judge as to the evidence relied on and reasons for revoking probation.” We find the language quoted in I, above, from the finding of facts, to be a clear and succinct statement of the evidence relied on and the reasons for revoking probation.

Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Donald Wayne TANKERSLEY v. STATE.
    6 Div. 912.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      James R. Knight of Knight & Griffith, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Donald Wayne Tankersley was convicted of burglary and sentenced to fifteen years’ imprisonment. The victim of this burglary was Charles Tankersley, the uncle of appellant, Donald Wayne Tankersley. Charles Tankersley received a phone call from an unknown individual telling him that his son had taken ill while at an auto show in Birmingham. Mr. Tankersley and his wife left their home in Cullman County to go to Birmingham to see about their son. Before leaving home, the Tankersleys called a sister-in-law in Birmingham and asked her to check the local hospitals to find out where their son was. During the course of the trip, they stopped and called the sister-in-law again. She reported that their son was fine and had not been ill at all. The Tankersleys’ suspicion was aroused and Mr. Tankersley called a neighbor, Mr. Buck Shearer, and asked him to go check on his house. Mr. Shearer, accompanied by another man, Greg Young, went to the Tank-ersleys’ house and entered, using a key which had been left outside by the Tankers-leys for emergencies. Mr. Shearer observed that three guns were missing from their place near the stairs and were leaning against a wall upstairs. They then went down to the basement, where they found a man standing there in the dark. This man told Shearer and Young’ that he was Charles Tankersley’s nephew. He said that he had just left Tankersley’s son in Birmingham and came out to the home to collect some type of paper on an automobile. He said he had entered through a garage door. He told Shearer and Young that his (appellant’s) wife had brought him to the house, but had probably been frightened off by them, and possibly would be coming back in a short time with the police. After a few minutes, the burglar stated that his wife must be lost and he thought he should walk up to the corner so that “When she comes by I will flag her down.” Appellant then left. Some six months later, Mr. Shearer was asked to observe some people in a line-up. The appellant was one of the participants in this line-up, but had not been indicted at that time. Appellant’s counsel was present when Mr. Shearer reviewed the line-up, but was not present when the police asked Shearer about his conclusions. Mr. Shearer said that he was 90 percent certain that the appellant, Tankersley, was the burglar.

I

Appellant first contends that his constitutional rights were violated because his attorney was not present at the pre-in-dictment line-up at the time the witness was asked if he could identify one of the people in the line-up as being the burglar.

The law is reasonably well-settled that there is no right to counsel at a pre-indictment-line-up. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); King v. State, 395 So.2d 489 (Ala.Cr.App. 1981); Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982).

II

Appellant Tankersley also contends that the pre-indictment identification procedure was so suggestive as to violate his right to due process. The witness Shearer had given a description of the burglar which approximated that of the appellant before the line-up. He had also been shown pictures. Mr. Young, the other witness who saw the burglar in the house, had picked the appellant’s mug-shot out of a book of about 80 pictures. He made an in-court identification of Donald Wayne Tankersley as the man whom they had found in the home of Charles Tankersley.

Applying the totality of the circumstances test, we conclude that the identification of witness Buck Shearer was reliable. While it is true that the witness stated that he was 90 percent sure that appellant, Tankersley, was the culprit, this does not prevent the identification from being a positive identification. It is rather a matter for the jury to consider on passing on the weight and sufficiency of the testimony. Gholston v. State, 338 So.2d 454 (Ala.Cr. App.1976). The in-court identification by witness Young would itself have been sufficient to sustain appellant’s conviction at trial.

Ill

Appellant finally argues that the court erred in failing to grant his motion for new trial which was based on a statement of another person that he, not Tank-ersley, was the burglar. At the trial in the case, the defense was alibi. Appellant claimed to have been at an automobile show in Atlanta on the day of the burglary. Appellant had other witnesses appear and testify on his behalf. In support of a motion for new trial, appellant presented a witness who stated he had, in fact, committed the burglary. The trial judge denied the motion for new trial. Granting of a motion for new trial is within the discretion of the trial court. As is frequently stated, that decision will not be disturbed on appeal unless there is a clear abuse of discretion. Watson v. State, 389 So.2d 961 (Ala. Cr.App.1980). In Robinson v. State, 389 So.2d 144 (Ala.Cr.App.1980), a witness was brought forth on a motion for new trial in a robbery case stating that he and not the defendant had committed the robbery. From the trial court’s denial of the new trial motion, Robinson appealed. This court, speaking through Judge DeCarlo, stated:

“The credibility of this evidence was for the trial judge to determine. The truthfulness or falsity of the evidence presented is not for this court to decide.”

We will not disturb this determination on appeal.

Consequently, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Henry Clifton ARNOLD, Jr. v. STATE.
    6 Div. 927.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Sheldon Perhacs, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Henry Clifton Arnold, Jr., was convicted by a Jefferson County jury of the capital offense of murder during the course of a robbery in the first degree. He was sentenced to life imprisonment without parole. The single issue presented is whether the trial court erred in denying the motion to suppress the appellant’s recorded statement. Appellant challenges the voluntariness of his confession because the tape recorder recording his statement was twice turned off and then turned back on. Each time the recorder was turned back on the officers attempted to verify that nothing to mar the voluntariness of the statement had occurred during the interim period. The statement was more incriminatory in its latter stages.

The investigators’ testimony tended to indicate that the first break in the questioning came when they turned off the tape recorder and went to question a co-defendant, David Tall, in another room of police headquarters. The second break in the recording came when the appellant had a phone call and they stopped while he talked on the telephone.

Appellant testified that the investigators told him that he “held his life in the palm of his own hand,” and that it would be easier for him if he made a statement. The trial court resolved the conflict in the evidence in its ruling that the presumption of involuntariness had been overcome. We see no reason to overturn that decision.

II

At the suppression hearing, defense evidence indicated that the appellant had abused drugs and alcohol in the past, that the appellant had presented a substantial disciplinary problem when in high school, and that he had performed poorly on achievement tests. The appellant, testifying in his own behalf at the suppression hearing, claimed to have consumed enormous quantities of drugs and alcohol on the day that he confessed. He admitted to signing the rights waiver form but denied understanding its contents at the time. He said that during the two-hour interrogation he “did not have a meal” or go to the restroom. It was contended that he had limited reasoning ability or low intelligence.

We daily hear arguments from counsel that their clients are of limited mental ability. Prisons have a great many inhabitants of limited reasoning ability.

Having a low I.Q. is not a license to commit crimes in Alabama. Neither does having a low I.Q. invalidate statements unless the I.Q. is so very low that the person making the statement absolutely cannot understand his Miranda rights. The evidence in this case falls far short of proof of such a condition.

We find no error in the actions of the trial court, and, therefore, affirm. We write this as an opinion rather than a memorandum only because of the seriousness of the offense.

AFFIRMED.

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


text:
    Billy Wayne WALDROP v. STATE.
    7 Div. 146.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Hank Fannin, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Billy Wayne Waldrop was convicted in Talladega County of attempted murder and sentenced as a habitual offender to life imprisonment without parole. Waldrop and the victim, Ray Anthony Thompson, were both inmates in the Talladega County Jail. Thompson was a trustee with the duty of washing clothes for the other inmates.

A disagreement arose regarding doing the laundry, and the appellant told Thompson “... I’m going to kill you.” Waldrop subsequently told him he would kill both Thompson and his mother. The appellant stated to the sheriff and other officers, “I am going to kill that goddamned little nigger.” The sheriff said, “Who?” Appellant replied, “Reject.” “Reject”, it appears, is Thompson’s nickname.

One week after the incident, the jail inmates were in the exercise yard. Thompson felt something touch his neck from behind. He turned around and saw the appellant with a knife. Appellant struck or swung at Thompson twice around the stomach area, cutting Thompson’s coat. As Thompson started backing away, one of the officers assigned to guard the prisoners in the exercise yard, said that he saw: “Reject ... backing up towards, like he was trying to get back, you know, to the railing. And Billy Wayne was after him with what looked to be a knife.” Another guard was summoned and saw the appellant chasing Thompson with a knife in his hand. The officers drew their weapons and forced Thompson to stop and drop his knife. They retrieved the knife. They then noted a small amount of blood on Thompson’s neck. The cut was directly above the jugular vein and the carotid artery.

In defense, the appellant called several inmates, all of whom testified that the victim had attacked the appellant with a knife and that the appellant took the knife away from him.

I

Waldrop contends first that the court erred in overruling his motion to exclude the evidence at the conclusion of the state’s case. In light of the testimony recited above, there was ample evidence from which the jury might find appellant guilty and there was certainly sufficient evidence for them to consider. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), writ quashed, 378 So.2d 1173 (Ala.1979). There is no merit in this contention.

II

Appellant next contends that since he presented evidence of self-defense from several of his fellow inmates, the jury’s verdict should be reversed. By this contention, appellant apparently seeks to “quantify” the testimony,, implying that whoever had the most witnesses should win; this has never been the law. The jurors are the sole judges of the weight and sufficiency of the evidence. They have the right to disbelieve witnesses. They may take into consideration the interest which any witness might have in the outcome of the case. Obviously, they disbelieved the testimony of appellant’s witnesses here. This fact does not entitle appellant to a reversal.

III

Appellant finally contends that his motion for new trial should have been granted. In his motion, appellant claimed that his conviction was based on perjured testimony and that appellant did not learn of the alleged perjury until after his conviction and sentencing.

We find no merit in this issue. The decision whether or not to grant a motion for new trial is within the sound discretion of the trial judges, (see Ala. Digest, Criminal Law, Key No. 1156(3) and cases cited therein), and we find no evidence whatsoever that the lower court abused that discretion.

A witness, Lindbergh Adair, who testified for the prosecution, was called at the hearing on motion for new trial. At that time, the appellant undertook to make it appear that the witness had been promised his freedom in exchange for his perjured testimony against the appellant. The testimony of this witness in the record is at variance with his testimony as stated in appellant’s brief, as correctly pointed out in appellee’s brief. There is no believable evidence indicating that the prosecution knowingly offered perjured testimony. The motion for new trial, therefore, was due to be denied. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), writ denied, 366 So.2d 346 (Ala.1979).

This conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jackie Ray DEERMAN v. STATE.
    7 Div. 165.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Ralph L. Brooks, Anniston, for appellant.

      Charles A. Graddick, Atty. Gen. and Mark G. Montiel, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty as charged in an indictment which alleged in pertinent part that accused:

“... Did knowingly obtain or exert unauthorized control over, to-wit: First United Methodist Church at Saks checks numbered 874, 875, 878, 879 and 880, the property of the First United Methodist Church, of the aggregate value of, to-wit: $949.55 with the intent to deprive the said church of the said property, in violation of § 13A-8-4 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

At the conclusion of the sentence hearing, at which after due notice the State contended and proved that defendant had been previously convicted of three felonies , defendant was sentenced to imprisonment for life. The Code section cited in the indictment, § 13A-8-4, captioned “Theft of property in the second degree,” provides in the first two paragraphs thereof:

“(a) The theft of property which exceeds $100.00 in value but does not exceed $1,000.00 in value, and which is not taken from the person of another, constitutes theft of property in the second degree. “(b) Theft of property in the second degree is a Class C felony.”

The codification of the Habitual Felony Offenders Act provides at § 13A-5-9(c)(l) that when “a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years .... ”

The first issue presented by appellant is thus stated in his brief:

“Did the State produce sufficient evidence to support a charge of theft in the second degree when the undisputed evidence showed all that was allegedly stolen was nine blank checks that were later forged and cashed.”

At the conclusion of the evidence presented by the State, defendant orally moved for a judgment of acquittal which, after argument by attorneys for the respective parties, was overruled. The defendant then rested without presenting any evidence, arguments were made by counsel for the respective parties, the court charged the jury orally, and soon thereafter the jury returned a verdict finding the defendant guilty as charged in the indictment.

We quote the following from appellee’s brief under the caption of “STATEMENT OF THE FACTS”:

“The present case involves a case of theft in the second degree from the First United Methodist Church of Saks. Robert B. Tillett, manager of Borden’s Dairy in Anniston and treasurer of First United Methodist Church of Saks, testified that he discovered five checks which had been paid on the church bank account when he received the September statement in early October. Tillett also testified that he recalled two women and one man having come into Borden’s Dairy in mid-September, 1982, inquiring about employment ... Tillett testified that after receiving the September statement, he examined the church check book and discovered that nine checks were missing, of which five had been cashed (R. 12-14). Tillett identified the five checks which had been paid on the church account which he did not sign and which had been stolen from the check book at the dairy.”

Mr. Tillett further testified to the effect that in mid-September, 1982, “a large, white male,” accompanied by two females, was in Borden’s Dairy. As further stated in appellee’s brief:

“Barney Mathews and Kim L’Heureux testified that they were co-conspirators with the appellant and that the three of them went to Borden’s Dairy in mid-September, 1982 ... that the appellant took three pages of checks from the check book of the First United Methodist Church of Saks which was in Tillett’s desk in Tillett’s office. Mathews acted as look out and L’Heureux distracted Tillett by asking him several questions about employment. Mathews and L’Heureux identified the appellant as being the person who physically took the checks from Borden’s Dairy. (R. 31, R. 90).... Mathews then testified that the three would wait until after Borden’s Dairy was closed for the night and would call to make sure there was no answer. The appellant would then fill in the amount on the check with a check stamping machine and ordered Mathews to fill out the date and payee and to forge the check with the name Bob Tillett. Deer-man then instructed the other woman, Kim L’Heureux, to go into a grocery store and cash a check while Mathews and Deerman waited in the parking lot. Mathews, L’Heureux and Deerman would then share the proceeds of the check.”

The two' witnesses further testified that they had used the same means of operation to steal checks from other businesses in Calhoun County. According to the undisputed evidence, the aggregate value of the five checks as the amounts had been filled in in the blank spaces thereof was $949.55.

In support of its position that there was sufficient evidence for the jury to find appellant guilty of theft in the second degree and that the trial court was correct in denying defendant’s motion “for a directed verdict,” appellee relies largely upon Section 13A-8-l(14), which provides:

“VALUE. The market value of the property at the time and place of the criminal act.
“Whether or not they have been issued or delivered, certain written instruments, not including those having a readily ascertainable market value such as some public and corporate bonds and securities shall be evaluated as follows:
“a. The value of an instrument constituting an evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon or thereby, that figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied.
“b. The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of loss of the instrument.
“When the value of property cannot be ascertained pursuant to the standards set forth above, its value shall be deemed to be an amount not exceeding $100.00.”

Appellee argues that it is the “duty of the court to ascertain and give effect to the legislative intent as expressed from the words of the statute. [Winstead] Winsted v. State, 375 So.2d 1207 (Ala.Civ.App.1979), cert. denied, Ex parte [Winstead] Winsted, 375 So.2d 1209 (Ala.1979).” We agree, but we do not agree with the contention that the Legislature intended by the language quoted that the undisputed facts in the instant case show the violation of the particular statute involved.

We have no difficulty in reaching the conclusion that the Legislature did not intend by § 13A-8-l(14) that a blank check, whether personalized or not, is “an instrument constituting an evidence of debt” and that nothing that was done to and with such blank check by defendant and his accomplices made the check “an instrument constituting an evidence of debt.” They made the instrument to appear as if it were an evidence of debt. Such conduct constitutes forgery in the second degree as defined and proscribed by Section 13A-9-3:

“(a) A person commits the crime of forgery in the second degree, with intent to defraud, if he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
“(1) A deed, will, codicil contract, assignment or a check, draft, note or other commercial instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or

The trial court committed reversible error by its denial of defendant’s motion for a judgment of acquittal. This conclusion makes it unnecessary for us to consider any of the other three issues presented by appellant. We do not, and probably should not, endeavor to delineate the course of any further prosecution of this appellant for what, according to the undisputed evidence, he has done. The judgment of the trial court should be reversed and the cause remanded for any further proceedings consistent with this opinion.

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.

REVERSED AND REMANDED.

All the Judges concur, except HUBERT TAYLOR, J., who dissents.

      . Many more, as many as about nine previous felony convictions, were shown.


text:
    Robert Lee GORMAN v. STATE.
    7 Div. 203.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Fred Ray Lybrand, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

A Calhoun County jury found Robert Lee Gorman guilty of robbery in the second degree. He was sentenced to life imprisonment.

The state’s evidence tended to show that Aubrey Shears and his wife returned to their home about 7:30 in the evening. Suspecting that someone was in their garage, they turned their truck lights on in order to shine them into the garage. Mr. Shears then saw the defendant kneeling beside a car with a lug wrench in his hands, obviously taking the lug nuts off one of the car wheels. Shears’s boat had been backed in the garage and the pad-locked wing nuts on the boat’s motor had been broken. Another man, James DeMoonie, was seen standing behind the boat. Both the appellant and DeMoonie edged toward the front of the garage and stood together in front of Mr. Shears. Shears pulled his knife, and opened the blade. The appellant said,' “Oh, the hell with it,” and swung at Shears, who dodged the blow. Both the intruders ran. DeMoonie shoved Shears with both hands as he ran past. Shears tackled DeMoonie in the yard. Police Officer Billy Lett arrived at the Shears home at approximately 7:30 p.m. He checked on the identification of an automobile parked about 100 yards from the Shears home and found that it belonged to DeMoonie. Later, the DeMoo-nie vehicle started rolling down the street with the headlights off. Officer Lett followed the vehicle and eventually caught up with the appellant, who was driving, and arrested him for driving while under the influence of alcohol.

I

On appeal, Gorman first asserts that the state failed to make out a prima facie case, and that the court should have granted his motion for a judgment of acquittal. Specifically, he contends that the state failed to prove the elements of robbery, denying that force or threat of force was proven.

The indictment in this case charged that the appellant, Robert Lee Gorman,

“... did, in the course of committing a theft of One (1) 25 horsepower Evenrude outboard motor, the property of Aubrey L. Shears, while being aided by James Daniel DeMoonie, another person, who was actually present, threatened the imminent use of force against the person of Aubrey L. Shears, with intent to overcome his physical resistance or physical power of resistance, in violation of Section 13A-8-4 of the Code of Alabama.”

Appellant contends that there was a failure of proof as to his use or threat of force.

A person commits the crime of robbery in the second or third degree, under Section 13A-8-42, and Section 13A-8-43, Code of Alabama 1975, if, in the course of committing a theft, or in flight after the attempt or commission, he uses, or threatens the use of imminent force against the owner or any person present, with the intent to overcome his physical resistance. Petty v. State, 414 So.2d 182 (Ala.Cr.App. 1982). Section 13A-8-40(b) states:

“ ‘In the course of committing a theft’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”

That definition exactly fits the facts in this case. Appellant’s contention is without merit.

II

Appellant next contends that the trial court should have allowed an amendment to the indictment to include lesser included offenses. Appellant also claims the court should have charged on lesser offenses. The court, in fact, did charge on the lesser included offense of third degree robbery. Appellant made no written request for a jury instruction on attempted theft, and so did not preserve the issue. Allen v. State, 414 So.2d 989 (Ala.Cr.App.), aff’d, 414 So.2d 993 (Ala.1982). The court certainly did not err in not amending an indictment on the motion of the appellant.

III

Appellant finally contends that the court erred in overruling an objection to statements made by the prosecutor during summation. From an examination of the record, it is difficult to tell exactly what the district attorney said, and what point he was trying to make. We are unable to say that the statements were improper, and consequently, we will not consider reversal on the basis of this record.

This case is affirmed.

AFFIRMED.

All the Judges concur.