text:
    R.J. BATES v. STATE.
    6 Div. 159.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied March 20, 1984.
    William N. Clark and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

The appellant, R.J. Bates, in this case was accused of procuring other people to commit a burglary, robbery, and murder. He was convicted by a Walker County jury and sentenced to life imprisonment. The single issue raised on appeal by counsel is whether the trial court erred in overruling appellant’s motion to exclude state’s evidence; appellant contends that the court did so err because of an alleged lack of corroborative testimony of accomplices McCullars and Culpepper.

The state’s evidence tended to show that the appellant procured Steve “Red” McCul-lars to perform the robbery of Mr. Crump, a Jasper car dealer who, appellant believed, had stored a large quantity of money in a homemade safe in his home. McCullars testified that appellant and McCullars drove from appellant’s service station in Jefferson County, up to Jasper together with a Mr. Farley and cruised by Mr. Crump’s residence two or three times. Appellant pointed out to the others that Crump lived on a dead end road and warned them not to speed when they returned to his service station after they committed the crime. Various people were discussed as potential participants in the actual robbery. Eventually, appellant got McCullars to pick up two women, Doris Long, a Birmingham prostitute and her 17-year-old roommate, Lori Culpepper. Appellant instructed the two girls that they were to tie up the victim, Mr. Crump, with a roll of silver duct tape. Appellant gave the silver duct tape and a loaded pistol to McCullars. The appellant then used his VISA card to rent a vehicle for use in the crime. Upon arriving at the Crump home, Doris and Lori knocked on the door and Mr. Crump answered. The three had a conversation, and the women entered. One of them was using the phone when McCul-lars knocked on the unlocked door, came into the house and pointed a gun at Mr. Crump. McCullars and Doris led Crump to the back bedroom while Lori stood watch. They taped Crump’s mouth, his ankles, his wrists and hands, and his legs. They then attempted to pry open the safe, using the barrel of a rifle as a pry-bar. Doris went back into the bedroom to check on Crump, she said, only to discover that he was dead.

The three then appeared to have panicked and left the house. When they got back to appellant’s service station, the following exchange occurred:

Appellant: “Did you get the money?”
McCullars: “No, the man died.”
Appellant: “You’re serious.”
McCullars: “Yes, I’m serious. I think the man died,”
Appellant: “You didn’t get the money?”
McCullars: “No, sir.”
Appellant: “Well, you can go back.”
McCullars: “No, no way I’m going back.”
Appellant: “I have some bolt cutters, you can cut the bolts off that thing.”
McCullars: “No, sir, I don’t want to go back. No way. No way at all.”

McCullars gave appellant’s pistol back to him, and the two females eventually left in their Volkswagen, but appellant said, “We’re going to have to put these two girls in the creek.” McCullars replied, “You might do it, but not me. I’m through with it. I’m going home.”

Investigators summoned by the deceased’s daughter who found him, found a .22 rifle and a single-barreled shotgun both with bent barrels, apparently used in attempting to break into the homemade steel safe.

Dr. Joseph Embry of the Department of Forensic Pathology performed an autopsy on the body the following morning. The body showed no obvious cause of death, but because it was found in a situation suggesting foul play, Dr. Embry rendered a diagnosis reached by exclusion: he opined that death was by asphyxia due to the tape gag which was tight around the victim’s mouth.

The car that was rented with appellant’s VISA card and driven by McCullars to the robbery-murder was returned to Budget Rent-A-Car. The appellant went to the rental office and paid the $1145.31 bill in cash. The odometer showed that it had been driven 352 miles.

When appellant was arrested, he had a .38 automatic pistol concealed at the small of his back. The pistol was identified by McCullars, who “turned state’s evidence,” as being the same pistol that appellant had provided him to use in the robbery-murder.

Miss Sherry Smith, another state’s witness testified that she and appellant had a relationship for two years, ending when she was about 19. A month before the incident in this case, appellant told Miss Smith that he wanted her to go to Jasper and to Mr. Crump’s house and knock on the door. He told the girl that Mr. Crump had thousands of dollars in his safe. A black man went to Jasper with Miss Smith and McCullars on this occasion. They saw a strange vehicle near Crump’s home, can-celled the plan, and returned to appellant’s service station. She testified that she had seen appellant only twice since that evening. One of the times was at a hot dog restaurant in Birmingham, where he asked her if anyone had mentioned “that Jasper thing” to which she replied she heard that a 17-year-old girl had turned state’s witness.

Two accomplices who testified were Steve “Red” McCullars and Lori Culpep-per. Miss Culpepper testified that her job in the robbery was to keep watch from the living room window while McCullars and Doris Long dealt with Mr. Crump. She said that after some period of time, both Doris Long and Red McCullars came back into the living room and it was then that Doris said she thought that Crump was dead. She also testified that appellant was very angry when they reported to him that they did not get the money.

Sandra McCullars, the wife of Red McCullars, testified about several conversations over the telephone and in person with appellant Bates after her husband was arrested. She said she recognized appellant’s voice and asked if he was going to help her husband. He told her that he had to help him because if McCullars was connected to the murder case, he would be also. He further told Mrs. McCullars to tell her husband to keep his mouth shut and just sit tight. Bates had asked Mrs. McCullars to come to his service station, which she did. He told her not to worry about the rental car, since the speedometer had been disconnected and it could not be proved that the car had been driven from Birmingham to Jasper and back. He said that Lori Culpepper and Doris Long were getting their stories mixed up. He told her that he had told McCullars that they should have put the girls in a sack and dumped them in the nearest creek. He also stated to her that he talked with his lawyer and that she and her husband needed to get an alibi for the 5th through the 10th of the month to indicate that they were elsewhere at the time of the crime. He stated that he had four witnesses he could get who would testify that they had been doing some work at his service station. Appellant eventually contributed $2500 for attorney’s fees for McCullars.

Appellant contends that there was a lack of corroboration of the testimony of accomplices Steve “Red” McCullars and Lori Cul-pepper necessary to support appellant’s conviction and to comply with § 12-21-222, Code of Alabama 1975. The test of whether corroboration exists was explained by this court in Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977), as follows:

“The process of analyzing the evidence to determine if there has been sufficient corroboration of an accomplice (or accomplices) is one of subtraction. That is, the trial court, on proper motion, as a matter of law is required to take away the evidence of the accompliee(s) and determine whether the rest of the testimony is sufficient to tend to connect the defendant with the commission of the offense.”

The testimony of Sherry Smith and Sandra McCullars strongly connect appellant with the commission of the offense, and seems to us to amply establish the necessary corroboration.

Appellant contends that Miss Smith’s testimony should not be considered because she too was an accomplice. The evidence tends to show that she drove by the scene of the robbery-murder approximately one month before the commission of the crime at the instruction of appellant. The test to determine whether a witness is an accomplice is this: Could the witness have been indicted and convicted of the offense in question, either as a principal or as an accessory? White v. State, 352 So.2d 29 (Ala.Cr.App.1977). We consider that Miss Smith was not an accomplice within this meaning and for the purposes of § 12-21-222.

Appellant also contends that the testimony of Mrs. McCullars should not be considered as corroborative because he urges, as wife of an accomplice, she is, by definition, also an accomplice. The rule is adverse to appellant. C. Gamble, McElroy’s Alabama Evidence § 300.01(7) (3d ed. 1977).

The court of appeals held in Crumbly v. State, 26 Ala.App. 24, 152 So. 55 (1933), cert. denied, 228 Ala. 45, 152 So. 57 (1934), that the defendant’s request of an accomplice’s father to tell his incarcerated son “to keep quiet, that we will get him out,” was “of itself some evidence tending to prove the consciousness of guilt, and tended to connect the defendant with the commission of the crimel” See also, Hargett v. State, 18 Ala.App. 616, 93 So. 207 (1922). Mrs. McCullars’s testimony that the appellant instructed her to invent an alibi for herself and her husband and that appellant told her that he had witnesses who would say they were working at the service station tends to prove appellant had guilty knowledge of the crime. See Cline v. State, 25 Ala.App. 433, 148 So. 172 (1933).

Mrs. McCullars’s testimony about what the appellant told her constituted corroboration as did the contribution of the $2500 to McCullars’s defense. Appellant’s comments to Mrs. McCullars manifested appellant’s continued interest in concealing his participation in the crime and his consciousness of guilt. Sufficient corroboration of accomplices’ testimony may be furnished by tacit admission by the accused, by the suspicious conduct of the accused, and by the association of the accused with the accomplice. See Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978); Mathis v. State, 414 So.2d 151 (Ala.Cr.App.1982).

In the leading case of Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979), this court, speaking through Judge Bowen, stated as follows:

“The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. ‘Corroborate means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminating force of his testimony.’ Malachi v. State, 89 Ala. 134, 140-141, 8 So. 104, 106 (1889); Smith v. State, 230 Ala. 413, 416, 161 So. 538 (1935); Brown v. State, 31 Ala.App. 529, 19 So.2d 88 (1944). The corroborative evidence need not be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974); Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941). Corroborative evidence need not directly connect the accused with the offense but need only tend to do so. State v. Canada, 107 Ariz. 66, 481 P.2d 859, cert. denied, 404 U.S. 848, 92 S.Ct. 154, 30 L.Ed.2d 87 (1971). See Pearce v. State, 26 Ala.App. 492, 495, 164 So. 114, cert. denied, 231 Ala. 150, 164 So. 118 (1935) (‘[B]ut, as we read the eases, the corroboratory evidence, if it meets the test of “tending to connect the defendant with the commission of the offense”, need not be, in and of itself alone, that tending in any wise to fasten guilt upon the defendant’); 23 C.J.S. Criminal Law § 812(3) (1961). The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime. Lowe v. State, 32 Ala.App. [176], 178, 22 So.2d 618 (1945).”

We conclude that the appellant’s conviction is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte R.J. BATES. (Re R.J. Bates v. State).
    83-666.
    Supreme Court of Alabama.
    Nov. 30, 1984.
    William N. Clark and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for petitioner.

      Charles A. Graddick, Atty. Gen. and Patricia E. Guthrie, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

This Court granted certiorari to determine whether the Court of Criminal Appeals, 461 So.2d 1 (1983) was correct in holding that a certain witness for the prosecution in this case was not an accomplice.

The defendant, R.J. Bates, was convicted of felony-murder in violation of Code of 1975, § 13A-6-2(a)(3). The evidence, as summarized in the opinion of the Court of Criminal Appeals, indicates that Bates, believing Jasper car dealer Claud Crump kept a large sum of money at his home, planned the robbery of Crump. Bates recruited Steve McCullars, Doris Long, and Lori Cul-pepper to commit the robbery, instructed them on how to commit the robbery, and provided them with a loaded pistol, a rental car, and duct tape to be used in tying up Crump. The would-be robbers were unable to open Crump’s homemade safe. While they were in Crump’s house, however, Crump died of asphyxiation due to the fact that a tape gag had been tightly placed over his mouth.

McCullars and Culpepper testified against Bates at trial. The Court of Criminal Appeals found that their testimony, as accomplices, was sufficiently corroborated by the testimony of McCullars’s wife Sandra and one Sherry Smith. Bates contends that Ms. Smith’s testimony could not be used as corroboration under § 12-21-222, Code of 1975, because she, too, was an accomplice.

Section 12-21-222 provides that one cannot be convicted of a felony on the uncorroborated testimony of an accomplice. For the corroboration requirement of this section to apply, however, “it must clearly appear that the witness in question is an accomplice. Ross v. State, 74 Ala. 532 (1883); Lowery v. State, 38 Ala.App. 505, 88 So.2d 854 (1956).” Perry v. State, 368 So.2d 305, 309 (Ala.Crim.App.1978), reversed on other grounds, 368 So.2d 310 (Ala.1979). The defendant who alleges that a witness is an accomplice has the burden of so proving, unless the evidence presented by the prosecution shows without dispute that the witness is an accomplice. Jacks v. State, 364 So.2d 397, 403 (Ala.Crim.App.), cert. denied, 364 So.2d 406 (Ala.1978).

Ms. Smith’s testimony was summarized as follows by the Court of Criminal Appeals:

“Miss Sherry Smith, another state’s witness, testified that she and appellant had a relationship for two years, ending when she was about 19. A month before the incident in this case, appellant told Miss Smith that he wanted her to go to Jasper and to Mr. Crump’s house and knock on the door. He told the girl that Mr. Crump had thousands of dollars in his safe. A black man went to Jasper with Miss Smith and McCullars on this occasion. They saw a strange vehicle near Crump’s home, cancelled the plan, and returned to appellant’s service station. She testified that she had seen appellant only twice since that evening. One of the times was at a hot dog restaurant in Birmingham, where he asked her if anyone had mentioned ‘that Jasper thing,’ to which she replied she heard that a 17-year-old girl had turned state’s witness.”

Bate’s Rule 39(k), A.R.A.P., motion did not present for our consideration any additional facts concerning Ms. Smith or her testimony. Consequently, our review is limited to the facts as recounted by the Court of Criminal Appeals. Rule 39(k).

It has often been stated that “[t]he test for determining whether a witness is an accomplice is whether he or she could have been indicted and convicted for the offense charged, either as principal or accessory.” Dial v. State, 387 So.2d 879, 881 (Ala.1980) (quoting Russell v. State, 365 So.2d 343 (Ala.Crim.App.1978)); Jacks, supra, 364 So.2d at 401; White v. State, 352 So.2d 29, 31 (Ala.Crim.App.1977). Bates was charged with felony-murder under § 13A-6-2(a)(3). Intent to commit the underlying felony is a requisite element of this offense. As stated in 2 C. Torcía, Wharton’s Criminal Law, § 145 at 204 (14th ed. 1979):

“In the typical case of felony-murder, there is no malice in ‘fact’, express or implied; the malice is implied by the ‘law’. What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.” (Emphasis added.)

In Jacks, supra, 364 So.2d at 402, we find the following language:

“[W]hen intent is one of the required constituent elements [of a crime], the co-conspirator, or accomplice, to authorize his conviction, must himself have entertained the intent, or must have known that the actor, whom he was encouraging, aiding, or abetting, entertained it. Without this individual intent, or personal knowledge, it can not be affirmed that he aided or abetted in the crime charged....” (Quoting Tanner v. State, 92 Ala. 1, 7, 9 So. 613, 615 (1890).)

Applying these principles, we find as a matter of law that Ms. Smith was not an accomplice. In order for her to be indicted and convicted of felony-murder, it must be clearly shown that she had the requisite intent to commit the underlying robbery or that she knew Bates intended to commit the robbery.

Robbery in any degree requires both the intent to deprive the victim of his property and the intent to overcome the victim’s resistance or compel his acquiescence through the use or the threat of the use of force. See Code of 1975, §§ 13A-8-2, -41, -42, -43. The existence of this intent on the part of Smith simply cannot be deduced from the facts before this Court. These facts show only that she was in the vicinity of Crump’s house a month before the instant crime occurred. The mere fact that a witness was present at the scene of a crime does not, in and of itself, make the witness an accomplice. Robinson v. State, 428 So.2d 167, 171 (Ala.Crim.App.1982); Jacks, supra.

Nor does it appear from the facts that Smith knew of the intended robbery. While the facts that Bates directed Smith to knock on Crump’s door and also told her that Crump kept thousands of dollars in his safe might raise some suspicion that she knew what was afoot, in the absence of other evidence, Smith could not be convicted of felony-murder. Cf. White v. State, 352 So.2d 29 (Ala.Crim.App.1977) (witness who testified that “we were trying to find someone to rob,” but stated that he parted company with his cohorts before the robbery actually took place could not, absent other evidence, be convicted of robbery).

This Court having found that Smith was not an accomplice, whose testimony would require corroboration, it follows that her testimony could properly be used to corroborate the testimony of accomplices McCullars and Culpepper. We agree with the Court of Criminal Appeals that the testimony of accomplices McCul-lars and Culpepper was adequately corroborated by the testimony of Sherry Smith and Sandra McCullars.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.


author: HUBERT TAYLOR, Judge.

text:
    Jimmy LEWIS, alias v. STATE.
    4 Div. 165.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Phyllis J. Logsdon, Dothan, for appellant.
    Charles A. Graddiek, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Jimmy Lewis, was found guilty of rape, first degree. Sentence was imprisonment for life. The only issue presented on this appeal is whether the State proved the element of venue.

The victim, Tamecia McCray, was taken by Lewis from a field to a store located in Houston County. The county line was approximately one and one-half miles from the store. McCray and Lewis left the store in an automobile and, according to testimony, went to some “bushes” where the despicable offense was committed. The record is unclear as to where the bushes were located.

It is, of course, the law of this State that the State must prove venue, although this element can be established by circumstantial evidence. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969); Allen v. State, 374 So.2d 447 (Ala.Cr.App.1979).

Section 15-2-7, Code of Alabama 1975, provides venue may be established in either county provided an offense is committed on a boundary of two or more counties or within one-quarter of a mile thereof, or committed so near the boundary of two counties as to render it doubtful in which the offense was committed.

We cannot determine from the record where the offense was committed. Since the boundary line of the adjoining county was so close, it is possible that the parties drove into the adjoining county some distance from the boundary line. The record is silent as to how much time elapsed between the time the parties left the store and when the offense was committed.

The State having failed to offer any evidence as to the material element of venue, it is the opinion of this court that this judgment be reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte State of Alabama. (Re Jimmy LEWIS, alias v. STATE of Alabama).
    83-649.
    Supreme Court of Alabama.
    Sept. 21, 1984.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for petitioner.
    Phyllis J. Logsdon, Dothan, for respondent.
   MADDOX, Justice.

Appellant Jimmy Lewis was found guilty of first degree rape and was sentenced to life imprisonment. The Court of Criminal Appeals, 461 So.2d 8, reversed. The state presents two issues on its petition for certiorari. The first issue is whether the defendant waived his objection to venue. The second issue is whether there was sufficient circumstantial evidence from which the jury could infer proper venue. The Court of Criminal Appeals held that the State failed to offer any evidence as to the material element of venue and reversed the conviction and sentence. We affirm the Court of Criminal Appeals’ holding that the defendant did not waive his objection to venue, but we reverse the cause and remand it to the Court of Criminal Appeals with directions to determine whether the State proved venue by circumstantial evidence.

The essential facts are uncontroverted and are set out in the opinion of the Court of Criminal Appeals. They are as follows:

The victim, Tamecia McCray, was taken by Lewis from a farm field to a store located in Houston County. The county line was approximately one and one-half miles from the store. McCray and Lewis left the store in an automobile and, according to testimony, went to some “bushes,” where the offense was committed. The record is unclear as to where the bushes were located.

After being found guilty of first degree rape and sentenced to life imprisonment, the defendant appealed. In its opinion of January 10, 1984, the Court of Criminal Appeals held that the state did not prove venue. Judge Hubert Taylor wrote the following in the opinion:

“We cannot determine from the record where the offense was committed. Since the boundary line of the adjoining county was so close, it is possible that the parties drove into the adjoining county some distance from the boundary line. The record is silent as to how much time elapsed between the time the parties left the store and when the offense was committed.”

Upon petition to this Court, the state requested, pursuant to Rule 39(k), Ala.R. App.P., that we consider the following additional fact:

“[Defendant] and the victim were gone approximately fifteen minutes from the time defendant left the farm with the victim [and the time they returned to the farm.]”

This testimony was from the victim’s father.

The first issue pertains to whether the defendant waived his objection to venue by failing to raise the issue in a pre-trial motion. The state contends that under Temporary Rule 16.2, Ala.R.Crim.P., certain objections may be raised only by pretrial motion made in accordance with Temporary Rule 16.3, Ala.R.Crim.P. The state points out that the comment to Rule 16.2, Ala.R.Crim.P., states that objections to venue must be raised by a motion before trial. Section (c) of Rule 16.2 states that a failure to present any objection as required under the rules constitutes a waiver. We do not agree, however, that there was a waiver in this case.

The waiver principle would be applicable if, for example, the question was whether the trial of the case should be moved to another jurisdiction because of excessive pre-trial publicity. Here, however, venue was a question at issue. The following comment to Temporary Rule 16.4, Ala.R. Crim.P., addresses the situation presented here:

“Temporary Rule 16.4 requires that the pre-trial motion be determined by the court before trial unless deferred for good cause until the trial. Where the motion raises an issue better determined during the trial, it would be proper to defer the motion. For example, the question of venue may be ‘[one of] fact so entwined with the merits ... that a decision should not be made prior to trial but postponed until trial.’ United States v. Callahan, 300 F.Supp. 519 (S.D.N.Y.1959). In the Callahan case the defendants were charged with a conspiracy, and venue was allegedly based on the planning having been done in the county of trial. In order to prove venue, the planning of the crime would have to be shown.”

Based on the foregoing, we hold that the defendant did not waive objection to venue.

The second issue concerns the sufficiency of the evidence from which the jury determined the existence of venue. The defendant contends that there was no evidence as to the location of the incident from anyone with personal knowledge, and that there was no evidence describing a location with sufficient particularities to make it distinguishable from any other area, county, or state. The defendant correctly acknowledges that venue can be established by circumstantial evidence. He further contends that a conviction based on circumstantial evidence will be upheld only if the evidence is so strong and so cogent that it establishes the defendant’s guilt to a moral certainty. Ladd v. State, 363 So.2d 1017 (Ala.Crim.App.1978), at 1019. In addition, the defendant argues:

“For circumstantial evidence to be sufficient to justify a jury in conviction upon it, the circumstances proved must not only be consistent with the hypothesis that the defendant is guilty but inconsistent with every other hypothesis except that of his guilt_ Circumstantial evidence, no matter how strong, which merely arouse a suspicion of guilt will not serve as a basis for conviction.”

Thomas v. State, 363 So.2d 1020, at 1024-2025 (Ala.Crim.App.1978).

We do not necessarily agree with defendant’s argument. Of course, proof of venue is necessary to sustain a conviction, Grace v. State, 369 So.2d 318, 322 (Ala.Crim.App.1979), but venue can be established by circumstantial evidence. Allen v. State, 374 So.2d 447 (Ala.Crim.App.1979).

It is apparent from the opinion that the Court of Criminal Appeals did not consider the testimony that the defendant and the victim were gone approximately fifteen minutes from the time the defendant left the farm with the victim and to the time the victim returned to the farm; therefore, we remand the cause to that court for consideration of these facts on the venue question. The law regarding the establishment of venue by circumstantial evidence is set out in Coleman v. State, 423 So.2d 276 (Ala.Crim.App.1982). In Coleman, a murder case, the decayed remains of the victim were found at the top of a mountain near the Madison County line. Apparently, there was no direct evidence as to where the murder actually occurred. Addressing the issue of whether the state failed to prove venue, the court held:

“In a criminal case, proof of venue is sufficient if it can be reasonably inferred by the jury from the facts and circumstances adduced. Segars v. State, 409 So.2d 1003 (Ala.Cr.App.1982). Venue need not be established solely by direct evidence. Evidence from which it is in-ferrable is sufficient. Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), aff'd, 391 So.2d 677 (Ala.1980); Stokes v. State, 373 So.2d 1211 (Ala.Cr.App.), cert. denied, 373 So.2d 1218 (Ala.1979).
{( * * * *
“As we stated in Stokes, supra at pages 1216-17:
“When the State offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question of venue becomes one for the jury.... Where there is no evidence of venue it is a question for the court; but if there is evidence of venue and it is in conflict, it is a question for the jury. . . . ‘The inferences to be drawn from the evidence, when susceptible of more than one rational conclusion, are for the jury and not for this Court to determine ... A verdict on conflicting evidence is conclusive on appeal...’
(Citations omitted).” (Emphasis added.)

423 So.2d at 279. In Coleman, the court concluded that “although the exact spot where the victim was killed was not shown by direct evidence, the jury could properly conclude that he was killed in Madison County.”

In addition, venue may be established in either county under § 15-2-7, Code of Alabama 1975, which provides:

“When an offense is committed on the boundary of two or more counties or within a quarter of a mile thereof or when it is committed so near the boundary of two counties as to render it doubtful in which the offense was committed, venue is in either county.”

Based on the foregoing, we hold that the cause is due to be remanded to the Court of Criminal Appeals in order to allow that court to determine if there was sufficient circumstantial evidence from which the jury could infer that the parties either did not leave Houston County or that the crime was committed so close to the county line that jurisdiction could be in either county under Code 1975, § 15-2-7.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED WITH INSTRUCTIONS.

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

BEATTY, J., not sitting.

      . “Rule 16.2 Objections and Defenses Which Must be Raised by Motion

      "(a) Objections and Defenses Which Must be Raised by Pre-trial Motion. Objections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an of- , fense, may be raised only by pre-trial motion made in accordance with Temporary Rule 16.3.
      "(b) All Objections and Defenses Included. The pre-trial motion shall include all such objections and defenses then available to the defendant.
      "(c) Waiver. Failure to present any objection or defense as provided in sections (a) and (b) constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver.”

      . "Rule 16.3 Time of Making Motions

      “(a) Pre-trial Motions. Any motion which must under Temporary Rule 16.2 be made before trial must be made:
      "(1) In circuit court at or before arraignment or by such later date as may be set by the court; and
      “(2) In district court or municipal court at the time of or before entering a plea.
      "(b) Extension or Limitation of Time. The court may extend or limit the time of filing such motions for good cause.
      "Added effective March 1, 1983.”

      . "Comment

      "Temporary Rule 16.2 requires that certain objections be made and defenses raised by motion before trial. Objections to the venire or to an individual grand juror or to the venue must be raised by such a motion before trial."


author: PATTERSON, Judge.

text:
    Jimmy LEWIS, alias v. STATE.
    4 Div. 165.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
    Rehearing Denied Dec. 11, 1984.
   PATTERSON, Judge.

This ease is on remand from the Supreme Court of Alabama, 461 So.2d 9, with instructions for this court to determine whether the State proved venue by circumstantial evidence. We answer in the affirmative.

Appellant Jimmy Lewis, alias Paul Stewart, was convicted of first degree rape on March 22, 1983, by a Houston County jury. Appellant was subsequently sentenced to life imprisonment. On the original submission of this cause, we reversed and remanded due to our finding that the State failed to offer any evidence as to the material element of venue. The Alabama Supreme Court granted certiorari and reversed this court’s judgment and remanded with instructions to determine if there was sufficient circumstantial evidence from which the jury could infer proper venue.

Appellant was convicted for the rape of Tamecia McCray, which occurred in September of 1983. Tamecia was five years old on the date of the alleged rape. Appellant was nineteen years old and he is Tame-cia’s uncle, on her father’s side.

On the date in question, Tamecia had been visiting with her father, Charles Stewart, and accompanied him to the peanut field where he was employed at the time. These fields were located in Houston County and belonged to a Mr. Stringfellow. Appellant was also in the fields that day and had volunteered to go to the store for soft drinks. Tamecia asked her father if she could accompany appellant, and permission was granted. The record indicates that appellant and Tamecia first went to McCord’s Bait and Tackle shop, located about one and one-half miles from the fields, in Houston County. Mr. McCord, owner of the bait shop, testified that Tame-cia and appellant had patronized his shop and had been there approximately “five or six, maybe seven minutes” that day.

Tamecia testified that on the way back to the fields appellant stopped the car, both got out; appellant took Tamecia’s clothes off; put her on the hood of the car; then appellant engaged in sexual intercourse with the five-year-old child. Appellant told Tamecia not to say anything to anybody about what had happened. Tamecia and appellant returned to the fields approximately fifteen minutes after they departed and Tamecia testified they took the same route back that they had taken originally.

It was not until mid-October that Tame-cia told her mother what her uncle had done while she had been visiting her father. Mrs. McCray took Tamecia to the hospital; it was determined that her hymen had been ruptured, and tests for Neisseria Gonorrhea proved positive. Subsequent tests done on appellant produced a positive test result for the same type gonorrhea.

Appellant contends that there is no evidence as to the location of the incident from anyone who had any personal knowledge of the facts, nor was there evidence describing a location with sufficient particularities as to make it distinguishable from any other area. It is apparently appellant’s contention that because the locus of the events in question was at or near the Henry County line, venue was not sufficiently established in Houston County.

We have thoroughly reviewed the record and initially note that there is no evidence that the events took place outside of Houston County. Tamecia testified that she and appellant traveled the same road to and from the bait shop. Tamecia, being six years old at the time of trial, was not cognizant of county boundary lines and could not be expected to know where such incorporeal boundaries lay. John McCord testified that the Stringfellow property, upon which the peanut fields were located, was approximately one and one-half miles from his bait shop. He testified that his shop and the peanut fields were both located in Houston County. Mr. McCord also stated on cross-examination that the Henry County line was either a mile and one-half or four miles, depending upon which direction one takes, from his bait shop. Charles Stewart testified that the bait shop and the peanut fields were both located in Houston County and the tendency of the evidence is that the Stringfellow property is located north of the bait shop.

We are told that the county line is either one and one-half or four miles from the bait shop, but we are not told in which direction one must go. We are told that the peanut fields are in Houston County, approximately one and one-half miles north of the bait shop, but we are not told where the county line is located in relation to the peanut fields. On appellant’s motion to exclude the State’s evidence, counsel for appellant stated:

“[T]he county line was a mile away or a mile and a quarter away, the farm was north, McCord’s store was north, the Henry county line is north of the store_ There is no evidence, circumstantial or otherwise to present to the jury. The proximity of Henry County and the store, I mean, it’s so close, there’s just no evidence.”

Evidently all the locations pertinent to this cause are located in the northern part of Houston County near the Henry County line. There is no evidence that any of these locations are outside of Houston County. Appellant apparently contends that the rape could have occurred in Henry County if appellant drove north, past the peanut fields; raped Tamecia; and then drove south, back to the fields.

Charles Stewart testified that appellant and Tamecia were away from the fields approximately fifteen minutes. John McCord testified they were in his bait shop between five and seven minutes. This leaves eight to ten minutes unaccounted for. Appellant had to travel one and one-half miles to the bait shop and the same distance to return, over country roads, and stop at some point and rape Tamecia.

“When the State offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question of venue becomes one for the jury.... The inferences to be drawn from the evidence, when susceptible of more than one rational conclusion, are for the jury and not for this Court to determine.”

Stokes v. State, 373 So.2d 1211, 1216-17 (Ala.Crim.App.), cert. denied, 373 So.2d 1218 (Ala.1979) (citations omitted). Venue need not be proven by direct evidence, but evidence from which venue may be inferred is sufficient. Segars v. State, 409 So.2d 1003 (Ala.Crim.App.1982).

We conclude that there was ample evidence from which a jury could rationally infer that the rape of Tamecia McCray occurred in Houston County. In the entire testimony there is no evidence that any events occurred outside Houston County. Appellant offered no evidence showing that the crime was committed in Henry County. That the crime was committed in a county other than Houston is a bare possibility; that it was committed in Houston County is shown by circumstantial evidence with reasonable certainty. Obviously the exact spot where the rape took place is not shown by direct evidence; the jury could properly conclude from the testimony presented at trial that the rape occurred in Houston County. Harris v. State, 395 So.2d 1063, 1068-69 (Ala.Cr.App.1981), and cases cited therein.

We note that the jury could also find venue based on Alabama statutory law, § 15-2-7, Code of Alabama 1975. This section reads as follows:

“When an offense is committed on the boundary of two or more counties or within a quarter of a mile thereof or when it is committed so near the boundary of two counties as to render it doubtful in which the offense was committed, venue is in either county.” (Emphasis added.)

Assuming that appellant drove past the peanut fields toward the Henry County line, and taking into consideration the time and distance involved, the offense would have been committed “so near the boundary” of the two counties as to render it doubtful as to the county in which the offense was committed. Thus § 15-2-7, supra, would authorize a finding of venue in either county. It seems to us that the emphasized portion of § 15-2-7, supra, was made a part of the venue statute to provide for a finding of venue in close-call situations where the location of the county line is uncertain, or not subject to direct proof.

We have carefully reviewed the record of this cause, as directed by the Alabama Supreme Court, and determine that there was sufficient circumstantial evidence from which the jury could infer that the appellant committed the rape within Houston County or that the crime was committed so close to the county line that jurisdiction could be in either county. This court having previously determined that the appellant did not waive his objection to venue, and having now determined that there was sufficient circumstantial evidence from which the jury could infer that the proper venue was in Houston County, the judgment of the trial court is therefore due to be, and it is hereby, affirmed.

AFFIRMED.

All Judges concur.


author: BOWEN, Presiding Judge.

text:
    George Joseph THOMAS v. STATE.
    3 Div. 819.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 8, 1984.
    Jack W. Wallace, Jr. of Duffey & Wallace, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

George Joseph Thomas was indicted and convicted for receiving stolen property in the second degree. He was sentenced as a habitual offender to fifteen years’ imprisonment. The only issue on appeal concerns the propriety of allowing a police officer to testify over objection that Eddie Watson identified Thomas in a police lineup.

Eddie Watson worked at Max’s Pawn Shop in Montgomery. On January 4, 1983, three individuals pawned two stolen television sets. Watson identified “someone” in a police lineup as being one of those three people. At trial, Watson did not make an in-court identification of Thomas nor did he testify that he identified Thomas in the lineup.

Over the objection of defense counsel, Montgomery Police Officers Steve Eiland and Jeff Grimsley were allowed to testify that Watson identified Thomas in a lineup.

“The general rule is that evidence by a third party of an extrajudicial identification is admissible in rebuttal of testimony tending to impeach or discredit the identifying witness, or to rebut a charge, imputation or inference of falsity.” Aaron v. State, 273 Ala. 337, 345, 139 So.2d 309 (1961). In Seals v. State, 282 Ala. 586, 603, 213 So.2d 645 (1968), our Supreme Court held: “We are of the opinion that the testimony of a third person who heard or observed an extrajudicial identification should not be admitted except under circumstances such as were present in Aaron v. State, 273 Ala. 337, 139 So.2d 309, or under unusual circumstances.” In Seals, the officers’ testimony was erroneously but harmlessly admitted since the identification of the accused by the victim both in court and at the lineup was undisputed.

A law enforcement officer may testify that he observed a witness identify the accused in a lineup. “The fact that a third person observed another identify the defendant is ‘an independent fact to which the witness (officer) ... could testify just as to any other fact.’ Key v. State, 240 Ala. 19, 20, 197 So. 364 (1940).” Abercrombie v. State, 382 So.2d 614, 615 (Ala.Cr.App.), cert. denied, 382 So.2d 616 (Ala.1980). The officers’ testimony constitutes an exception to the hearsay rule. Abercrombie, supra.

However, the officers’ testimony was only admissible under the circumstances described in Seals, 282 Ala. at 603, 213 So.2d 645: to rebut testimony tending to impeach or discredit the identifying witness; to rebut a charge, imputation or inference of falsity; or “under unusual circumstances”. Watson himself could not testify over objection that he identified Thomas in a lineup until he had been impeached or to rebut an inference raised on cross examination that his identification was mistaken or contrived. Carlisle v. State, 371 So.2d 975, 978 (Ala.Cr.App.1979). Although there is some authority to the contrary, “(t)he testimony of the third person has generally been treated as inadmissible as original or substantive evidence as to the identity of the accused as the guilty party.” Annot. 71 A.L.R.2d 449, Section 14, at 486 (1960).

The judgment of the circuit court is reversed and this cause is remanded.

REVERSED AND REMANDED.

All Judges concur.


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    Ex parte State of Alabama. (Re: George Joseph THOMAS v. STATE).
    83-917.
    Supreme Court of Alabama.
    Aug. 31, 1984.

      Charles A. Graddick, Atty. Gen., and Gerrilyn Y. Grant, Asst. Atty. Gen., for petitioner.
    Jack W. Wallace, Jr., Montgomery, for respondent.
   BEATTY, Justice.

This Court granted certiorari to determine whether the Court of Criminal Appeals was correct in holding that it was error to allow a police officer to testify as a prosecution witness in the State’s case in chief that the victim identified the defendant in a lineup.

The facts are set out in the opinion of the Court of Criminal Appeals, 461 So.2d 15, (Ala.Crim.App.1984).

We agree with the Court of Criminal Appeals on its recognition of the general rule, as found in Aaron v. State, 273 Ala. 337, 345, 139 So.2d 309, 316 (1961):

“The general rule is that evidence by a third party of an extrajudicial identification is admissible in rebuttal of testimony tending to impeach or discredit the identifying witness, or to rebut a charge, imputation or inference of falsity....”

This principle was later reemphasized in Seals v. State, 282 Ala. 586, 603, 213 So.2d 645, 662 (1968), when this Court stated:

“We are of the opinion that the testimony of a third person who heard or observed an extrajudicial identification should not be admitted except under circumstances such as were present in Aaron v. State ... or under unusual circumstances.”

Aaron v. State, supra, contains an analysis of the circumstances under which such evidence may be admitted. In that case, the victim of a rape positively identified the defendant as her attacker during the trial, testifying that she had positively identified the defendant at the jail on a previous occasion. Her physician was also present on that prior occasion when she identified the defendant, and he was allowed to testify to that identification:

“Dr. Murchison, prosecutrix’s physician, accompanied her on the trip to the jail and was with her when she looked into the room with the two-way glass and heard Mitchell and appellant talking. His undisputed testimony was that appellant and Mitchell were talking when he and prosecutrix walked into the room and ‘she identified his voice immediately.’ He recalled that appellant was asked to repeat one particular phrase after a general conversation of several minutes, but he was positive that prosecutrix had ‘identified the voice prior to any questions from anyone.’ ” 273 Ala. at 343, 139 So.2d at 314.

This Court added, at 273 Ala. 344-345, 139 So.2d 316:

“We hold that the testimony of Dr. Murchison that the prosecutrix identified appellant was admissible at the time it was adduced. It was competent because it was in rebuttal of the inference raised on cross-examination of the prosecutrix and Dr. Murchison that the identification of the appellant by the prosecutrix was manufactured.
“The prosecutrix was cross-examined about her failure to identify appellant as her assailant when he was in a lineup at her home shortly after she had been attacked, and also as to her identification of him at the jail on July 7th. Dr. Murchison was also cross-examined as to the number of men in the lineup when the prosecutrix failed to identify appellant. The effect of this cross-examination was to raise the inference that, since the pros-ecutrix had not identified appellant in the lineup on the day of the attack, evidence of her subsequent identification of him at the jail on July 7th was manufactured.
“This question was raised and settled in the case of Yarbrough v. State, 105 Ala. 43, 16 So. 758, 760. The assaulted witness, Cole, had testified that he knew and identified the defendant at the time of the assault, but he did not have the defendant arrested until several months later. Cole was cross-examined as to whether he did not swear out a warrant for the defendant until one Polly Foster had been arrested and had told Cole that the defendant and another had conspired to rob him. Then Polly Foster, a witness for the State, was cross-examined along the same lines. In rebuttal, the State showed that Polly Foster had made this same statement before she had been arrested. This court, speaking through Coleman, J., said:
“ ‘ * * * The evidence thus elicited on cross-examination by the defendant, was competent as tending to affect the credibility of the witness for the prosecution; and the question is presented, whether it was competent, in rebuttal, to show that the witness Polly Foster had made the same statement to Cole and to others before her arrest as she made subsequent to it. We are of opinion that such evidence is competent. The distinction must be kept in mind between such evidence and its purpose, and when a witness attempts to corroborate his own evidence, by proof of having made similar statements to others. The latter is inadmissible. * * * This evidence could not be considered as original or corroborating evidence of the truth of the fact testified to, but purely in rebuttal of the inference, that the testimony was manufactured or the result of the unfriendly act.’
“The general rule is that evidence by a third party of an extrajudicial identification is admissible in rebuttal of testimony tending to impeach or discredit the identifying witness, or to rebut a charge, imputation or inference of falsity. Annotation 71 A.L.R.2d 487; State v. Waggoner, 39 La.Ann. 919, 3 So. 119; Thompson v. State, 223 Ind. 39, 58 N.E.2d 112; Faulkner v. State, 104 Tex.Cr.R. 378, 283 S.W. 824; People v. Kynette, 15 Cal.2d 731, 104 P.2d 794; People v. Slobodion, 31 Cal.2d 555, 191 P.2d 1; State v. Neiman, 123 N.J.L. 341, 8 A.2d 713. A full annotation on extrajudicial identification is found in 71 A.L.R.2d 449.”

The identical point was extensively dealt with in Seals v. State, supra, 282 Ala. at 602-603, 213 So.2d at 661-662:

“Mrs. Shaw during the course of the trial testified to her identification of Seals at the line-up held in the Mobile County jail shortly after she was attacked, and she also made an in-court identification of Seals. See Aaron v. State, 273 Ala. 337, 139 So.2d 309.
“It seems to us that her testimony as to identification would have satisfied the State. But such was not the case. The State called two police officers before Mrs. Shaw took the stand, who were present at the time of the identification and the action of the trial court in permitting those officers to testify to Mrs. Shaw’s actions at that time is said by appellant to constitute reversible error.
“Lt. Don Riddle, who was a police detective at the time of the line-up, testified that he was present and explained the manner in which the line-up was conducted. The court admonished Lt. Riddle as follows: ‘Lt. Riddle, you will confine your testimony to what you saw and what you did, and not to statements of anyone else.’ Thereafter Lt. Riddle testified that Mrs. Shaw, then Mrs. Hickey, identified Seals: ‘In the manner that she walked up in front of this defendant and made specific mention of the fact by gesture in pointing him out that he was * * Moved her hand, Yes, sir.’ Lt. Riddle further testified that ‘when Mrs. Hickey [Mrs. Shaw] walked into the room she walked up in front of the defendant and pointed at him.’ Lt. Riddle was not permitted to testify as to what Mrs. Shaw said on that occasion, although the State persisted in trying to get such statements into evidence.
“Lt. Charles Wimberly, who was also a detective at the time of the line-up, testified that he was present and explained the manner in which the line-up was conducted. During the course of the direct examination of Lt. Wimberly the following occurred:
“ ‘Q. Just tell what she [Mrs. Shaw] did as far as he [Seals] was concerned.
“‘A. Mrs. Hickey [Mrs. Shaw] came out and picked out Willie Seals as being—
“ ‘Mr. Messing [Counsel for Seals] Now, Your Honor.
“ ‘The Court: Just tell what she did.
“ ‘Mr. Booth: [Solicitor] Tell what she did as far — as to Willie Seals, that’s the one we are trying; just tell — as the Judge instructed you.
“ ‘A. She came out and identified Willie Seals.’
“Lt. Wimberly gave no testimony as to what Mrs. Shaw, then Mrs. Hickey, said on that occasion.
“In brief of appellant it is asserted that the testimony of witnesses Riddle and Wimberly relative to Mrs. Shaw’s identification of Seals was inadmissible in that it was hearsay. Reliance is had upon Aaron v. State, 273 Ala. 337, 139 So.2d 309; McBride v. State, 20 Ala.App. 434, 102 So. 728; and Jackson v. Vaughn, 204 Ala. 543, 86 So. 469.
“In Aaron v. State, 273 Ala. 337, 345, 139 So.2d 309, 316, we did observe:
“ ‘The general rule is that evidence by a third party of an extrajudicial identification is admissible in rebuttal of testimony tending to impeach or discredit the identifying witness, or to rebut a charge, imputation or inference of falsity. * * * ’
“This is not an express holding that testimony of the nature given by witnesses Riddle and Wimberly is inadmissible.
“In McBride v. State, supra, the appellant had been convicted of manslaughter in the second degree by running over one Sarah Clark with an automobile. In reversing the trial court, the Court of Appeals of this state said, in part:
“ ‘ * * * We have searched this record diligently for evidence that would tend to connect the defendant with the commission of this crime. Such evidence is not in the record, and this defendant was entitled to the general affirmative charge. True, one of the city detectives testified that defendant was brought to headquarters on the day of the accident and “identified by Gilbreath.” This was the merest hearsay, and should have been excluded. * * * ’ (Schroeder v. Schroeder, 102 So.2d 729).
“As bearing on the distinction sought to be made by the Solicitor between actions and statements testified to by third parties, we quote from Jackson v. Vaughn, 204 Ala. 543, 544-545, 86 So. 469, 470:
“ ‘The sixth assignment is that reversible error was committed in overruling the objection to the question propounded to witness J.F. Knox:
“ ‘ “Did anybody point out to you, the points where the boy was standing, or where he was struck, or anything of that kind?”
“ ‘This interrogatory, without more, had a tendency to elicit hearsay evidence.’
“In Key v. State, 240 Ala. 19, 197 So. 364, we were not concerned with the question presently under consideration. A violation of the hearsay rule was not involved.
“We are of the opinion that the testimony of a third person who heard or observed an extrajudicial identification should not be admitted except under circumstances such as were present in Aaron v. State, 273 Ala. 337, 139 So.2d 309, or under unusual circumstances.”

The Seals court found the testimony of the police officers to be harmless error, because Seals’s identification by Mrs. Shaw both in court and at the lineup was undisputed. The same conclusion cannot be reached in this case, because the victim did not make an in-court identification, nor did he testify that he identified the defendant at the lineup.

It is true that authority exists to the contrary, notably Abercrombie v. State, 382 So.2d 614 (Ala.Crim.App.1980). The facts of that case are succinctly stated in the opinion at 382 So.2d 615:

“Ethel Walker was employed at South-way Drug Department in Jefferson County. At approximately 9:30 on the morning of July 10, 1978, a customer entered and gave her a prescription to be filled. She gave this prescription to the pharmacist. Because Mrs. Walker admitted that she could not identify this customer her in-court identification of the defendant was suppressed.
“The pharmacist, James Arthur Beard, Jr., did not see who handed Mrs. Walker the prescription. However, at the time, Mrs. Walker identified the man to Mr. Beard who then saw the individual. Once Mr. Beard received the prescription he telephoned the police. When the police arrived, Mr. Beard identified the defendant who was still in the store and the defendant was arrested. Upon being arrested the defendant denied giving anyone a prescription.
“When the defendant was arrested, Mrs. Walker made a statement that ‘she would have trouble about identifying the person, or something’ meaning that ‘she could identify him on that occasion, but that she didn’t know about six months from now.’
“The testimony in the record reveals that Mr. Beard’s identification of the defendant as the individual who gave Mrs. Walker the forged prescription was based on what she told him at the time. It is equally clear that Mrs. Walker was able to identify the man who gave her the forged prescription when he actually handed it to her and that she could not identify him at a subsequent date.”

That opinion cites as authority a passage in C. Gamble, McElroy’s Alabama Evidence § 273.01 (3d ed. 1977):

“A statement which is useful in identifying a person, time, place or other thing is admissible for that purpose as a hearsay exception. The statement, of course, may not be considered as evidence of the truth of the matter asserted but only for the limited purpose of identification.” (Footnote omitted.)

While this general statement has application in a number of instances, e.g., fixing the date of a crime, Kyzer v. State, 250 Ala. 279, 33 So.2d 885 (1947), or the place where a crime was committed, Stone v. State, 243 Ala. 605, 11 So.2d 386 (1943), it cannot be used, as its express terms recite, as the truth of the matter asserted.

In this case, the prosecuting witness, Watson, made no in-eourt identification of the defendant, nor did he testify that he identified the defendant in the lineup. Thus, there was no evidence identifying the defendant as the thief at that stage of the trial. Then, the State produced the two police officers who testified “that Watson [the prosecuting witness] identified Thomas [the defendant] in a lineup.” This was the equivalent of allowing the officers to testify that “Watson said Thomas is the thief.” Without question, that statement was admitted for a hearsay purpose, as evidence of “the truth of the matter asserted,” i.e., that Watson’s identification was the truth, and thus as substantive evidence that Thomas was the thief.

The allowance of such evidence in this case was contrary to the rule recognized in Aaron, supra, and Seals, supra, and the general rule recognized in 71 A.L.R.2d 449 at 486:

“The testimony of a third person has generally been treated as inadmissible as original or substantive evidence as to the identity of the accused as the guilty party.”

To the extent that it is contrary to the views expressed herein, Abercrombie v. State, is overruled.

The judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED.

All the Justices concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

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    Teresa Jane COWART v. STATE.
    1 Div. 706.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    On Return to Remand Nov. 27, 1984.
    Willis W. Holloway, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from judgments of conviction and sentence in two cases which had been consolidated for trial. In one of the cases, the jury found defendant guilty of possession of “a controlled substance, to-wit: fluorazepam” and in the other case a jury found her guilty of possessing “a controlled substance, to-wit: Marijuana.” Before the consolidated trial of the two cases, they had been consolidated with three other cases against another defendant, but on motion of defendant, appellant herein, the two cases against her were severed from the three cases against another defendant. Appellant has presented no issue as to the correctness of the rulings of the court as to the consolidation of the two cases against her. We now consider the issues presented in appellant’s brief in the order of their presentation.

I.

Appellant asserts that the trial court committed reversible error in overruling defendant’s motion to suppress evidence of the results of a search of the premises by officers proceeding under a search warrant, on the ground that the search warrant was not executed by any officer empowered to execute the same in accordance with the following sections of Code of Alabama 1975:

“§ 15-5-5.
“If the judge or the magistrate is satisfied of the existence of the grounds of the application or that there is probable ground to believe their existence, he must issue a search warrant signed by him and directed to the sheriff or to any constable of the county, commanding him forthwith to search the person or place named for the property specified and to bring it before the court issuing the warrant.
“§ 15-5-7.
“A search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.”

In the brief of appellant, it is stated:

“The search warrant involved in this case was directed ‘To the Sheriff of Mobile County:’ A Mobile police officer who had been deputized by the Sheriff before the search in question along with other Mobile police officers conducted the search. The Sheriff of Mobile County was not present, and neither were any deputies under his control or supervision. The officers did not act in any way under the direction, control of permission of the Sheriff or his department.
“Therefore, there was no one present at the time of the search with authority to execute the warrant, and the evidence seized should have been suppressed, and the motion should have been granted.”

In recognizing, as appellant does by the statement quoted above, that the Mobile police officer “who had been deputized by the Sheriff before the search in question along with other Mobile police officers conducted the search” (emphasis supplied), it is to be seen that the search was in accordance with the statutory law on the subject, as held in Walden v. State, Ala.Cr.App., 426 So.2d 515, 516 (1982).

II.

Appellant captions the second issue presented as follows:

"A search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.”

The proposition stated is a verbatim recital of Code of Alabama 1975, § 15-5-7, which, of course, controls. As previously shown herein, the search warrant was directed to the Sheriff of Mobile County. As stated above, it was executed by one who had been deputized by the Mobile County Sheriff. Appellant urges in her brief that neither the deputized officer nor any other officer taking part in the search was authorized to execute the search warrant and relies for support upon Rivers v. State, Ala.Cr.App., 406 So.2d 1021, 1023 (1981), cert. denied, 406 So.2d 1023, wherein it was stated:

“Since the warrant was directed to ‘any ABC agent’ rather than a county official and was executed by ABC agents without the authority of county officials, the evidence procured under this search should not be admitted. The appellant’s motions to suppress or exclude such evidence should have been granted.”

In Rivers, the warrant was invalid in that it was not directed to the sheriff or a constable of the county as statutorily mandated, and the purported execution of the warrant was invalid in that there was no execution by anyone having statutory authority to execute the warrant. In the instant case, the issuance of the warrant was valid in that it was directed to the Mobile County Sheriff, and the execution thereof was valid in that it was executed in Mobile County by one who had been deputized by the Mobile County Sheriff.

III.

The next issue stated by appellant is stated in appellant’s brief as follows:

“For an item in plain view to be validly seized, the officer must possess some judgment at the time that the object to be seized is contraband.”

In support of appellant’s contention, Kinard v. State, Ala., 335 So.2d 924 (1976), and Shipman v. State, 291 Ala. 484, 282 So.2d 700 (1973), are cited. Both cases deal with warrantless searches and, therefore, are inapposite to the issue raised by appellant in the possession of fluorazepam case. She is correct in her contention that the prohibited substance fluorazepam, which a qualified chemist testified she tested and found to exist in some of the materials seized in the execution of the search warrant, was not specifically listed in the warrant as an object to be seized. Appellant cites no authority to the effect that the seizure of a specific controlled substance is not valid when the seizure is made while executing a valid search warrant for other specific controlled substances, and we are not aware of any such authority. Appellant’s contention that the judgment of conviction for the possession of fluorazepam should be reversed is not well taken, in our opinion.

IV.

The final contention of appellant is epitomized in the last paragraph of appellant’s brief:

“Constitutional double jeopardy provisions prohibit the splitting of a single criminal act so as to justify multiple prosecutions for identical criminal behavior. The multiple sentences based upon possession of marijuana and possession of fluorazepan at one time is therefore prohibited under the doctrine set out in Vogel v. State, [Ala.Cr.App.] 426 So.2d 863, [1980] and Defendant’s case should be remanded for proper re-sentencing.”

In addition to a fine assessed by the jury in each of the cases, the court imposed a sentence in CC83-372 for possession of fluorazepam of imprisonment “for a period of five years” and in CC 83-371, for the possession of marijuana for defendant's personal use, the trial court ordered that defendant be sentenced “for six months in the county jail” and that the sentence “run consecutive to the sentence in case No. CC 83-372.” As the sentences were not so imposed as to run concurrently, the State concedes, and we agree, that the cases should be remanded for sentencing. Although the judgments of conviction should be affirmed, the cases should be remanded with directions that the trial court conduct another sentence hearing, with notice to the parties, and resentence defendant, and make due return thereof, with notice to the parties, to this order of remandment. Either party aggrieved thereby will have twenty-eight days within which to file a brief, and the opposing party fourteen days thereafter to file a reply brief.

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

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

It being shown by the Return to Remand that at the resentence hearing, in the presence of appellant and attorneys for each of the parties, the case against appellant for the possession of marijuana was non-prossed on motion of the State, that the punishment fixed by the fine assessed and the sentence imposed on the resentencing hearing in the case for the possession of fluorazepam was the same as it was on the former sentencing hearing, and that neither party has filed any brief within the time provided for the filing of a brief by any aggrieved party, the judgment of conviction and sentence should now be, and it is hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    James J. TERRY v. STATE.
    5 Div. 889.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    As Corrected on Denial of Rehearing Oct. 9, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-97.
    James J. Terry, pro se.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

While confined within the Alabama Prison System at Staton Correctional Center in Elmore County, James J. Terry filed on March 14, 1984, in the Circuit Court of Elmore County a petition for writ of habe-as corpus in which he claimed that he was then being held illegally at Staton. He based his claim on an allegation that he was being held on an illegally imposed sentence of November 11, 1983, by the Circuit Court of Mobile County, Alabama, after a judgment of conviction had been rendered against him for a felony at the conclusion of a trial commencing on June 7, 1983. It was further alleged in the habeas corpus petition that on October 7, 1982, while petitioner was in prison in Staton Correctional Center he filed an “INMATE’S NOTICE OF PLACE OF IMPRISONMENT AND REQUEST FOR DISPOSITION OF INDICTMENTS, INFORMATION OR COMPLAINTS,” in which he requested “that a final disposition be made of the following indictments, information or complaints now pending against me [him]: Robbery 1st degree,” and that on October 21, 1982, the Director of Inmate Records Administration of the Department of Corrections, upon receipt of the “Inmate’s Notice,” wrote the Mobile County District Attorney, enclosing a copy of the “Inmate’s Notice” and stating in the letter the following:

“In accordance with the Uniform Mandatory Disposition Act, Code of AL 15 — 9— 82, you have ninety days (90) to initiate trial proceedings, providing the court having jurisdiction does not grant for good cause a continuance.”

On March 27, 1984, the State filed a motion to dismiss the petition for habeas corpus on the following grounds:

“1. An allegation of errors and irregularities in the conduct of a trial or prior to trial cannot be considered in a Petition for Writ of Habeas Corpus. Allen v. State, 41 Ala.App. 336, 132 So.2d 327 (1961), cert. denied, 368 U.S. 1001 (1962) and Fields v. State, 407 So.2d 186 (Ala.Cr.App.1981).
“2. Alabama Code Section 16-9-82 and -84 relates exclusively to problems pertaining to interstate extradition and not to intrastate detainers. McAlpin v. State, 397 So.2d 209 (Ala.Cr.App.), cert. denied, 397 So.2d 211 (Ala.1981).
“3. Petitioner has failed to properly verify his petition as required by Section 15-21-4 Code of Alabama, 1975; O’Such v. State, 423 So.2d 317 (Ala.Cr.App.1982); 28 U.S.C.A. 1746 and Moore v. State, 417 So.2d 610 (Ala.Cr.App.1982).”

On March 28, 1984, the Circuit Court of Elmore County entered an order stating that it considered that the motion to dismiss was well taken and ordered that the “Petition for Writ of Habeas Corpus be and is hereby DISMISSED.”

While still confined at the Staton Correctional Center on April 5, 1984, James J. Terry filed with the Clerk of the Elmore County Circuit Court a notice of appeal from the “Dismissal” of his petition for writ of habeas corpus and thereafter filed a fifteen-page brief with this Court in which he strongly urges that as he was being held as an inmate at Staton Correctional Center in Elmore County at the time he requested “that a final disposition” be made of the prosecution against him, he was at that time being detained at the Staton Correctional Center and, therefore, was within the coverage of the word “de-tainer” or “detainers” as contemplated by the Alabama Uniform Mandatory Disposition of Detainers Act (Acts 1978, No. 520, p. 693), now codified as Code 1975. Section 15-9-80 through Section 15-9-88.

It should be said to appellant’s credit that he is apparently sincere in his contention that the text of some of the language of the Alabama Uniform Mandatory Disposition of Detainers Act does not justify the conclusion that said Act is not applicable to appellant as one who was being detained at Staton pursuant to the sentence imposed in 1983 by the Circuit Court of Mobile County. Out of respect for such sincerity, we deem it appropriate to explain that, although appellant’s concept of the word “detainer” is consistent with the usual signification thereof as “a writ authorizing a keeper of a prison to continue to keep a person in custody” as defined in part in Webster’s Second New International Dictionary, it is not consistent with the meaning of the word, singular or plural, as found in the Alabama Uniform Mandatory Disposition of Detainers Act, which “relates exclusively to problems pertaining to interstate extradition” and not to intrastate detainers. However, it is to be kept in mind that as expressed in the “Agreement on Detain-ers”: “ ‘State.’ shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.” Not only is this meaning of the term “detainers” to be clearly found in the language of the Act in its entirety but it has been judicially determined time and again in federal courts and in state courts that the term “detainers” as found in the Act does not include the judicial authority from a court of a state of the United States by which a prison or like facility of said state detains one therein or thereat.

“The word ‘detainer’ as it is used in the Agreement is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” (Emphasis supplied). United States v. Groomes, 520 F.2d 830, 838 (3rd Cir.1975).

The trial court was correct in dismissing this appellant’s petition for writ of habeas corpus, and the judgment of the trial court should bé affirmed.

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

AFFIRMED.

All the Judges concur.

      . The record before us indicates but does not conclusively show that at the time of the filing of the “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Information or Complaints” this appellant was being held at the facility on authority of a judgment of conviction and sentence previous to and unrelated to the case in the Mobile County Circuit Court forming the basis for the petition for writ of habeas corpus but that he had completed service of that sentence at the time of the filing of the petition.


text:
    Alfonza BAKER and Bobby Lee Baker v. STATE.
    No. 4 Div. 236.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 23, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-168.

      Donald J. McKinnon, Clayton, for appellant.
    Charles A. Graddiek, Atty. Gen., and Debra Jean Williams Brown, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellants Alfonza Baker and Bobby Lee Baker were both convicted of receiving stolen property in the second degree. Each received a sentence of three years’ imprisonment. The four witnesses who testified for the State presented the following evidence:

Sara Watson testified that her home was burglarized in December of 1982. She returned to her home after a trip to find that her front door had been broken in, and that $5,000 worth of silver flatware was missing from its chest. The missing pieces included items in the patterns known as Old Master and Chateau Rose. Among other things, a green-colored “Daniel Green” brand shoe box was also missing. Ms. Watson testified that she later identified some of her silverware at the sheriff’s office.

Dr. Wayne Adams stated that he operated a pawn shop in Troy, Alabama. He testified that on January 29, 1983, two men came into his store while a third individual remained outside in a car. The two men had a shoe box containing silver flatware in patterns known as Old Master and Chateau Rose. The two men tried to sell the silver to Adams for $200, but the witness said he knew the silver was worth considerably more than that, and he refused to buy it. He directed the men to a place called The Gold Exchange. Adams said he knew The Gold Exchange was not open at that time. He was uneasy and took down the tag number and description of the automobile. He then phoned the police.

On cross-examination Adams stated that only one of the two men who entered the store talked with him about the silver while the other man remained close by. Adams was unable to positively identify the two men who had been in the store.

David Johnson testified that he was a detective sergeant with the Troy Police Department. On January 29, 1983, he received a call from the dispatcher to look for a car occupied by three black males who were alleged to have in their possession a shoe box containing a large quantity of silver knives, forks and spoons. Johnson also received information about the burglary of the silver and the missing green shoe box from the Barbour County Sheriff’s Department. When Johnson reached The Gold Exchange parking lot the appellants were already being questioned by patrol officers. Johnson looked inside the vehicle and saw a brown grocery bag. Protruding from the end of the bag was a “Daniel Green” shoe box. The edges of the box were cracked and silver items could be seen protruding through the openings.

Johnson identified the appellants as two of the three men he saw in The Gold Exchange parking lot. The third individual was identified as Cleveland Young. Young told Johnson that the appellants had accompanied him to Troy to try to sell the silver. Johnson testified he recovered the silver inside the shoe box and kept it in his possession.

Carl Hagler testified that he was a Barbour County deputy sheriff. He stated that on January 31, 1983, he interrogated Alfon-za Baker and Bobby Lee Baker concerning the silver found in a ear belonging to Cleveland Young. He testified that Bobby Baker signed a waiver of counsel form containing his Miranda rights before he made a statement. Hagler testified the rights were explained to Bobby Lee Baker before the form was signed, and no threats, force, intimidation or coercion were used to induce his statement.

Hagler testified that the statement given by Alfonza Baker was made under the same circumstances. The Baker brothers both admitted telling Cleveland Young where he co.uld sell the silver in Troy. They said Alfonza went into the store with Cleveland Young in the unsuccessful attempt to sell the silver.

I

Appellants challenge the sufficiency of the State’s evidence on several different grounds. They first contend that they were never shown to have had actual control over the stolen silver. Appellants also contend that it was never shown that they ever “saw, held or touched the silver prior to Cleveland Young’s attempt to sell it to Wayne Adams”. They also claim that the State failed to show that they knew or had reason to know that the silverware was stolen.

An examination of the statements given to the police by the appellants shows that they both knew that they accompanied Cleveland Young in order to help him sell the silverware. The evidence adduced from these statements, as well as discovery of the appellants in a car containing contraband, was certainly sufficient to show their possession of the stolen property. Possession of recently stolen goods is a circumstance for the jury’s consideration. It is up to them to determine whether an accused’s explanation of possession of contraband is true. See Pugh v. State, 376 So.2d 1135 (Ala.Crim.App.), cert. denied 376 So.2d 1145 (Ala.1979).

It is also clearly within the power of the jury to infer the requisite scienter after considering all the surrounding facts and circumstances in a case. Goodman v. State, 401 So.2d 208 (Ala.Crim.App.), cert. denied 401 So.2d 213 (Ala.1981).

This court has said that guilty knowledge can be inferred if a receiver buys goods for a great deal less than their actual value. Tyree v. State, 407 So.2d 580 (Ala.Crim.App.1981). The record shows that the price requested for the silverware when Alfonza Baker and Cleveland Young went into the pawn shop was drastically below the actual value of the silver. Thus we find from these facts that the necessary scienter could have been inferred by the jury.

Appellants’ contention that the evidence was insufficient to show their complicity under Section 13A-2-23, Code of Alabama 1975, is also without merit. Once again, the issues raised in appellants’ brief concerning sufficiency all go to questions of fact which are within the exclusive province of the jury. See Miller v. State, 405 So.2d 41 (Ala.Crim.App.1981). We conclude, therefore, that no reversible error was committed by the lower court concerning the sufficiency of the evidence.

II

Appellants’ last contention on appeal is that the statements they made to police after their arrest were inadmissible since their arrests were illegal. We cannot agree. The testimony of Officer Johnson established that he received a call from a dispatcher describing the appellants’ car, and informing him that they were believed to have in their possession a large quantity of silver flatware. Johnson also had received information about the burglary of Ms. Watson’s home. The appellants were found in a car matching the description given Officer Johnson by the dispatcher. In plain view within the vehicle was the green shoe box containing the missing silverware. Based on this evidence, we hold that there was probable cause to stop and arrest the appellants. See Ala.Digest, Arrest, §§ 63.5(1) and 63.5(4), and cases cited therein.

Thus, we conclude that the judgment of the lower court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Rickey H. WHITT, alias v. STATE.
    7 Div. 263.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Rehearing Denied Oct. 9, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-110.
    William R. Willard, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen. and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

In separate indictments, Rickey H. Whitt was charged with one case of theft of property in the first degree in violation of Alabama Code 1975, § 13A-8-3, and three cases of theft of property in the second degree in violation of Alabama Code 1975, § 13A-8-4. Whitt pled guilty to each charge and was sentenced as an habitual offender to fifteen years (concurrent) in each case. Three issues are raised on appeal.

I

Whitt argues on appeal that his prior felony convictions could not be used to enhance his punishment in the cases at hand because the State failed to prove that these convictions occurred after his prior convictions.

We recognize that “the recidivist statute comes into play only when a defendant commits an offense after he has previously been convicted of a felony.” Burgess v. State, 412 So.2d 298, 299 (Ala.Cr.App.1982) (emphasis in original); Alabama Code 1975, § 13A-5-9(a). See also Hamm v. State, 439 So.2d 829, 831 (Ala.Cr.App.1983). Whitt’s prior convictions occurred in 1978. Although the record is silent as to the exact date of the commission of the four thefts on appeal, the record does show that the arrest warrants were issued and the indictments returned in 1984. We note that Alabama has a three-year statute of limitations on most felonies, Alabama Code 1975, § 15-3-1, and that this bar was never raised in the circuit court.

More significantly is the fact that defense counsel stipulated to the prior felony convictions before Whitt entered his pleas of guilty.

“THE COURT: Any objection to the certified copies?
“MR. WRIGHT [Defense Counsel]: No, sir, we have no objection. As a matter of fact, we would stipulate he has in excess of four prior felony convictions.
“THE COURT: This doesn’t come as a surprise to you? You have had an opportunity to check into these offenses?
“MR. WRIGHT: Yes, sir, and discuss it with him.”

We addressed this issue in Burrell v. State, 429 So.2d 636, 640 (Ala.Cr.App.1982):

“Such an admission by counsel on behalf of the accused he is representing, unless qualified, sufficiently ‘admits all of the ingredients needed to prove the conviction of the crime.’ Donahay v. State, 287 Ala. 716, 255 So.2d 599 (1971). By admitting the prior convictions, the appellant relieved the State of the burden of proving the prior convictions. Dona-hay, supra. Therefore, the trial judge properly sentenced the appellant as a habitual felony offender.”

See also Peoples v. State, 415 So.2d 1230-31 (Ala.Cr.App.1982); Crittenden v. State, 414 So.2d 476, 482 (Ala.Cr.App.1982); Miliner v. State, 414 So.2d 133, 135 (Ala.Cr.App.1981), cert. denied, 431 So.2d 582 (Ala.1983); McGhee v. State, 412 So.2d 327, 328 (Ala.Cr.App.1982); Lyner v. State, 398 So.2d 420, 421 (Ala.Cr.App.1981).

II

This Court has repeatedly upheld the constitutionality of Alabama’s Habitual Felony Offender Act. Chambers v. State, 418 So.2d 948, 950 (Ala.Cr.App.1982); Lidge v. State, 419 So.2d 610, 613-14 (Ala.Cr.App.), cert. denied, 419 So.2d 616 (Ala.1982); Watson v. State, 392 So.2d 1274, 1277 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). Moreover, issues I and II are not preserved for review. “It is universally held that a voluntary plea of guilty waives all non-jurisdictional defects.” Lane v. State, 412 So.2d 292, 294 (Ala.1982); Dingler v. State, 408 So.2d 530 (Ala.1981). See also United States v. Jackson, 659 F.2d 73 (5th Cir.1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1637, 71 L.Ed.2d 870 (1982); Lambert v. United States, 600 F.2d 476 (5th Cir.1979); Franklin v. United States, 589 F.2d 192 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (1979).

Ill

There is nothing in the record to indicate that the trial court erred in failing to initiate an inquiry into Whitt’s mental competency.

Whitt’s first appointed attorney, Gary L. Phillips, filed a motion for a competency investigation in which he asserted that Whitt had “attempted suicide at least twice prior to his incarceration” and had “attempted to commit suicide or do great harm to his person twice while he has been so incarcerated.” In that motion, counsel stated that “the Defendant has refused to take his attorney’s advice to stop such behavior and has instructed his attorney not to request any mental examination of the Defendant for the purpose of determining his competency to stand trial and has stated to his attorney that he would request another attorney be appointed for his defense and his present attorney removed if said attorney requests a mental examination of the Defendant.” At Whitt’s request, Phillips was allowed to withdraw and Hubert H. Wright was appointed. Wright’s Attorney Fee Declaration reveals that counsel spent a significant amount of time in conference with Whitt, his sister, his former wife, his former attorney and others before pleading Whitt guilty.

Before the guilty pleas were entered, Whitt withdrew his (attorney’s) motion for a competency examination.

“THE COURT: Well, I think it is your option. If you want to withdraw it after consulting with your client that is fine with me.
“MR. WRIGHT: You understand there is a Motion before the Court to have you examined by Bryce Hospital?
“THE DEFENDANT: Yes, sir, I do.
“MR. WRIGHT: All right. I would like to withdraw that. Are you in agreement with withdrawing that Motion?
“THE DEFENDANT: Yes, sir, I am.
“MR. WRIGHT: All right.
“THE COURT: All right. I am going to enter an order showing it withdrawn.”

It is clear that Whitt, after consultation with his attorney, waived his request for psychiatric examination.

“A defendant has no right to receive a mental examination whenever he [or his attorney] requests one and, absent such right, a motion for psychiatric examination to determine the competency or sanity of an accused is directed to the sound discretion of the trial judge, who must act as a screening agent for such. * * * Common sense, as well as sound legal authority, dictates that the trial judge not grant a psychiatric examination at state expense unless there is some reason to believe the accused was incompetent or insane.” Bailey v. State, 421 So.2d 1364, 1367 (Ala.Cr.App.1982). “[I]n the absence of any evidence, the mere allegations by counsel that the accused is incompetent to stand trial do not establish ‘reasonable ground to doubt [defendant’s] sanity’ which would warrant an inquiry into his competency.” Whorton v. State, 422 So.2d 812, 813 (Ala.Cr.App.1982). The trial court is not in error for failing sua sponte to order a competency examination for the defendant where a defendant has consistently declared himself ready to proceed with trial and able to consult with counsel and understand the charges against him, and where defense counsel, after further consultation with the defendant, reversed an earlier position and indicated that he was no longer suggesting that his client was incompetent to stand trial and that the defense would not request an examination. United States v. Robinson, 530 F.2d 677, 678 (5th Cir.1976).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Alvinito Leroy ROUNDTREE v. STATE of Alabama.
    1 Div. 850.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Nov. 27, 1984.

      T. Jefferson Deen III, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Phillip Luke Hughes, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The appellant was indicted for assault with intent to murder one Felicia Simon Tate by “stabbing her with a knife,” in violation of § 13A-4-2, 13A-6-2, Code of Alabama 1975. The jury found the appellant guilty of attempted murder as charged in the indictment and, following a sentencing hearing, the trial court set punishment at 15 years in the penitentiary pursuant to the Habitual Felony Offender Act.

The weight and sufficiency of the evidence are not challenged by the appellant, therefore a complete recitation of the facts is unnecessary. The wounding of Felicia Simon Tate came after an argument at the home of her sister, between Linda Chapman and the appellant. The appellant had referred to the victim as a “bitch”.

I

The appellant contends that the trial court erred in refusing his written requested charge on sudden passion and legal provocation.

A review of the evidence indicates that there was no act of sudden passion caused by “legal provocation” in issue. The victim of this stabbing, Felicia Tate, and two other eye witnesses, testified that the appellant was in the kitchen of his ex-wife’s home talking to his former step-daughter. Felicia Tate entered the kitchen and observed her niece crying. She asked why her niece was crying and told her to go in the living room. The appellant responded to this by calling Ms. Tate a “bitch”. Ms. Tate’s sister and the mother of the young girl, Linda Chapman, heard this and came into the kitchen. She asked her ex-husband, the appellant Roundtree, to leave. Ms. Tate asked the appellant why he called her such a name and Ms. Chapman stepped between them. The appellant reached over Ms. Chapman’s shoulder and stabbed Ms. Tate in the chest. The witnesses further stated that no one advanced toward the appellant during this time and that no one threatened him.

The appellant testified that he did not mean to hurt anyone and the stabbing must have been an accident. He stated that he did not remember having a knife in his hand, but it was possible. He stated that everyone had crowded around him and that he just pushed his way through the group and left.

A review of the record in the instant case reveals that the trial court properly refused the requested jury instruction. It was not applicable under the evidence in this cause. See Shepard v. State, 51 Ala.App. 66, 282 So.2d 418 (1973).

II

The appellant contends that the trial court erred in allowing into evidence a knife which had not beep given to defense counsel pursuant to the trial court’s pretrial discovery order. The record indicates that defense counsel was informed of the existence of the knife ten minutes before trial of the case commenced. Defense counsel moved for a mistrial based on non-production by the State and such motion was denied. The knife was subsequently admitted into evidence.

The record further indicates that the State was unaware of the existence of the knife until ten minutes before the trial when a police officer turned it over to them. The prosecutor immediately informed defense counsel of this and allowed defense counsel to inspect the knife. The record further reflects that the police report on the incident did not reveal that a knife had been recovered.

“The grant or denial of a mistrial is a matter within the sound discretion of the trial court and will only be disturbed upon a showing of manifest abuse.” Durden v. State, 394 So.2d 967 (Ala.Crim.App.1980), cert. denied, 394 So.2d 977 (Ala.1981); Wright v. State, 421 So.2d 1324 (Ala.Crim.App.1982); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967).

In the present case, defense counsel has neither shown that the State intentionally withheld the evidence, nor that the evidence was suppressed. Further, such evidence was not exculpatory, therefore, there is no violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) as appellant argues. The trial court did not err in denying the mistrial in this cause and the evidence at issue was properly admitted. See Jones v. State, 396 So.2d 140 (Ala.Crim.App.1981); Wright v. State, 421 So.2d 1324 (Ala.Crim.App.1982); Johnson v. State, 433 So.2d 473 (Ala.Crim.App.1982), affirmed, 433 So.2d 479 (Ala.1983); Nelson v. State, 440 So.2d 1130 (Ala.Crim.App.1983).

There is no error in this record. This cause is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    George E. WARREN v. STATE of Alabama.
    4 Div. 356.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Nov. 27, 1984.
    Julius H. Hunter, Jr., Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen. and M. Beth Slate, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

George E. Warren filed a petition for writ of error coram nobis in the Russell Circuit Court alleging that his trial counsel coerced him into pleading guilty to a murder charge and, therefore, his plea was involuntarily made and he should now receive a new trial. Following a hearing, the trial judge denied the petition and hence, this appeal.

The petitioner alleges that he did not want to plead guilty but did so because defense counsel told him he would withdraw from the case if he did not plead guilty. The following facts were established at the hearing on this petition.

I

The petitioner, along with Johnny Luke, was indicted for the capital murder of James Hughes. Before trial of this offense, defense counsel informed the petitioner of the weaknesses of his case and advised petitioner that it was in his best interest to plead guilty rather than take the chance of receiving a possible death sentence. Defense counsel also asked the petitioner’s father and his girl friend to talk to him about pleading guilty. The petitioner refused and the case went to trial.

After the State had presented two statements made by the petitioner and had rested its case, the petitioner asked defense counsel if he could get “some time.” Defense counsel then made the petitioner’s request known to the district attorney. After talking with the victim’s family, the district attorney offered the petitioner 50 years in return for his guilty plea. The petitioner accepted the offer and pled guilty to the offense of murder and received a 50 year sentence.

Following the hearing, the trial judge found that it was the petitioner who asked that the trial be stopped and who inquired about the possibility of a plea bargain. The trial judge’s findings state that the petitioner knowingly, intelligently and voluntarily pled guilty without coercion from anyone and with full knowledge of his rights and this sentence.

The record clearly supports the trial judge’s findings which determine that this petition is wholly without merit. It is obvious that the petitioner pled guilty to avoid the possibility of receiving a death sentence and he did so of his own free will.

This record is free of error and this cause is, therefore, affirmed.

AFFIRMED.

All the Judges concur.