author: EMBRY, Justice.

text:
    Ex parte Percy Leo DOBARD. (Re: Percy Leo Dobard v. State of Alabama).
    81-999.
    Supreme Court of Alabama.
    July 8, 1983.
    Rehearing Denied Aug. 5, 1983.

      David A. Reid, Livingston, for petitioner.
    Charles A. Graddick, Atty. Gen. and Ed Carnes and Jean Williams Brown, Asst. At-tys. Gen., for respondent.
   EMBRY, Justice.

This case is a review of the conviction of the petitioner, Percy Leo Dobard, for violation of § 13A-5-31(a)(5), Code 1975, murder of a police officer on duty. After a separate sentencing hearing, Dobard was sentenced to death by electrocution. The Court of Criminal Appeals affirmed the conviction and sentence on 29 June 1982. This court issued the writ of certiorari and now affirms the decision of the Court of Criminal Appeals.

After a careful review of the record, this court adopts the findings of fact as set forth by the late Judge Barron:

“Some time between 5:00 a.m. and 6:00 a.m. on Saturday, June 21, 1980, O’Jim’s Restaurant in Eutaw, Alabama was robbed by appellant and a female companion, Jeanette Kennedy. After Kennedy left the restaurant, appellant pulled a pistol on waitress Corethea Hitton and demanded ‘give me all your money.’ Ms. Hitton complied with the demand. Appellant and Kennedy speedily fled, and Ms. Hitton called the Eutaw Police.
“About 35 miles from the scene of the robbery, appellant, who was driving the getaway vehicle, was spotted by Livingston University Police Officer Wayne Sudduth, who .was assisting in the search for the suspects. Officer Sudduth was aware that the robbery had occurred and apparently had knowledge of the description of the getaway vehicle from a police radio broadcast.
“Officer Sudduth informed Livingston Police Officer Raymond Burne that he was stopping the vehicle. Officer Sud-duth, who was dressed in a blue uniform, was driving a marked police car.
“With his flashing lights on, Officer Sudduth stopped the vehicle which contained appellant and Kennedy. He approached the driver’s side of the car and asked for appellant’s driver’s license. Appellant opened the car door and reached around as if to get his billfold. However, according to the testimony of witness Kennedy, rather than removing his billfold he grabbed a .38 caliber revolver and shot Officer Sudduth, killing him. The evidence indicated that officer Sudduth did not have his service revolver drawn, as it was found in his holster with the safety strap in place.
“After the shooting of officer Sudduth, appellant and Kennedy sped away, only to wreck their vehicle on the western edge of Livingston. Both exited the car and walked up the road where they hid in some bushes until a truck driven by Mr. Johnny Mathews approached. Mathews saw appellant come from under a bridge and act as if he were injured. Mathews stated that appellant was yelling for help and he stopped his truck on the side of the road. When appellant came within close proximity of the truck, he pulled the revolver, pointed it at Mathews’s face and demanded the keys to the truck.. After a brief period of time, during which Sumter County Deputy Sheriff Ralph Rainey drove past appellant, Kennedy, and Mathews, appellant secured the keys and fled with Kennedy.
“Deputy Rainey reported what he had seen to the Livingston Police Department and was informed that he had observed the restaurant robbery suspects. Deputy Rainey set a roadblock and while moving his patrol car to allow a vehicle to pass, appellant drove Mathew’s truck past him. A high speed chase ensued involving several vehicles.
“Another roadblock had been set by York City police officers about halfway between Livingston and York. As the truck approached, the officers at the roadblock began to fire at it. Immediately thereafter, the truck wrecked and overturned. Subsequently, Deputy Rai-ney saw appellant throw a gun out of the truck cab. Deputy Rainey immediately retrieved it. Appellant and Kennedy were taken into custody, transported to a local hospital for examination, and after-wards taken to Sumter County Jail.” The petitioner raises six issues on this

review.

I.

The first issue posed by the petitioner is whether the media coverage surrounding the attempted assassination of President Reagan improperly influenced the jury and thereby denied petitioner the right to a fair trial as guaranteed by the Fifth and Sixth Amendments to the Constitution of the United States.

During the last two days of sequestration, all the members of the jury were allowed to, and did view on television, news accounts of the assassination attempt on President Reagan. The petitioner contends this exposure unlawfully influenced the jury by encouraging them to convict the petitioner. While it is not delineated in the record precisely which news accounts the jury actually viewed, the petitioner claims the news accounts were riddled with edito-rialization. The subliminal message allegedly transmitted to viewers was that something was wrong with America and Americans must take action. The available course of action for the jury, argues the petitioner, was to convict the petitioner of a capital crime. In support of this argument the petitioner relies principally upon the doctrine of Seekers v. State, 35 Ala.App. 40, 44 So.2d 628, cert. denied, 253 Ala. 420, 44 So.2d 633 (1949).

In Seekers the jury was taken to a movie which bore striking similarities to the case being tried. The crime charged, and that portrayed in the movie, were both of a violent nature. The location of the victim’s wounds in both instances was the same. Earlier that day, the jury had heard medical testimony concerning the wounds. Lastly, the film presented detailed accounts of the trial and convictions of the villains. Considering the similarities between the film and the trial, the court noted: “We would be compelled to enter into the realm of speculation, conjecture and surmise to hold that by witnessing the performance the jury was not unduly influenced against the interests of the accused.” Seekers, supra.

Seekers and the case at bar, however, are distinguishable. Other than the violent nature of the crimes involved, the assassination attempt and petitioner’s case bear few if any similarities. This court does not find that the news accounts complained of influenced the jury in the present case. Similarly, this court does not find that television coverage of the event influenced the jury through editorialization to the extent shown by Styles v. State, 129 Ga. 425, 59 S.E. 249 (1907), as petitioner contends.

In Styles, the jury, while sitting for a murder case, was permitted to read an editorial criticizing jurors for their reluctance to convict murderers. The obvious impact and influence such an editorial could promulgate is not present here. Whatever “editorial message” the jurors in this case could have gleaned from the news accounts of the attempts on President Reagan’s life was certainly unrelated and detached from their deliberations about this case. To hold otherwise would be to delve into boundless speculation.

“The test of vitiating influence is not that it did influence a member of the jury to act without evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered.” Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932). We hold the exposure to television coverage of the assassination attempt on President Reagan did not influence the jurors to the extent that they would have acted without evidence. Accordingly, the trial judge properly denied petitioner’s motion for a new trial based on these grounds.

II.

The second contention raised is that the State used its peremptory strikes in an unconstitutional manner by systematically excluding “young blacks” from the jury. Petitioner is black and his victim, Officer Sudduth, was white. The jury was composed of seven blacks and five whites. This issue falls squarely under the tutelage of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, reh. den., 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965).

In order to make a constitutional claim under the doctrine of Swain, petitioner must allege a systematic use of peremptory challenges against blacks over a period of time. Swain, 380 U.S. at 227, 85 S.Ct. at 839. Otherwise, the presumption that the prosecutor is utilizing the State’s strikes in a fair and impartial manner must stand. Id., at 222, 85 S.Ct. at 837. Petitioner has failed to meet the burden of proof announced in Swain. Consequently, his claim must fail. Accord Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

Additionally, we recognize, as did the Court of Criminal Appeals, that Allen v. State, 414 So.2d 163 (Ala.Cr.App.1982), most recently resolved this issue adversely to the petitioner. See also Lopez v. State, 415 So.2d 1204, 1209 (Ala.Cr.App.1982).

III.

Petitioner’s next contention is that he was denied an impartial jury as guaranteed by the United States and Alabama Constitutions. The contention is based on two grounds: (1) Two veniremen were excused for cause due to their opposition to capital punishment, in contradiction of the holding of United States v. Witherspoon, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (2) The prosecutor improperly secured a “promise” from the jury during voir dire that they would sentence the defendant to death if guilt was shown. We reject this contention whether based on either ground.

In Witherspoon the Supreme Court held: “[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id., at 522, 88 S.Ct. at 1777. This position was reaffirmed in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1972). Consequently, no venireman may be removed for cause unless it is determined that his views as to capital punishment are so strong that he “would automatically refuse to impose a death sentence regardless of the evidence produced.” Liddell v. State, 287 Ala. 299, 251 So.2d 601, 610 (1971).

The petitioner challenges the removal of veniremen Daisy Cannon and Sim McCas-son. Regarding prospective juror Cannon the record reflects the following:

“MR. WATKINS [Prosecutor]: Yes, sir. Ladies and Gentlemen, the Judge has already qualified you on capital punishment, but I would like to go into it a little bit further to make sure that we understand each other.
“This case that we are going to try is one of the cases enumerated in the statute that says that a person may receive death if you find him guilty of a certain offense; and, I want to know if we all understand each other, that each of you are telling me individually, that if you believe beyond a reasonable doubt and to a moral certainty the necessary elements to return a verdict, which would mean that this person would be put to death by electrocution, that you would be able to do that? Is that what everybody is telling me? Is there anybody that would not be able to do that?
“PJ: I don’t believe I would.
“THE COURT: All right; would you please stand up and give your name, please ma’am?
“PJ CANNON: Daisy Cannon. And, I just don’t believe I could send anyone to the electric chair.
“Mr. WATKINS: [Prosecutor]: Mrs. Cannon, are you telling the Court that no matter what the evidence is; that if you believe beyond a reasonable doubt and to a moral certainty that this person did it; that if we follow the statute to show that we can prove all the necessary elements, that you would not be able to vote guilty if it meant that he would be sent tc death?
“PJ CANNON: I don’t think I would.”

Prospective juror McCasson’s comments may also be found in the record:

“THE COURT: In this case, the State of Alabama, if the defendant is found guilty of the charge in the indictment, has indicated they plan to ask for the death penalty if the defendant is found guilty beyond a reasonable doubt as charged. Now, is there anyone on the jury panel that has a fixed opinion against capital punishment? In other words, does anyone have a strong feeling, a fixed opinion, against capital punishment? If so, I would like to see a show of hands.
“Yes sir. Mr. McCasson. You have an opinion against capital punishment?
“PJ McCasson: Yes, sir.
“THE COURT: And, you do not feel that you would be able to return a verdict sentencing someone to the electric chair if they were found guilty beyond a reasonable doubt and to a moral certainty of the crime of the charges; is that correct?
“PJ McCASSON: My opinion about it, I think it should be some other way without taking a life for a life.
“THE COURT: All right; I understand and I respect that, sir. I am just trying to ascertain each one of your opinions. So, it is your view that you have a fixed opinion against capital punishment?
“PJ McCasson: Yes, sir.
“THE COURT: No matter what the evidence would be in a case you would not be able to vote for capital punishment?
“PJ McCASSON: Yes, sir.”

The court finds it difficult to envision how either prospective juror could have been more explicit in expressing an unqualified opposition to the death penalty. Accordingly, under Witherspoon and Liddell, prospective jurors Cannon and McCasson were properly removed for cause.

The second facet of voir dire with which petitioner takes issue, the prosecutor’s questioning, may also be found in the record.

“MR. WATKINS: ... It is my understanding from you that we all understand that the State has the burden of proving to you beyond a reasonable doubt and to a moral certainty, that this man is guilty as charged. I’m asking you to go one step further in assuming that the State of Alabama proves to you beyond a reasonable doubt and to a moral certainty that this man is guilty of the capital offense as charged, will all of you promise to me that you will be about [sic] to return a verdict that will place him in the electric chair and cause his death? Everybody, search your conscience now and answer it honestly because that’s all we want to know is what you are thinking and how you feel. Would each of you tell me that if I prove to you, the State proves to you, beyond a reasonable doubt and to a moral certainty that this man is guilty as charged of a capital offense, that you will be able to vote for the death penalty?
“MR. WATKINS: I take it by your silence that you all will.
“Thank you. That’s all.”

Petitioner argues that this line of questioning amounted to a promise, between the prosecutor and the jury, to return a sentence of death if the defendant was shown to be guilty. We cannot agree.

Concededly, this question does contain the word “promise.” However, this word must be considered in its full context. Most importantly, the phrase “will be able” indicates that the prosecutor is not looking for a commitment from the jurors, but rather simply seeking to ascertain whether the jury has the capacity to fulfill its duty. In our view, this line of questioning is proper.

IV.

Petitioner’s fourth contention is that the imposition of the death sentence in this case constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. We cannot agree.

The petitioner concedes that the death sentence is not per se unconstitutional, but nevertheless argues that a sentence of death in the instant case is inconsistent with the holding of Enmund v. Florida, -U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

In Enmund the Supreme Court held that the Eighth Amendment prohibited the imposition of the death sentence upon a defendant who aided and abetted in the commission of a robbery, in the course of which a murder was committed, but where no evidence was offered to show that the defendant actually killed or intended to kill anyone. Id., at 3377.

In an attempt to square the facts in the case at bar with those presented in Enmund, petitioner argues a collage of facts not mentioned by the Court of Criminal Appeals. We note that in doing so, petitioner has failed to comply with the provision of ARAP 39(k) which provides in pertinent part:

“If the petitioner is not satisfied with that [Court of Criminal Appeals’] statement of facts, he may, on application for rehearing in that court, present any additional or corrected statement of facts and request that court to add or correct those facts in its opinion on rehearing. If the court fails to accede to this request, petitioner may copy the statement in the petition to this court, with references therein to the pertinent portions of the clerk’s record and reporter’s transcript, and it will be considered along with the statement of facts in the opinion of the appellate court, if found to be correct.”

Furthermore, after careful review of the entire record, we find no plain error or defect in the proceedings below. Therefore, we limit our considerations to the facts set out by the Court of Criminal Appeals. ARAP, 39(k).

[7] Overwhelming evidence of record shows that Dobard pulled the trigger, firing the shots that killed Officer Sudduth. Consequently, we find no merit to petitioner’s contention that Enmund v. Florida, - U.S.-, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), precludes imposition of the death penalty in this case.

We also reject petitioner’s argument regarding disproportionate sentencing, as the petitioner clearly bears more culpability than his accomplice, Kennedy. Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978); Beck v. State, 396 So.2d 645, 664 (1981).

Petitioner argues further that the trial court’s findings of aggravating circumstances were erroneous, as one circumstance was already charged in the indictment. Under the doctrine of Keller v. State, 380 So.2d 926, 937 (Ala.Cr.App.), cert. denied, 380 So.2d 938 (Ala.1980), argues petitioner, one circumstance may not serve the dual purpose of both charge and aggravating circumstance.

The trial court noted two aggravating circumstances: (1) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest; and, (2) The capital felony was committed while the defendant was engaged in flight after committing a robbery.

We noted in Beck v. State, 396 So.2d at 663:

“In Alabama, the aggravating circumstances constitute an element of the capital offense and are required to be ‘averred in the indictment’ (Code 1975, § 13-11-2), and must be proved beyond a reasonable doubt. Consequently, the jury verdict that the defendant was guilty of committing the capital offense would mean that the State had already established at least one aggravating circumstance, even though the legislature did not include an aggravating circumstance in § 13-11-6 to correspond with the ‘aggravation’ made a part of each capital offense by § 13-ll-2(a). In addition, the State would be permitted to offer evidence of any other aggravating circumstance contained in § 13-11-6, which was not ‘averred in the indictment’ but which was proved beyond a reasonable doubt at trial or by the evidence taken at the sentencing hearing....”

The doctrine of Keller v. State, 380 So.2d 926, is not applicable, as alleged, in the instant case. Therefore, we reject petitioner’s argument in this regard.

Additionally, petitioner asserts that the State fell short of showing that the murder was committed while the defendant was engaged in flight after committing a robbery. We do not agree.

The State must prove aggravating circumstances “beyond a reasonable doubt.” Beck v. State, 396 So.2d at 663. We find that the State proffered sufficient evidence to meet this burden. Testimony indicated that the petitioner robbed O’Jim’s restaurant and then drove at high speeds for some thirty miles. Officer Sudduth’s lights were flashing when he detained petitioner. Officer Sudduth was shot shortly after approaching the window of Dobard’s vehicle.

Petitioner insists that the trial judge and jury failed to consider nonstatu-tory mitigating circumstances in rendering a sentence of death. In support of this contention petitioner offers the sentencing order of the trial court, which fails to mention any nonstatutory mitigating circumstances. The judge and jury should consider both statutory and nonstatutory mitigating circumstances. Beck v. State, 396 So.2d at 663. This should include all relevant evidence that indicates “not only why a death sentence should be imposed, but also why it should not be imposed.” Id., at 662. A review of the sentence hearing reveals the following instruction of the court to the jury:

“So those are the mitigating circumstances that the law of Alabama provides. In addition to mitigating circumstances that I just read to you, you may also consider as a mitigating circumstance any aspect of the defendant’s character, his life, and any of the circumstances of the capital offense which tend to indicate that the defendant should not be sentenced to death. Mitigating circumstance does not have to be included on the list that I have read to you in order for you to consider it. Mitigating circumstances considered by you should be based on the evidence that you have heard. And if you are satisfied from the evidence presented during the guilt stage of the trial or during the sentencing hearing, that a mitigating circumstance exists in this case then you should consider it. Mitigating circumstance need not be proven to you — need merely be proven to your satisfaction. It does not have to be proven beyond a reasonable doubt for you to consider it. Only an aggravating circumstance has to be proven beyond a reasonable doubt and that burden is on the State.” .

The fact that nonstatutory mitigating circumstances were not listed in the sentencing report is by no means conclusive that they were not considered. ' In light of the instructions given to the jury, it is clear that they were in fact considered.

We conclude: (1) The murder of a policeman on duty under the existing aggravating circumstances balanced against the mitigating circumstances is properly punishable by a sentence of death; (2) Similar crimes throughout the state are being punished capitally, see Magwood v. State, 426 So.2d 929 (Ala.Cr.App.1982); Owen v. State, 418 So.2d 214 (Ala.Cr.App.1982); Watkins v. State, 409 So.2d 901 (Ala.Cr.App.1981); and, (3) The sentence of death is appropriate when considered with the role and sentence of his accomplice Jeanette Kennedy. Accordingly, imposition of the death penalty was not error. Gregg v. Georgia, 428 U.S. 153, 193, 96 S.Ct. 2909, 2934, 49 L.Ed.2d 859 (1976); Beck v. State, 396 So.2d at 664.

V.

The fifth issue raised is whether the indictment sufficiently charges the petitioner with a capital felony. The petitioner contends that the indictment is deficient as it fails to aver any aggravating circumstances enumerated in § 13A-5-35, Code 1975.

This issue may be resolved by turning to the guidance of Kyzer v. State, 399 So.2d 330 (Ala.1982). Kyzer made it clear that the gravamen of a capital offense is an “intentional killing.” Id., at 335. In order for the death sentence to be imposed, however, an intentional killing with aggravation must be shown. Beck v. State, 396 So.2d 645 (Ala.1980). Herein lies the distinction between the related concepts of aggravation and aggravating circumstances. The capital offenses set forth in § 13A-5-31 contain an “intentional killing,” the gravamen, and aggravation. Both must be averred in the complaint. Id., at 663. The aggravating circumstances listed in § 13A-5-35 are those considered during the sentencing hearing mandated by Beck.

This conclusion parallels that in Kyzer, where this court proclaimed:

“If a defendant is convicted of ‘murder in the first degree wherein two or more human beings are intentionally killed,’ and if the jury, after a hearing conducted in accordance with the principles set out in Beck, fixes the penalty at death, the trial judge, if convinced that the ‘aggravation ’ averred in the indictment ‘that two or more human beings were intentionally killed by the defendant by one or a series of acts’ outweighs the mitigating circumstances, may impose a sentence of death by setting forth in writing, as required by § 13-11-4, his findings, even though the ‘aggravating circumstance’ is not ‘enumerated in § 13-11-6.’ The jury could make the same finding at its sentence hearing mandated by Beck.”

Kyzer, 399 So.2d at 338.

The indictment charging the petitioner reads as follows:

“Percy Leo Dobard ... did, unlawfully and with malice aforethought intentionally cause the death of another person, Carlton Wayne Sudduth, by shooting him with a pistol; while the said Carlton Wayne Sudduth was a police officer on duty as a Livingston University Security Police Officer under the provisions of Title 16-53-12, Code of Alabama, 1975 in violation of 13A-5-31 of the Code of Alabama against the peace and dignity of the State of Alabama.”

We find that this indictment avers both the gravamen of a capital offense, and the required aggravation, “while said Carlton Wayne Sudduth was a police officer on duty.”

The trial court properly denied petitioner’s motion to dismiss and overruled his demurrer to the indictment.

VI.

The final issue raised is whether the State’s closing argument impermissibly commented upon the petitioner’s failure to take the stand. The disputed comments read as follows:

“There is no evidence before you that could give you any reason why you could think that Jeanette Kennedy shot Officer Sudduth as opposed to Mr. Dobard. The evidence is very clear. As far as I can see, and it is undisputed, that Percy Do-bard shot and killed Officer Wayne Sud-duth.”

“[W]here there is the possibility that a prosecutor’s comment could be understood by the jury as reference to failure' of the defendant to testify, § 6 [Const. of Ala. of 1901] is violated.” Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727, 734 (1975). Additionally, we noted in Beecher:

“Where the State’s evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury. In that circumstance the prosecutor could say: ‘There has been no refutation of any of the evidence presented by the State;’ or more simply, ‘The State’s evidence stands uncontradicted,’ or other appropriate comment to like effect.” Id.

We hold that the prosecutor’s comments in question could not have been understood as being a reference to the defendant’s failure to testify, but rather fall squarely within the approved bounds of Beecher. Consequently, the petitioner’s constitutional rights were not violated.

For the foregoing reasons the judgment of the Court of Criminal Appeals is due to be and is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Brenda Diane STORY, alias v. STATE.
    5 Div. 659.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Rehearing Denied Dec. 28, 1982.

      William T. Denson, Goodwater, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Possession of methaqualone; four years.

Appellant was convicted of possessing methaqualone in violation of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama 1975.

While patrolling U.S. Highway 280 during the early morning hours of August 2, 1980, Dadeville Police Officers J.W. Tapley and Leonard Brand observed a 1973 Cadillac weaving back and forth across the center lane of the highway. They stopped the car and arrested the driver, Michael Dean Walls, for D.U.I. Appellant was the only other occupant and was seated in the front passenger seat.

Walls was placed in the patrol car and transported to the Dadeville Courthouse for a breath alcohol analysis (P.E.I.) test. Brand drove the Cadillac, with appellant, into Dadeville and parked it in front of City Hall, which is approximately a block from the courthouse. Appellant was informed that she could wait inside City Hall until the P.E.I. test was administered to Walls. She got out of the car, taking her purse, and locked the door on the passenger side. Brand locked the door on the driver’s side.

According to Brand, upon entering the Cadillac he had observed a pistol on the floorboard of the driver’s seat and a shotgun in the back seat. After picking up a third officer to administer the P.E.I. test, Brand returned to the Cadillac to remove the weapons. The dash and interior lights came on when he unlocked and opened the door on the driver’s side. When he leaned down to retrieve the pistol, Brand observed a clear plastic bag protruding from underneath the passenger seat. The bag contained green vegetable material and was partially inside another bag resembling a cosmetic bag or a man’s shaving kit. (The court instructed the attorneys and witnesses to refer to this second bag as merely “State’s Exhibit 1,” which we have done in this opinion.)

Brand picked up the clear plastic bag which came out of State’s Exhibit 1 bag, along with some money. The State’s Exhibit 1 bag had a spring-type opening and, after the clear plastic bag and the money were retrieved, it snapped closed. Brand then opened State’s Exhibit 1 bag which contained two bags of pills and “some paraphernalia which is used in conjunction with marijuana.” Both appellant and Walls denied ownership of the State’s Exhibit 1 bag.

Brand stated that he turned the State’s Exhibit 1 bag and its contents over to Investigator David Berry, who delivered them to the Department of Forensic Sciences in Auburn. Taylor Nogel, a forensic drug analyst, testified that tests performed on two of the 198 pills in State’s Exhibit 1 bag revealed that the tablets contained metha-qualone, a controlled substance.

Ronnie Thomas testified that around 10:00 P.M. of August 1, 1980, he saw appellant and her cousin, Mike Branch, at the access area close to a local marina. Appellant had a small bag in her hand which Thomas said looked “something like” the State’s Exhibit 1 bag, but that he could not be sure because there was no lighting at the access area.

Appellant’s cousin, Michael Branch, stated he had never seen State’s Exhibit 1 in appellant’s possession, nor in anyone’s possession. Branch said on the night in question he introduced appellant to Mike Walls at the Exit Inn and appellant left with Walls and he (Branch) left in appellant’s car.

Walls testified on rebuttal for the State that he was currently serving a sentence for violation of the controlled substances act. He stated that Branch had introduced him to appellant and that the State’s Exhibit 1 bag did not belong to him. On cross-examination, he acknowledged that he had purchased the 1973 Cadillac the afternoon of August 1, 1980.

I

Appellant challenges the search of the Cadillac and asserts that the elements required to support a plain view search were not present.

Appellant asserted neither a property nor possessory interest in the Cadillac, nor an interest in the State’s Exhibit 1 bag. Therefore, appellant has failed to establish her standing to challenge the search. Rakas v. Illinois, 439 U.S. 128, 148, 99 S.Ct. 421, 433, 58 L.Ed.2d 387 (1978); McCraney v. State, 381 So.2d 102, 105 (Ala.Cr.App.1980).

II

Appellant contends the evidence was insufficient to support her conviction and the trial court erred in overruling her motion to exclude.

As Judge Bowen, writing for this court, stated:

“In reviewing the sufficiency of the evidence the appellate courts of this State are bound by several well settled rules. It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt and to a moral certainty. Instead, the function of this Court is to determine whether there is legal evidence from which a jury could by fair inference find the defendant guilty. “In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State and accord the State all legitimate inferences therefrom. The evidence must be considered in the light most favorable to the prosecution. “Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust.” [Citations omitted] Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.1979), cert. denied, 378 So.2d 1173 (Ala.1979).

A prima facie case of possession of a prohibited drug or substance must show constructive possession by the accused of a controlled substance plus knowledge on his part of the presence of the narcotic. Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.1981); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.1977), cert. denied, 349 So.2d 94 (Ala.1977). Constructive possession of a narcotic requires proof beyond a reasonable doubt that the defendant had knowledge of the drug’s presence, Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978), which may be established by the surrounding facts and circumstances, McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979).

While the defendant’s mere presence in an automobile where illicit drugs are found will not support a conviction for possession, unlawful possession may be inferred when his presence is coupled with the existence of additional evidentiary factors. Reed v. State, 368 So.2d 326, 328 (Ala.Cr.App.1979). The defendant’s proximity to the drugs is an evidentiary factor which may be considered. Reed, supra; 57 A.L.R.2d 1319, 1329 (1974).

In the present case, the tablets containing methaqualone were found underneath the appellant’s seat. Thomas testified that when he saw appellant earlier in the evening, she had the bag in which the tablets were found. Constructive possession and knowledge of the presence of the drug could be inferred from this evidence.

The evidence in this case raised a question of fact for the jury which, if believed, is sufficient to support the conviction. Therefore, the trial court properly overruled appellant’s motion to exclude. Roberts v. State, supra.

HI

Appellant asserts that the trial court “should have granted a mistrial or otherwise should have instructed the jury to disregard” the following statements contained in the assistant district attorney’s closing argument:

“Everyone of you know the most serious problem we have right now is drugs—
“We have a good community down here, you all probably lived here longer than I have, but I don’t want this kind of stuff going on down here, and I don’t believe you do.”

Appellant objected without specifying any grounds, and moved for a mistrial. In each instance, the motion for mistrial was denied. However, no ruling was sought or obtained on the objection, nor was a motion made to exclude or for curative instructions.

The granting of a mistrial is within the sound discretion of the trial judge and his decision will not be disturbed on appeal unless a clear abuse of discretion is shown. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); Napier v. State, 337 So.2d 62 (Ala.Cr.App.1976). No abuse of discretion was shown in this case.

In the absence of a request for a curative instruction, and an objection to the court’s failure to give such an instruction, the issue is not properly preserved for review. Aplin v. State, [Ms. 4 Div. 893, August 24, 1982] 421 So.2d 1299 (Ala.Cr.App.1982); Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980); Robinson v. State, 389 So.2d 144 (Ala.Cr.App.1980), cert. denied, 389 So.2d 151 (Ala.1980). Moreover, both remarks were permissible and therefore required no curative instruction by the trial court ex mero motu. See Aplin, supra; Moberg v. State, 385 So.2d 74 (Ala.Cr.App.1980); Chatom v. State, 360 So.2d 1068 (Ala.Cr.App.1978), cert. denied, 360 So.2d 1074 (Ala.1978).

IV

Appellant contends that the trial court committed reversible error in denying her motion of autrefois convict without a hearing and without the State having filed a demurrer thereto. This motion was filed in open court on the date of trial.

Ordinarily, a court may not overrule a motion of autrefois convict, or plea of former jeopardy, without allowing the party an opportunity to submit supporting evidence. Berland v. City of Birmingham, 36 Ala.App. 488, 60 So.2d 377 (1952), cert. denied, 257 Ala. 571, 60 So.2d 378 (1952). An accused is entitled to a jury trial on the issues of fact raised by the plea and the issue of former jeopardy should be submitted for the jury’s determination before submission of the issue of guilt. Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970); Carter v. State, 43 Ala.App. 178,184 So.2d 847 (1966); Inman v. State, 39 Ala. App. 496, 104 So.2d 448 (1958); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931).

Where the issue presented by the plea is a question of law only, however, there is no need to submit that issue to a jury. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Cr.App.1980); Billups v. City of Birmingham, 367 So.2d 518 (Ala.Cr.App.1978), writ quashed, 367 So.2d 524 (Ala.1979). The determination of this issue is within the province of the trial judge. In other areas involving questions of law, such as evidentiary matters, trial judges may rule without a hearing. Therefore, where a plea of former jeopardy presents on its face only questions of law, a hearing is not required.

Appellant’s motion affirmatively stated: (1) that appellant had previously been convicted of trafficking, which conviction was based on the same circumstances as those underlying the present charge and (2) that a mistrial had been declared in an earlier trial of the present charge. Attached to appellant’s motion as Exhibit B was a certified copy of the order pronouncing sentence on appellant’s conviction for trafficking in marijuana. Also attached to the motion as Exhibit A was a certified copy of a portion of the case action summary showing that a mistrial was declared in an earlier trial of the charge in this case because the jury, after hearing the evidence and oral charge, was hopelessly deadlocked.

Appellant’s motion therefore presented on its face only two questions: (1) whether a conviction for trafficking in marijuana will bar a subsequent prosecution for possession of methaqualone when both charges arose from the same circumstances and (2) whether a mistrial because of a hopelessly deadlocked jury will bar a subsequent prosecution for the same offense. These were questions of law which could be decided by the trial judge without a hearing. Because both questions were due to be decided adversely to appellant, the trial court properly denied appellant’s motion.

It is well established that:

“[A] plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and on fact as the former one relied on under the plea, and this is true even if both cases are founded on the same facts, but the crimes charged were not the same in law.” Daniels v. State, 375 So.2d 523, (Ala.Cr. App.1979), and cases cited therein.

Crimes are not the same in law if an additional fact must be proved in one trial which is not required in the other trial, even though it may be necessary to prove the same acts in both. Hattaway v. United States, 399 F.2d 431 (5th Cir.1968). Trafficking in marijuana is not the same offense as possession of methaqualone. ' Not only are the controlled substances in each charge different, therefore requiring different proof, Green v. State, 389 So.2d 537, 539 (Ala.Cr.App.1980), cert. denied, 389 So.2d 541 (Ala.1980), but proof of trafficking is clearly different from that required for mere possession.

Moreover, a mistrial due to the failure of a jury to agree on a verdict will not support a plea of former jeopardy. Clements v. State, 390 So.2d 1131 (Ala.Cr.App.1980), cert. denied, 390 So.2d 1136 (Ala.1980); Parker v. State, 51 Ala.App. 362, 285 So.2d 526 (1973); See § 12-16-233, Code of Alabama 1975.

Further:

“Where the evidence introduced shows without contradiction that the plea could not avail even had the issues been submitted to the jury, a defendant is not prejudiced in his substantial rights by the action of a court in- denying such plea without submitting it to a jury.” Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958).

As we have demonstrated, appellant’s motion would have availed her nothing had there been a hearing. Therefore, appellant’s rights were not prejudiced requiring reversal. Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1941).

Additionally, appellant made no objection to proceeding without a hearing on the motion. Her complaint that she was not afforded a hearing, being made for the first time on appeal, comes too late. Cf. Slatton v. State, 49 Ala.App. 377, 272 So.2d 586 (1973) (where defendant who filed a plea of former jeopardy which was not tried to a jury failed to object at trial, his complaint on appeal was too late.)

For the reasons stated, the judgment of the Tallapoosa Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte: Brenda Diane STORY. (Re: Brenda Diane Story, alias v. State of Alabama)
    82-357.
    Supreme Court of Alabama.
    June 3, 1983.
    Rehearing Denied July 8, 1983.

      William T. Denson, Goodwater, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

The appellant was convicted of possessing methaqualone in violation of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama 1975. She was convicted and sentenced to four years in prison. The Court of Criminal Appeals affirmed, Story v. State, 435 So.2d 1360 (Ala.Cr.App.1982), an application for rehearing was denied, and we granted certiorari.

The appellant was the only other passenger in an automobile owned and operated by Michael Walls when the car was stopped during the early morning hours of August 2, 1980, by police, who had observed Walls driving erratically. After arresting Walls for a traffic offense, one of the officers placed him in the police car to take him to Dadeville to administer a PEI test in order to ascertain his blood alcohol content. A second officer drove the appellant, Brenda Story, to Dadeville in Walls’s car. When they arrived at the courthouse the appellant, who was carrying a lady’s handbag, went inside to wait while the PEI test was administered to Walls.

When he got into Walls’s car, the officer had noticed a pistol on the floorboard in front of the driver’s side of the front seat and a shotgun in the back floorboard. After he went to pick up a third officer to administer the PEI test, the officer returned to Walls’s car to remove the firearms. While leaning over to pick up the pistol he discovered a bag, described as a cosmetic bag or a man’s shaving kit (referred to at trial and herein as State’s Exhibit 1), containing the methaqualone. The officer testified that when he found the bag it was protruding from under the passenger’s side of the front seat. When Walls and Story were questioned by the police both denied any knowledge of the bag.

The appellant had met Walls earlier that evening. Story’s cousin, who had introduced her to Walls, testified that he had never seen State’s Exhibit 1 before. Another witness said that when he saw the appellant earlier that night she had a bag “something like” State’s Exhibit 1, but that he could not be sure because there had not been enough light to see the bag clearly.

We granted certiorari to determine whether the holding in this case was in conflict with prior cases holding that the mere presence of a defendant in an automobile containing contraband is not sufficient in and of itself to support a conviction for possession of a controlled substance. Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971); Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970). The State must introduce additional evidence from which the defendant’s unlawful possession of the contraband could be inferred in order to support a conviction. See 57 A.L.R.3d 1319. Knowledge of the presence of the controlled substance by the defendant must also be established beyond a reasonable doubt. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978).

The Court of Criminal Appeals relied on the testimony of Ronnie Thomas, the witness who had seen the appellant with some sort of a bag in her hand earlier in the evening, to supply the necessary additional evidence. We note, however, that Thomas testified that he could not be sure whether the bag he saw in Story’s hand was State’s Exhibit 1 because the light was too poor. We deem that testimony insufficient to link her to State’s Exhibit 1, especially since the policeman testified that she had a purse or lady’s handbag with her when she got out of the car to go into the courthouse later that evening.

Appellant was a passenger in an automobile which she was not driving and did not own. It was night when she first met the driver and when she got into the car. The bag containing the contraband was found on the floorboard under her seat. Without more evidence linking her to the contraband, there is at least a reasonable doubt whether she had knowledge of the drugs.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: HUBERT TAYLOR, Judge.

text:
    Brenda Diane STORY, alias v. STATE.
    5 Div. 659.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
   AFTER REMANDMENT

HUBERT TAYLOR, Judge.

Reversed and remanded on authority of the Supreme Court of Alabama, Ex parte Story, 435 So.2d 1365 (Ala.1983).

REVERSED AND REMANDED.

All the Judges concur.


author: TYSON, Judge.

text:
    Mitchell Hanna WHITE v. STATE of Alabama.
    1 Div. 523.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Certiorari Denied July 22, 1983 Alabama Supreme Court 82-853.

      Arthur P. Clarke, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

On May 3, 1983, 434 So.2d 877, this court unanimously, without opinion, affirmed this case. Because of the earnest nature of appellant’s application and motion on file with this court, this opinion follows.

Mitchell (Mickey) Hanna White was indicted for the murder of Oscar Holcombe “by stabbing him with a knife” in violation of § 13A-6-2, Code of Alabama.

The Honorable Arthur Clarke was appointed to represent the appellant and at arraignment entered a not guilty plea and filed an extensive motion to produce. This motion was handled by agreement with the district attorney’s office and the cause thereafter proceeded to trial.

The jury found the appellant “guilty of murder as charged” and following a sentencing investigation, at which two prior felonies were placed in evidence, the appellant was sentenced to life imprisonment.

At trial, Ralph Kirk Engelberger, told of driving to the home of Oscar Holcombe on the afternoon of July 2, 1981, to borrow a lawn mower. He stated he had a friend of his ride over with him. He knocked on the door, but noticed that the back door was open, and upon not getting a response, he opened same. He stated he called for Hol-combe and noticed a musty odor about the house and he and his companion went in. They noticed that the phone was unplugged and upon walking back into the bedroom, found the body of Oscar Holcombe. He then telephoned police. He stated on cross-examination that he did not see any marijuana in the house.

Officer Larry Hearne testified that in response to a dispatch, he went to 1203 Middle Ring Road at about 12:30 p.m. on July 2, 1981. Upon entering the home, he found the body of a white male, who had been lying face down in a pool of blood, with a number of what appeared to be stab wounds. He stated that he found a set of scales and some bags of white powdery material and upon later search of the home, some marijuana was found.

Detective Sergeant Wilbur Williams testified that he went to the home of Oscar Holcombe, the victim, about 12:45 in the afternoon of July 2, 1981, and there conducted an investigation of a homicide. He took a number of photographs, including those of an automobile in which he found some marijuana and identified a single piece of paper from a desk pad, dated June 30, 1981, with the name “Mickey” and a telephone number. Later investigation determined that the telephone was listed to one Larry B. Wilson who lived at 118 Glen-wood Street, Mobile, Alabama, but in fact, the phone number belonged to one Johnny Chestang. He also described human blood which was found on the wall and on a towel and further identified a towel which was later found in a dumpster just outside a 7-11 store in Chickasaw on July 2, 1981, at the intersection of Thompson - Boulevard and Iroquois Street. He testified that he found a total of 5145.1 grams or 11.34 pounds of green plant material in the car and home, which were later determined to be marijuana.

The stepmother of the victim, Emma Hol-combe, stated that she last talked with her stepson on the evening of June 30, 1981, between 6:15 and 7:15 by telephone.

John Boyd, a 25 year old white laborer, testified that along with a friend named Kenny Biggs, he drove to the home of Oscar Holcombe on the night of June 30, 1981, where each purchased ¼ pound of marijuana and paid Holcombe $165 each. He stated that this was about 6:30 that evening and that they noticed a small gray, four door car, either Datsun or Toyota, in front of the house with two men inside. He stated that after paying Holcombe for the marijuana, they left.

Richard Harbin, who lived at 206 Autumn Drive, Saraland, Alabama, testified that he knew the appellant, Mitchell “Mickey” Hanna White, and stated that on the morning of June 30, 1981, White requested him to give him a ride to see a friend in Chickasaw. He stated that he had a 1972 Datsun, gray, and that they drove out by the house of a man that White stated he could purchase some marijuana from. He later took White by White’s mother’s house. He stated that they went back by the house past Chickasaw toward Saraland and parked. They saw a maroon colored car with two men go in the house. He stated that after the two men left, White got out, saying that he wanted to get something from the man inside. He stated that when the appellant returned, he was carrying a garbage bag and holding his arm and had something wrapped around it which looked like a towel. White said that there was some marijuana in it. He stated that at that time he did not notice a cut or injury, but that later White asked him to take him back by his mother’s and he said that he had cut his hand and arm on a shovel and wanted something to put on it. He stated that he went in his mother’s house and came out wearing the same clothes, but had bandaged his arm and that White got him to take him by the Suburban Hospital where he was treated for a deep cut on his arm. He stated that later the two of them went and had some drinks.

On cross-examination, he said that he did not notice any blood on the appellant when he came out of the residence where he bought the marijuana at first. Upon being shown a towel on cross-examination, he said that it looked like the towel that he had seen in the appellant’s possession when leaving the house.

Dr. Leroy Riddick, coroner for Mobile County, stated he performed an autopsy on the body of Oscar Holcombe on July 2,1981. He said that the body was partially decomposed and that he estimated the man had been dead for 30 to 36 hours. He stated that there was more than 10% alcohol in the blood and also traces of Methaqualone. He stated that he found eight or nine serious stab wounds on the body and the cause of death was due to multiple stab wounds to the neck, chest and flank. He examined a “butcher knife” and said that the knife wounds on the body would be consistent with the use of such a knife.

Wayne Keith Plaisance testified that he was shown a piece of paper from the desk calendar with a name and phone number on it by Sergeant Williams on July 7,1981, and stated that he wrote the name “Mickey” and a phone number on same, 479-3935, before Oscar Holcombe died. He stated that he wrote this on June 30, 1981.

Cindy Saint Laurent testified that appellant, Mitchell Hanna White, telephoned her July 1, 1981, stating that he wanted to talk to her ex-fiance, Donald. She stated that she picked him up at his mother’s home in Chickasaw and took him by Eckerds Drug Store to get a prescription and then by his cousin’s house. She stated that they stopped by a Jill’s Lunchbox in Saraland, and then he asked her to stop near a 7-11 on Iroquois Street, and she saw him walk behind the 7-11 and throw some items from a brown paper bag into a Dempsey dumpster. When he returned to the car, the bag* and its contents were not with him. She also noticed him open a newspaper and turn immediately to the page where write-ups of criminal cases were and made the comment, laughingly, “Well, must not be a whole lot going on.”

James Robert Reeves, Jr., testified that he was an employee of the 7-11 store in Chickasaw and went to put out some trash in a dumpster and on looking inside he saw some boxes and on top of the boxes was what appeared to be credit cards lying in a stack. He thought maybe someone had stolen another person’s wallet. He said he climbed inside and picked up a driver’s license and several credit cards belonging to an Oscar Holcombe. He stated that he also found an old butcher knife which was lying in some water. The knife had a wooden handle. He also found a towel that appeared to have blood stains. He stated that he turned these over to police.

John Wayne Boone testified that he made an arrest of appellant in Pensacola, Florida, and before doing so, read him his Miranda rights and later, on July 14, brought him back to Mobile to police headquarters. He stated that he read the appellant his Miranda rights as they drove to Mobile and a third time upon arrival at Mobile Police Headquarters.

Sergeant Wilbur Williams testified that he was present when Officer Boone on two occasions read the appellant his Miranda rights and at no time did either of them threaten, intimidate, coerce, or offer any inducements to the appellant to obtain a statement.

At police headquarters in Mobile, the appellant made the following statement:

“A Mr. White related to us during this time that he ... the fact that he had been to Oscar’s house twice on the during the day of June 30,1981, and that the last time that he went there in the company of Rick Harbin, that he did, in fact, go into the home of Oscar Hol-combe, and that he did, in fact, go there for the purpose of trying to get Oscar to, in narcotics trade terms, front him some marijuana.
“Q All right, to lay folks, what does it mean when you front marijuana?
“A What it means is, that if you have someone that sells or distributes marijuana, and you don’t have enough money to buy it, you go to him and ask him to loan it to you, or front it to you, and then as you sell it, then you repay the person that you got it from. So it is kind of like a consignment thing, where he took the marijuana and sold it, and then paid the person back the money for the marijuana.
“Q Did he say why he went for the purpose of having the marijuana fronted, as opposed to paying for it?
“A He said that he had been in jail for several months on some unrelated charges, charges that were brought by a female companion of his, that he was broke, he didn’t have any money, and that he owed his lawyer a lot of money, and that he was going to try to get some ... the marijuana from Mr. Holcombe to sell to pay his lawyer off and to get some spending money.
“Q With reference to the specific issue of money, now you testified earlier extensively about the crime scene investigation. Was there any money discovered in that house, meaning Oscar Holcombe’s house?
“A I remained in Oscar Holcombe’s house for approximately two days after the murder. Approximately 14 hours spent in the home, and I found six dollars in the right front pocket of Oscar Hol-combe’s britches that he had on, and there was a jug on his dresser in the No. 1 bedroom of assorted change that one might put in there in the evening when _ he comes home from work, and there was not another dime found in that house.
“Q All that was found was six dollars and some change?
“A Yes, sir, that’s correct.” (R. 123— 124).

Sergeant Williams also testified that he recovered the credit cards, knife and towel from the 7-11 in Chickasaw, and turned them over to the toxicologist’s office for examination. He said that the knife had been lying in water, but that the stains on the towel were determined to be human blood of the same type of the victim, Oscar Holcombe.

At this point, the appellant made a motion to exclude the State’s evidence for lack of a prima facie case and this was overruled. Appellant did not present any evidence at trial and made no exception to the trial court’s oral charge.

I

The appellant presented some 24 written requested charges, six of which were given by the trial judge. The balance of these charges were either covered in the oral charge of the court or the given charges. Section 12-16-13, Code of Alabama 1975.

II

Appellant’s counsel objected at trial to some of the photographs of the crime scene and of the victim on the basis of being too inflammatory and containing blood. These were properly admitted as evidence. Brodka v. State, 53 Ala.App. 125, 298 So.2d 55 (1973) and cases cited therein.

III

On appeal, appellant’s counsel mentions an amendment of the indictment, over objection in open court, referring to record pages 3 and 4.

This objection, however, does not appear in this record. Record pages 3 and 4 are the arraignment and setting of bond pending trial, and from the trial transcript, record pages 3 and 4 contain the index of this trial. Thus any issue with reference the indictment is not present in this record. Moreover, the indictment is in Code form and properly charges murder. Thus, no error appears.

This record is free of error. The application for rehearing is hereby overruled and this case is affirmed.

APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

All the Judges concur.