text:
    Albert D. SMITH v. STATE.
    2 Div. 360.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1225.
    Blanchard L. McLeod, Jr., Robert R. Blair and John A. Lockett, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The appellant, Albert D. Smith, was indicted for the offense of first degree robbery, in violation of § 13A-8-41, Code of Alabama 1975. After a jury trial, appellant was found “guilty as charged” and was sentenced to fifteen years in the state penitentiary.

The evidence adduced by the state shows that, on September 16, 1981, Reba Smith, a store clerk at the Cougar Oil Station near Burnsville, Alabama, in Dallas County, was robbed at gunpoint of $473.07 by an unidentified black male. While the robbery was in progress, appellant was seen by a passer-by sitting in a green colored automobile located on the side of the highway near the Cougar Oil Station. The witness, who recognized appellant, stated that he knew the appellant since he was the man who “had been seeing his cousin Easta.”

According to the testimony of the store clerk and other witnesses, the unidentified black male left the store after the robbery and got into the green Ford Mustang automobile in which appellant was seen sitting. With appellant driving, the two men then drove off at a fast speed toward Prattville on Highway 14. Several hours after the robbery, appellant was stopped in Autauga County and arrested. At the time of the appellant’s arrest, he was driving a dark colored Chevrolet. A green Mustang belonging to appellant’s girl friend was found parked nearby behind an abandoned house.

Penelope Briskey, appellant’s girl friend, testified that she was employed at the Dollar Store in Autaugaville on the day of the robbery and was working the 2:30 to 11:00 p.m. shift. She stated that, on this day, appellant' rode with her to work, after which he borrowed her green and white 1972 Mustang. Ms. Briskey stated that she later saw appellant and a “black guy” drive off in her Mustang. She testified that she had seen the black naan in the car with appellant before and believed his name was “Silas.”

Appellant testified in his own behalf saying that he had gone to the Cougar Station in his girl friend’s car to get some gasoline. He testified that, as he waited to fill her car with gas, a black man walked up to the car, pulled a gun, and got in the car, telling him to drive up the road a short distance and park. The black man then got out of the car, taking the car keys with him, and proceeded to the Cougar Station. Shortly thereafter, the man returned and threw the car keys to him. Appellant stated that he then cranked the car, took the car to his girl friend’s house, and parked it in back.

Appellant testified that he then walked to his mother’s house, got into his own ear, and drove to Autaugaville to talk with Ms. Briskey. On return to his mother’s house, he was told that the police were looking for him. Appellant stated that he then drove toward his girl friend’s house, where he saw several police cars parked. Seeing the police, he then started to drive to Autauga-ville to see Ms. Briskey and also to tell the police that he had not been involved in the robbery. However, he was stopped and arrested before reaching his destination.

At the time of appellant’s trial, the identity of the unidentified black male who actually committed the robbery was unknown both to the trial court and to defense counsel. Furthermore, no one other than appellant had been arrested in connection with the robbery.

Appellant contends for the first time on appeal that he was denied his constitutional right to due process because the jury venire was not properly qualified. Appellant states that the prosecution introduced evidence indicating that “Stanley Silas” was the “unidentified black male” who actually committed the robbery, and that the prosecution failed to reveal his name to the trial court or to the appellant. Because of this failure to reveal the name, the prospective jury members were not qualified as to possible relations with Stanley Silas, and, hence, there was the possibility that some jurors were subject to challenge for cause.

As a general rule of law, a juror is subject to challenge for cause, although not related to the accused, if he is related to a party in custody and awaiting trial for participating in the same offense. Thomas v. State, 133 Ala. 139, 32 So. 250 (1902). However, review on appeal is limited to a consideration of questions properly raised in the trial court. Oates v. State, 375 So.2d 1285 (Ala.Cr.App.1979). Constitutional questions are not before this court unless raised in some manner in the trial court. Grace v. State, 369 So.2d 318 (Ala.Cr.App.1979).

The name of the unindicted suspect became known at trial, and, after it was learned, no motion for mistrial was made on the grounds argued here by appellant, nor was a motion for new trial made on these grounds. Furthermore, this matter was never even brought to the trial court’s attention. From the failure to present or even raise this issue in the trial court, we can only conclude that it was deliberately waived.

Appellant further contends that the trial court committed reversible error when it admitted into evidence a statement made by the appellant without a showing that he had been given his Miranda rights. Since no objection was made to the admission of the statement, no question for review is preserved. Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied 398 So.2d 376 (Ala.1981).

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Larry JONES v. STATE.
    4 Div. 107.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1229.
    C. Lawson Little, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

The appellant, Larry Jones, was indicted by the Houston County Grand Jury for the offense of burglary in the second degree, in violation of § 13A-7-6 Code of Alabama 1975. Appellant was arraigned on February 24,1982, where he entered a plea of not guilty and not guilty by reason of insanity. After requesting a sanity determination, appellant was examined at the Taylor Hardin Medical Facility in Tuscaloosa, Alabama, and was determined competent to stand trial. He was tried before a jury on September 28, 1982, and was found guilty as charged. He was sentenced to eight years in the state penitentiary.

One of the issues appellant raises on appeal is that the state failed to present a prima facie case of second degree burglary. The crime appellant was charged with in this case was that he did knowingly enter or remain unlawfully in a building of Bulah Pyne with intent to commit the felony of robbery in the first degree, and, while he was effecting entry or while in said building or in immediate flight therefrom, he was armed with a deadly weapon, to-wit: a knife.

The state produced evidence showing that Bulah Pyne, age sixty-five and a resident of Cottonwood, Alabama, was asleep in her house on February 2, 1982. Around 2:00 a.m., she was awakened when the appellant pushed open her bedroom door. Appellant did not have permission to be in the house. Mrs. Pyne testified that appellant told her to “lie still,” and then he got into bed with her and started “hugging and kissing” her. Mrs. Pyne stated that appellant held both of her hands, and she told appellant to “turn her aloose.” Appellant refused to do so, and the two of them “just laid still.” Before appellant left her house later that morning, Mrs. Pyne stated that he demanded money while holding a butcher knife in his hand. She stated that she did not give him any money. Mrs. Pyne further stated that appellant threatened to kill her if she did not “drop” this case.

Grover Guy, Mrs. Pyne’s brother, testified that in the early morning of February 2, 1982, Mrs. Pyne drove to his house and told him that appellant had been in her house. Mr. Guy stated that he went to her house and found that the lock on one of the doors had been pried open and that her bed was in shambles. He noticed at that time that his sister’s arms and face were badly bruised.

Myrtle Jones, appellant’s mother, testified that on the night of February 1, 1982, appellant went to bed at around 10 o’clock, and that appellant was at her house at 5:30 a.m. the next day. She stated that her house is about three miles from Mrs. Pyne’s house.

While appellant admits in his brief that he was unlawfully in Mrs. Pyne’s house, it is his contention that the evidence failed to prove that he intended to rob Mrs. Pyne as set out in the indictment. We do not agree. The evidence shows that, while appellant was in the house, Mrs. Pyne saw appellant holding a butcher knife as he demanded . money. Even though Mrs. Pyne never gave appellant any money, the holding of the butcher knife where she could see it as he asked for her money was sufficient to show that appellant had the necessary intent to rob Mrs. Pyne. Ala.Code § 13A-8-41 (1975).

Appellant further contends that the pros-ecutrix, due to a mental defect, was incompetent to testify as a witness in this case. Before trial, a hearing was conducted outside the presence of the jury to determine Mrs. Pyne’s competency to testify as a witness. Evidence was presented showing that on November 22, 1977, several years prior to the burglary, Mrs. Pyne had been declared non compos mentis by the Houston County Probate Court and was committed to Searcy State Mental Hospital. Mrs. Pyne was released on a six-months trial basis on March 15,1978, and was discharged from Searcy Hospital on September 25, 1978. She was subsequently hospitalized at Charter Woods Hospital in Dothan, Alabama, on May 14, 1981. After undergoing successful treatment, Mrs. Pyne was discharged from Charter Woods on June 5, 1981.

Evidence was also produced showing that in a previous trial of this case, Mrs. Pyne testified that appellant had raped her after he entered her house. However, since such was not the case, a mistrial had been granted.

Mrs. Pyne was questioned by the trial court as to whether she knew the meaning of taking an oath. Her response was that it meant “to tell the truth.” She further stated that she could read, but could not write, and had gone to school through the ninth grade.

It is appellant’s contention that Mrs. Pyne’s untruthful statement made at the previous trial of this case that appellant had raped her coupled with her history of mental illness demonstrates the untrustworthiness of her testimony, and, hence, its inadmissibility.

This court in Smith v. State, 380 So.2d 345 (Ala.Cr.App.1980), reaffirming the general rule concerning the competency of witnesses, held:

“ ‘... The fact that a person’s mental disorder renders him incapable of managing his own affairs, that he is under guardianship or that he, by reason of the mental disorder, is kept confined in a hospital for the mentally ill, does not necessarily disqualify him to be a witness.
“ ‘The general rule, therefore, is that a lunatic or a person affected with insanity, is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be. determined by the court, upon examination of the party himself, and any competent witness who can speak to the nature and extent of his insanity.’ District of Columbia v. Arms, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618.”

The fundamental question in cases where the competency of a witness is challenged is whether “the derangement or defect is such as to make the person highly untrustworthy as a witness.” Smith, supra. Whether a person’s affliction with a mental defect is such as to incapacitate him to be a witness is a matter to be determined by the trial judge. C. Gamble, McElroy’s Alabama Evidence, § 94.01(2) (3rd ed. 1977). A presumption of competency attends a witness, and the burden of proving incompetency is upon the party objecting. Chambers v. State, 418 So.2d 948 (Ala.Cr.App.1982). “The discretion of a trial judge as to the competency of a witness is of a well nigh irrevisable nature.” Chambers, supra; Smith, supra.

After a careful consideration of the record in this regard, we find that the trial court did not abuse its discretion in determining that the prosecutrix was competent to testify.

Appellant complains of two instances in the state’s closing argument wherein the prosecution made prejudicial comments to the jury.

In the first instance, the prosecution referred to appellant as the “terror of Cottonwood.” Even though we have held that such argument is highly improper, Liner v. State, 350 So.2d 760 (Ala.Cr.App.1977), we find no reversible error since appellant’s objection was promptly sustained and the jury was instructed on what they were to consider.

In the second instance, the trial court sustained appellant’s objection. Appellant did not move the trial court to exclude the comment or instruct the jury to disregard it. Consequently, no adverse ruling exists from which the appellant may appeal. Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980).

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Ronnie M. JOHNSON v. STATE.
    4 Div. 136.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1085.

      Eric A. Bowen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for writ of error eoram nobis. Johnson’s conviction for theft of services in the second degree was affirmed in Johnson v. State, 421 So.2d 1306 (Ala.Cr.App.1982).

Johnson argues that the State did not prove that the services stolen exceeded $100 in value necessary for second degree theft. The key to establishing the value of the long-distance telephone calls Johnson charged to Bobby Graham is the date when Graham revoked his permission authorizing Johnson to charge calls to his home telephone number. At trial Graham testified that on November 16,1980, he told Johnson not to charge any more calls. At the coram nobis hearing, Graham testified that he notified Johnson the day he received his November 16th telephone bill. He did not remember the exact date but it could have been as late as December 25th. He also stated that he could not testify that he revoked permission prior to Christmas day. That statement conflicts with Graham’s testimony at trial and with his other testimony at the coram nobis hearing.

Johnson’s petition was properly denied for several reasons: (1) The record reveals no clear, full, and satisfactory proof extending beyond a mere balancing of the probabilities to clearly and convincingly satisfy the trial court on the merits of his argument. Corley v. State, 397 So.2d 223 (Ala.Cr.App.), cert. denied, Ex parte Corley, 397 So.2d 225 (Ala.1981).

(2) The issue of the sufficiency of the evidence was considered and decided on the original appeal. By raising certain challenges or objections to an issue on direct appeal, a petitioner is effectively precluded from asserting additional grounds of challenge on collateral attack of the same judgment, where the newly asserted grounds could have been discovered with the exercise of reasonable diligence at the time of trial or direct appeal. Thigpen v. State, 374 So.2d 401, 403 (Ala.Cr.App.), cert. denied, Ex parte Thigpen, 374 So.2d 406 (Ala.1979).

(3) The fact that there is no newly discovered evidence is highlighted by appellate counsel’s admission at oral argument that what Graham really intended to say could have been discovered by effective cross examination. Evidence is not considered newly discovered where a failure to thoroughly examine a witness prevents the earlier discovery of new or different testimony. Rains v. Ethridge-Atkins Motor Co., 221 Ala. 160, 162, 127 So. 905 (1930); Central of Georgia Ry. Co. v. Johnson, 2 Ala.App. 501, 504, 56 So. 756 (1911). Such a failure does not constitute the exercise of reasonable diligence. Gary v. State, 29 Ala.App. 380, 382, 196 So. 289 (1940).

“A new trial will not be granted to permit a witness to testify to facts forgotten or overlooked by him, or to which his attention was not called, when giving his testimony at trial. Legal diligence requires that a witness be examined fully and specifically as to his knowledge of all the matters in controversy; and the case must be a very strong one which will justify a new trial on the ground of newly discovered evidence, where the witness was in fact used on the trial of the case.” 66 C.J.S. New Trial § 104 (1950).

See also 24 C.J.S. Criminal Law § 1454d (1961) (“the subsequent recollection by a witness as to some fact omitted from his testimony or incorrectly stated therein is not ordinarily ground for a new trial; nor will a new trial be granted if the proper questions had been put to him”).

(4) Coram nobis does not lie to enable a petitioner to question the merits of a case or to correct an error of fact which has been adjudicated, even though wrongfully determined. Divine v. State, 285 Ala. 488, 492, 234 So.2d 28 (1970). The writ is not available to review questions of fact which have been tried beforehand. Henderson v. State, 45 Ala.App. 143, 144, 227 So.2d 140 (1969).

The judgment of the circuit court denying Johnson’s petition for writ of error coram nobis is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Rickie Melvin WILLIAMS v. STATE.
    6 Div. 51.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1243.
    Martha E. Williams, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted on a jury trial under an indictment that charged in pertinent part:

“... Rickie Melvin Williams ... did solicit, request, command or importune Kevin M. Wilson to engage in conduct constituting the crime of murder (Title 13A-6-2 of the Code of Alabama) with intent that such person engage in such conduct in violation of Title 13A-4-1 of the Code of Alabama, ...”

New to the law of Alabama as of January 1, 1980, is Title 13A-4-1, which provides in § 13A-4-l(a):

“A person is guilty of criminal solicitation if, with the intent that another person engage in conduct constituting a crime, he solicits, requests, commands or importunes such other person to engage in such conduct.
“A person may not be convicted of criminal solicitation upon the uncorroborated testimony of the person allegedly solicited, and there must be proof of circumstances corroborating solicitation and the defendant’s intent.”

The undisputed evidence discloses the startling fact that Henry Reaid, appellant’s stepfather since appellant’s childhood, was murdered on or about July 1, 1982, by defendant’s mother, Madge Reaid, and defendant’s brother, Greg Williams, who were thereafter indicted and convicted of murder, prior to the trial of the instant case.

Three issues are presented on appeal. In one, appellant contends that the trial court was in error in admitting in evidence a statement taken from defendant “in violation of his Miranda rights.” In another, he says the court erred in not granting defendant’s motion for a change of venue. We have no difficulty in deciding each of such issues against appellant and see no need for a further discussion thereof other than as we will have occasion to consider the statement taken from defendant, in our discussion of the only other issue presented on appeal which is as to the question of the sufficiency of the evidence to support a conviction.

As to that issue, we cannot properly fore-go a careful analysis of the evidence, particularly the testimony of Kevin M. Wilson, the testimony of the defendant, and the statement made by defendant to investigating officers and recorded on a tape, of which a transcribed copy is before us on appeal.

Kevin Wilson testified that on an afternoon in October 1981, the appellant came by Kevin’s house in a motor vehicle and picked Kevin up and drove him to Perry’s Barbecue, after the appellant’s relating to Kevin the fact that his mother wanted to see Kevin “about a job.” We quote some material parts of Kevin’s testimony:

“A. Yeah, we had a conversation. He was telling me his mom wanted to see me about a job.
“Q. And, did he tell you anything else that day?
“A. We just went and met his mom.
“Q. Okay. Did he say anything else to you when he picked you up, besides his mama wanted to see you about a job?
“A. That was about it.
“Q. What, if anything, is the next thing that you did after he told you that?
“A. We went to see his mom.
“Q. Where was she?
“A. She was at that restaurant.
“Q. Okay. Was she inside or outside when you first—
“A. I don’t know. When I was there, we sat down and she came up and he introduced us, and, you know—
“Q. Who all was present when you first saw Madge [defendant’s mother]?
“A. Rick and Kathy and Madge and me.
“Q. Now, who is Kathy?
“A. That is Rick’s [appellant’s] wife.
“Q. And, did Madge sit down at the booth with you?
“A. Yeah, she sat across from me.
“Q. Okay. Did you have a conversation at that time with Madge and with Rickie?
“A, No, it was kind of quiet at first. They got up to play pinball or something. Anyway, she sat there and just started going into detail about what she wanted.
“A. It was Rick, Kathy, and me, and his mom, but then they got up and left and just left me and his mother there talking.
“Q. [By counsel for the State]: Just tell the ladies and gentlemen of the jury what your conversation was with Madge at that time?
“A. Well, they wanted me to knock him off.
“Q. Okay.
“A. She wanted it done right. She wanted to tell me what a butt hole he was. Excuse me. Just how miserable her life was and she was about — she worked so long for everything, and she was just about to lose all of it.”

The witness continued his testimony by making it clear that" defendant’s mother definitely and positively wanted the witness to arrange for the killing of her husband. His testimony then continued as follows:

“Q. Now, how long were you talking with Madge?
“A. A while. I don’t know how long, but it was a while.
“Q. Now, did Rickie and Kathy come back to the table?
“A. Yes.
“Q. And, were y’all discussing, at that time, the job that she wanted you to do?
“A. No, she got quiet then. We didn’t talk about it any more when they came back over.
“Q. [By counsel for the State]: What did she tell you about during that conversation at Perry’s Barbecue about the pri- or attempts.”

Kevin Wilson made it clear throughout his testimony that defendant did not expressly “solicit, request, command or importune” Kevin Wilson to kill Henry Reaid, that this was done by Madge Reaid solely, out of the presence of the defendant. Defendant made it clear by his testimony on direct examination that no such solicitation, request, command or importunity was expressed by him to Kevin Wilson. For its contention that the evidence was sufficient to support the verdict finding defendant guilty, appellee apparently relies, as it apparently did on the trial, upon the cross-examination of defendant, and upon a written statement he made to law enforcement authorities after the death of Henry Reaid. It is readily understandable that the prosecution looked upon his statement as an incriminating one, and defendant himself, during his cross-examination, when questioned about the statement, referred to it as an incriminating statement, when he said: “Sir, I didn’t intend to incriminate myself when I gave that statement. I did intend to incriminate my mother and my brother.” Unquestionably, the statement is of a highly incriminating nature in that it incriminates the appellant as to knowledge of the fact that his mother and his brother planned to kill defendant’s stepfather and that by affirmative action on defendant’s part, which he failed to take, he could have prevented it. However, whether it constitutes evidence of criminal solicitation beggars a categorical answer without a careful consideration of the claimed incriminating part of defendant’s testimony on cross-examination and of the statement he made to the officers soon after the death of his stepfather. We now refer to parts of said testimony and such statement of defendant that would seem to come closer to evidence incriminating defendant than other parts of said testimony and such statement. During cross-examination, the defendant testified:

“Q. How many people did you tell the Sheriff back on July 6th, the day after your step-father’s funeral — how many people did you tell the Sheriff that you had contacted about killing Henry?
“A. Only one other.
“Q. So, two all total, is that correct?
“A. That is what I told him.
“Q. And, one of those was Jimmy Berry and the other one was Kevin Wilson, is that correct?
“A. That’s true.
“Q. But when Sheriff Roden asked you what did you tell Kevin, I just told him that Mama wanted to talk to him, that she had a job for him to do. And, he asked you what was that job, and you said, mainly of the murder of Henry. Is that what you told Mr. Roden that morning?
“A. Yes, sir, that is what I told him.
“Q. But now you say that is not how it is, is that correct?
“A. That is right.”

We now turn to the most nearly incriminating part of defendant’s statement that he made to Sheriff Roden:

“Q. What did you tell Earl [otherwise identified as Kevin Wilson]?
“A. I just told him that Mama wanted to talk to him that she had a job for him to do.
“Q. What was that job?
“A. Mainly of the murder of Henry.
“Q. Tell me the conversation that you and Earl Wilson had.
“A. I just told you the only thing that I said to him was that Mama had a job that she wanted him to take care of.
“Q. That was to kill Henry Reaid?
“A. Right, other than that I never had any other conversation with him.
“Q. That was the summer of ’81?
“A. Yes.
“Q. Has it been discussed with you any more since then?
“A. No I’ve washed my hands from it for over a year now. I told Mama and my brother both that if they did it they’d get caught. I wanted no part of it.
“Q. How long has the planning that you know of of the murder of Henry Reaid been going on?
“A. Ever since late ’79.
“Q. And only two other people that you contacted about killing Henry Reaid was Jim Berry and Earl Wilson. Is that right?
“A. That’s right.
“Q. Is that right?
“A. That’s true.
“Q. Rickie, is there anything else that you need to tell me about this murder?
“A. Not that I can think of. I suspected that maybe Greg had done it because the way he was acting up at the funeral home. I should have said something.
“Q. How many tries have your mother and your brother Greg, and your mother, Madge, do you know how many people that have been contacted about killing Henry?
“A. Just the two that I told you, that’s all.

We can readily see a reasonable basis for the contention that what we have quoted above when considered with the other circumstances set forth above tended at least to constitute self-incrimination by defendant of the crime of criminal solicitation of Kevin Wilson by defendant’s mother, but, in our opinion, such a conclusion is not compelled. On the other hand, we see a basis for a reasonable conclusion that none of what he said constituted a refutation of what he and Kevin Wilson had otherwise said in their testimony to the effect that appellant did not solicit, request, command or importune Kevin Wilson to kill Henry Reaid.

It should be made clear that however valuable to the prosecution or to the defense may have been the testimony of defendant as to the solicitation by defendant in 1979 of a person other than Kevin Wilson to kill Henry Reaid, it would have no legal bearing upon the charge that he solicited Kevin Wilson for that purpose. Furthermore, it should be noted that in 1979 there was no such crime in Alabama as criminal solicitation, not until January 1, 1980.

Even if a jury issue was presented as to defendant’s guilt of criminal solicitation, we are persuaded that the weight of the evidence is not in favor of the State as to the guilt of appellant of criminal solicitation.

“The rule is well settled in this State that a verdict of conviction will not be set aside on the ground of the sufficiency of the evidence to sustain the conviction, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Stewart v. State, 38 Ala.App. 365, 84 So.2d 658; Evans v. State, 39 Ala.App. 404, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.” Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969)

The principle of law just quoted has been consistently followed in Alabama. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979). In accordance with such principle, we conclude that defendant’s motion for a new trial on the ground, inter alia, that the verdict was strongly against the weight of the evidence should have been granted and that the trial court was in error in overruling the defendant’s motion for a new trial. Any reluctance in so deciding by reason of Rule 45B, A.R.A.P., precluding our consideration, except in those cases in which the death penalty has been imposed, of questions or issues not presented in briefs on appeal, is dissipated by the pronouncement of Chief Justice Torbert, with the concurrence of all associate justices, in Ex Parte State (Re: Hoppins v. State) 436 So.2d 29 (Ala.1983) that Rule 45B was not intended “to restrict the authority of the Court of Criminal Appeals to consider obvious errors.” Furthermore, we believe that, although the ruling of the trial court is not precisely and specifically made an issue in appellant’s brief, such issue is embraced within the expressly asserted ground in appellant’s brief of an “insufficiency of the evidence to support a conviction,” and the argument in appellant’s brief pertaining to such ground.

The judgment of the trial court should be reversed by reason of its denial of defendant’s motion for a new trial and the case remanded for another trial. We make no determination at this time to the effect that a jury issue as to defendant’s guilt was not presented by the evidence.

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

REVERSED AND REMANDED.

All the Judges concur, except BOWEN, J., who dissents.


author: HUBERT TAYLOR, Judge.

text:
    James Irvin TYREE, alias v. STATE.
    6 Div. 997.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1096.

      Michael C. Cornwell, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Attempting to obtain possession of a controlled substance (Talwin) by use of a forged prescription; sentence: twenty-five years’ imprisonment and $25,000 fine.

Appellant was convicted under § 20-2-70(a), Code of Alabama 1975, for the December 5, 1981, attempt to possess Talwin by use of a forged prescription. He had previously been convicted of violating the above statute and, thus, was sentenced under § 20-2-76, Code of Alabama 1975.

On December 3, 1981, Dr. E.C. Brock examined appellant at his office in Tuscaloosa and prescribed for him twelve fifty-milligram tablets of Talwin to relieve the pain of a back sprain. He also wrote a prescription for a back brace. Brock had not seen appellant as a patient since that date and had not written any other prescriptions for him. Brock identified a prescription form used by his office for writing prescriptions. Although his name appeared on the prescription, Brock testified that it was not his signature. He stated that he did not write the prescription, which was for twenty fifty-milligram Talwin tablets. It was refillable once. Brock stated that he usually prescribed twelve or twenty-four Talwin tablets per prescription. He noted that a patient would have access to the prescription form pads if one was inadvertently left in an examination room. He also stated that it was possible for two prescription forms to stick together and one be unknowingly removed from the pad.

John Gunnels, a pharmacist at Harco Drugs in Northport, testified that between 8:00 and 8:15 p.m. on December 5, 1981, appellant entered the drugstore and presented the prescription for his back brace. The drugstore did not carry the item and Gunnels returned the prescription to appellant. Gunnels then left to use the restroom and upon returning was told by the cashier that he had a prescription to fill. The prescription was for twenty Talwin tablets, which Gunnels stated was a controlled substance. Gunnels asked the cashier who had presented the prescription. The cashier told him that appellant, who was sitting in a nearby chair, had presented it. During this period of time, there were no other customers in the store. Gunnels noticed that the dosage directions were unintelligible and that although Brock’s name was signed on the prescription, he recognized that it was not his signature. The quantity also appeared to have been altered. Gunnels called the police. Upon their arrival, Gunnels then called the county narcotics unit. Appellant was placed in the police car until the narcotics agent arrived.

Tuscaloosa County Sheriff’s Narcotics Unit investigator Harry Montgomery testified that he responded to Gunnels’ call on December 5,1981. Upon arriving he recognized appellant, who was being held in the patrol car by Northport police officer Lewis Brown. Montgomery talked to Gunnels and received from him the forged prescription appellant had earlier presented. Shortly thereafter, Montgomery removed appellant from the patrol car, explained the situation to him, and advised him of his Miranda rights. He then transported appellant to the county jail.

Tuscaloosa County Circuit Court Clerk Doris Turner testified that she was custodian of the records of the Tuscaloosa County Circuit Court. She identified a certified copy of a judgment entry reflecting a misdemeanor possession of marihuana conviction against appellant on June 5, 1980, as being under her custody and control. The exhibit was admitted into evidence without objection.

Investigator Montgomery was recalled as a witness and testified that he was familiar with the facts of appellant’s prior conviction. He identified appellant as the one to which the previous admitted judgment entry pertained. Montgomery’s testimony concluded presentation of the State’s case.

I

Appellant contends that the trial court erred in denying his motion to quash the indictment based specifically upon the ground that he was denied a speedy trial under the provisions of § 15-9-80, et seq., Code of Alabama 1975.

This issue has been answered adversely to appellant by this court in Morning v. State, 416 So.2d 780 (Ala.Cr.App.1982), and McAlpin v. State, 397 So.2d 209 (Ala.Cr.App.), cert. denied, 397 So.2d 211 (Ala.1981). See generally Seymore v. State, 429 So.2d 1188 (Ala.Cr.App.1983); Cheatham v. State, 431 So.2d 1350 (Ala.Cr.App.1983).

II

Appellant argues that the trial court erred in admitting evidence of his prior conviction. Appellant was indicted for violating § 20-2-70(a), supra, and sentenced under the enhanced punishment section. § 20-2-76, supra. Appellant filed no demurrer to the indictment before or within the time granted by the trial court after his arraignment and plea thereto. Consequently, there is nothing preserved for our review. Kidd v. State, 398 So.2d 349 (Ala.Cr.App.), cert. denied, 398 So.2d 353 (Ala.1981).

Nevertheless, no error was committed in alleging the prior conviction and admitting proof thereof at trial. In Luker v. State, 424 So.2d 662 (Ala.Cr.App.1982), this court reviewed its previous decisions on the above issue and held “that the prior offense may be alleged in the indictment, in which event it must be proved at trial, but the allegation of the prior offense in the indictment is not mandatory.” Id. at 664. See also Canada v. State, 421 So.2d 140 (Ala.Cr.App.1982).

III

Appellant challenges the sufficiency of the State’s evidence. However, in brief he asserts a ground for challenge not raised at trial. Consequently, we limit our review to that alleged and ruled upon at trial.

Appellant argues that the State did not present evidence to prove that on December 5 he did not know that the prescription presented to Gunnels was not the prescription issued by Dr. Brock on December 3.

It would be difficult if not impossible for the State to prove that which appellant contends is essential to establish. It would take an admission of guilty knowledge by appellant to establish directly that which he asserts should have been proven. Such would have been in direct conflict with his plea of not guilty.

Nevertheless, the evidence adduced at trial clearly established that appellant had knowledge that the prescription presented to Gunnels on December 5 was a forgery. The testimony of Dr. Brock and Gunnels as well as admission of the forged prescription unequivocally established appellant’s guilty knowledge. No error was committed by the trial court in denying appellant’s motion to exclude. See Arnold v. State, 340 So.2d 873 (Ala.Cr.App.), cert. denied, 340 So.2d 877 (Ala.1976); St. John v. State, 55 Ala.App. 95, 313 So.2d 215, cert. denied, 294 Ala. 768, 313 So.2d 218 (1975); Code § 20-2-70(a), supra.

IV

Appellant contends that the trial court committed reversible error in its oral charge to the jury. In brief, he centers his argument upon three instances.

A

As to the first instance argued in brief, appellant failed to object at trial to the alleged erroneous charge. Thus, he has failed to preserve the alleged error for appellate review. Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980).

B

Next, appellant asserts that the trial court over-emphasized to the jury its choice of finding him guilty. He argues that the trial court repeatedly made reference to such without equally informing the jury of its alternative choice of finding him not guilty.

A careful review of the entire oral charge reveals appellant’s contention to be without merit. The number of instances where the trial court referred to the jury’s choice of finding appellant guilty or not guilty were near identical. The oral charge does not illustrate any bias or prejudice by the trial court against appellant or any direct or indirect attempt by the trial court to influence the decision of the jury. In fact, a close reading of the oral charge evidences the trial court’s impartiality to appellant’s cause. Thus, taken as a whole, we find that the trial court did not overemphasize to the jury its choice of finding appellant guilty.

C

Contrary to appellant’s contention, the trial court did not shift the burden to appellant to prove that he had no knowledge of the contents of the forged prescription. We quote from the trial court’s oral charge:

“Now, ladies and gentlemen, let me say this to you, one thing I should point out. If he took this piece of paper to the druggist on this occasion and had no idea what it was, didn’t know what he had in his hand or didn’t know what the nature of the paper was, well, of course, in the event you should determine among yourselves he didn’t know what he had or what he could get with it, and that he was innocent of any wrong doing, that he didn’t have any guilty knowledge when he presented the paper in question to the druggist on this occasion, had no reason whatsoever to believe that this prescription would get the controlled substance, well, that would, of course, could justify you in finding him not guilty, ... You analyze the transaction that took place on this occasion and you determine from all the circumstances whether or not this man knew what it was, if the paper was in fact a genuine prescription, what he could get for it. You have heard the evidence in the case. The State has presented evidence to you to indicate it was a phony, that it was a forged prescription, was not a valid prescription. Well, you are to determine whether or not it was a valid prescription. You decide just what went on in the defendant’s mind when he presented this paper. Of course, you can’t photograph a person’s mind, so to speak. That sounds rather trite to even say it, but you the jury have a right to consider all the facts and circumstances surrounding the alleged transaction made the basis of this prosecution. You determine from those facts and circumstances what went on in the defendant’s mind on this occasion.”

Based upon the above quoted portion of the trial court’s oral charge, we find no error in such as alleged by appellant.

V

Lastly, appellant contends that the trial court erroneously handled his sentencing hearing. He asserts that it was handled in a “perfunctory manner” as the trial court had “prejudged” the question of his sentence.

A

The transcript of the sentence hearing consisted of twelve pages in the record. In our estimation, about one-half of such consists of arguments made by counsel for appellant. The remainder is responses thereto by the State and statements by the trial court. Appellant made a lengthy and thorough plea for leniency at the hearing. He offered no evidence other than his argument. The record discloses no attempt by appellant to produce other evidence or any prohibition by the trial court in offering such. In fact, the trial court was receptive to whatever appellant offered.

B

The trial court fully and thoroughly explained to appellant its concurrence with the State’s sentence recommendation, which was initially requested by appellant himself. The sentence imposed was within the limits set by the governing statute. Thus, it is not excessive nor subject to our review. Norwood v. State, 424 So.2d 1351 (Ala.Cr.App.1982); Tombrello v. State, 421 So.2d 1319 (Ala.Cr.App.1982); Blaylock v. State, 411 So.2d 1299 (Ala.Cr.App.1982). Furthermore, adoption of the sentence recommendation of the State by the trial court does not lead to the conclusion that it had “prejudged” the matter of punishment prior to sentencing. In fact, the State had not made a recommendation to the trial court until appellant inquired about it. While it can be stated with some degree of certainty that the trial court had given judicious thought and consideration to the matter of appellant’s sentence prior to his sentencing hearing, adoption of the State’s recommendation does not support appellant’s contention that such had been predetermined.

C

Contrary to appellant’s assertion in brief, we find full compliance with the rules of criminal procedure pertaining to sentencing hearings. A.R.Crim.P. (Temp.) 2(b)(2), 3(a)(2), 3(c), 6(b)(1).

D

Finally, nothing was presented at the sentencing hearing in regard to whether appellant would be considered, or eligible for probation. Such may have been noted in his presentence report, but it was not made a part of the record on appeal. Appellant did not specifically raise the matter at his hearing. Consequently, from the posture of the record before us, there appears to have been no issue raised concerning such. Thus, appellant’s reliance upon Graffeo v. State, 412 So.2d 312 (Ala.Cr.App.1982), is unfounded.

After a complete review of the record, we find no error on the part of trial court.

There appearing no errors on review of the record filed before us, this cause is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    Wilmer Lester CARSON v. STATE.
    1 Div. 507.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 16, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1135.

      Donald E. Brutkiewicz, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

On June 24, 1982, a Mobile Circuit Court jury found the appellant guilty of manslaughter. He was sentenced to three years’ imprisonment.

A difference of opinion arose at the Beat of the Bay Social Club in Mobile, between the appellant Wilmer Carson and the deceased James Sewell on the night of January 10, 1982. Sewell drew a gun; Carson managed to wrest the gun away from Se-well and in addition he pulled his own gun. Sewell then ran from the club and the appellant fired into the air while still inside the building. He then went to the door of the club and shot Sewell. The appellant followed Sewell out into the parking lot and shot him two more times. Having emptied both guns, he then hit the victim twice in the face with a gun, also allegedly in self defense. The appellant then left the scene by car. The forensic pathologist who performed an autopsy on Sewell testified that any one of the victim’s three bullet wounds could have caused death.

Lieutenant Vincent Richardson of the Mobile Police Department testified that on January 12, 1983, he and Sergeant John Boone went to the “intensive surgical” area of the University Medical Center to attempt to get a statement from James Sewell. The lieutenant described the condition of the victim as “serious” when he arrived at the hospital. The witness stated that Sewell was able to converse but “... he didn’t talk all that loud or rush through anything.” (R. 130) Richardson said the victim identified a picture of the appellant as that of the person who shot him, that picture having been among five other pictures.

The witness stated that after Sewell identified the appellant’s picture, the victim was told by Richardson that he was in “very serious condition.” Sewell indicated to the witness that he knew he was in very serious condition and he then made a statement recorded by the officers present. The statement described the circumstances surrounding the shooting and identified the appellant as the man who had wounded Sewell. Lieutenant Richardson testified that when he asked the victim if he was telling the “absolute truth” James Sewell replied “Yes, sir.”

Appellant’s sole issue on appeal is whether or not the comments made by the victim to Lieutenant Richardson before he died were properly admitted into evidence. Appellant claims that the statement Sewell made at that time does not qualify under the dying declaration exception to the hearsay rule, contending that the requisite state of mind of the victim was not proven.

It is true that in order to introduce a dying declaration into evidence without violating the rule against hearsay, it must be shown that the declarant believes his death will occur soon. C. Gamble, McElroy’s Ala bama Evidence § 248.01(1) (3d ed. 1977). However, it is not necessary that the declar-ant’s state of mind be proved by his own words. Id.

As this Court has said:

“In determining if a declaration should be allowed in evidence, the trial judge should consider statements of the deceased, the nature and gravity of his wounds, his physical condition, the length of time between the infliction of the wound and death, the cause of death, and all other facts tending to prove the state of mind of the deceased at the time the declaration was made. Bell v. State, 402 So.2d 1 (Ala.Cr.App.1981).

After a careful consideration of all the circumstances surrounding the statement made by the victim, we find that the trial judge correctly applied the law in allowing the declaration into evidence.

We find it unnecessary to engage in semantic debate over whether Officer Richardson’s characterization of Sewell’s condition as “very serious” rather than “critical” rendered the victim’s subsequent statement inadmissible as a dying declaration. It is common in our society to avoid direct mention of death and dying; any euphemism seems to be preferred. The manner of speech of the witness to the declaration in discussing the condition of the dying person may also be considered, since pauses and hesitations sometimes take the place of the “unspeakable” fact.

Only 38 hours after Lieutenant Richardson received his statement, Sewell died from the wounds inflicted by the appellant.

We find that because of the extent of his injuries, his expressed realization of the severity of his condition, and the short time within which he died after making his statement, the deceased was indeed cognizant that his death was imminent when he spoke to Richardson.

When determining whether the statement of a decedent qualifies as a dying declaration, this court will not overturn the finding of the lower court if sufficient evidence sustains the ruling. Bell, supra. Thus, the judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Leon JOHNSON v. STATE.
    2 Div. 366.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1227.

      William L. Utsey and William R. Christopher, Butler, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

This is an appeal from the denial of a petition for writ of habeas corpus. Johnson filed the petition to contest his extradition to the State of Mississippi on charges of capital murder and aggravated assault on a police officer.

Johnson argues that the complaint and attached documents do not constitute a sufficient affidavit under Alabama Code Section 15-9-3 and Section 15-9-33 (1975), and do not support a finding of probable cause.

The petition was properly denied. “(W)hen a neutral judicial officer of the demanding state has determined that probable cause exists, the courts of the asylum state are without power to review the determination.” Michigan v. Doran, 439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521 (1978).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Albert LEWIS v. STATE.
    3 Div. 734.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1239.

      William E. Skinner of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appeal is from a judgment of conviction and sentence for robbery in the first degree. The alleged victim' was Frank Hicks, and the indictment tracks the language of two sections of Alabama Criminal Code defining the crime as follows:

“§ 13A-8-43
“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.
“§ 13A-8-41
“(a) A person commits the crime of robbery in the first degree if he violates section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or

The indictment further alleged the deadly weapon or dangerous instrument with which defendant was armed was “to-wit: a pistol.”

Both the alleged victim and the defendant testified profusely on the trial. According to the undisputed testimony, about 1:30 A.M. on March 16, 1982, the alleged victim, Frank Leroy Hicks, who operated a flower shop at 93 Lee Street in the city of Montgomery had gone to the nearby Dutch House Restaurant on Lee Street, where he purchased a “soda,” and just after he left the door of the restaurant the defendant, with a pistol in his hand, told Hicks to give him his wallet. Mr. Hicks rushed back inside of the Dutch House and was followed closely by the defendant, pistol in hand. The defendant barely entered the restaurant and then departed in the direction of the Trailways Bus Station. The victim or waitress in the restaurant, or both, called the police as defendant was in the process of leaving the restaurant. The police located the defendant at the Trailways Bus Station, placed him under arrest and transported him to the Police Headquarters. A key was found in the possession of defendant that appeared to be a “locker key.” The defendant returned with police investigators to the Trailways Bus Station. The key fit “locker No. 202.” Inside the locker there was a loaded black pistol. Also in the locker were a pistol holster and a belt. That the defendant was intoxicated at the time of the incident involved was clearly established by the evidence, but there is some disagreement as to the extent of his intoxication.

One of the issues presented on appeal pertains to the question of the extent of defendant’s intoxication. Appellant urges that defendant was so highly intoxicated at the time of his arrest and transportation to police headquarters that the consent there given by him to the police investigators for them to search the locker for which a key was on his person was invalid. Defendant’s motion to suppress evidence of the results of that search, the pistol, the holster and the belt, was submitted on the testimony of Police Investigator L.H. Brown, who during cross-examination by defendant’s attorney on the motion to suppress, testified:

“Q. So you do concede that he was intoxicated?
“A. Yes, sir.
“Q. Highly intoxicated?
“A. I would say, yes. He was highly intoxicated, but he was able to understand his rights that night.
“Q. Oh, you think he was?
“A. Yes, sir.
“Q. You think he was able to give voluntary consent to search the locker since you said he said go ahead and search him since it did not belong to him?
“A. I feel like that at that time, Mr. Lewis appeared to me to have a drinking problem and this was a condition which was not too uncommon to him and he functioned in this realm quite a lot.
“Q. So you are saying that you recognized him as being a person with a drinking problem? An alcoholic?
“A. He seemed to me to be that type. Yes, sir. Because he was able to function enough to be able to go about his business on the street without falling down and running into buildings and stuff like that which would get him arrested on a public drunkenness charge.”

We agree with the conclusion of the trial court that the defendant was not so intoxicated that he could not have given a valid consent to the search of the locker and that his valid consent to such search dispensed with any necessity for a search warrant to preserve defendant’s Fourth Amendment right to security against unreasonable search and seizure. Furthermore, we are of the opinion that the exigencies of the circumstances forbade the delay that at that time of night would have been required to obtain a search warrant.

Another issue presented by appellant is based on the trial court’s refusal of defendant’s requested written charge IV as follows:

“I charge you ladies and gentlemen of the jury that in your deliberations on the question of Mr. Lewis’ guilt or innocence, you may consider the lack of motive to commit the crime charged in arriving at your verdict.”

In refusing Charge IV, the court noted that as to it and other charges the charges were “substantially covered in Court’s oral charge.” We note that in the court’s oral charge relative to the necessity that the State must prove by the evidence beyond a reasonable doubt that defendant was guilty, it said:

“... That is a burden the State has of proving to you, that, beyond that doubt for which there is a reason. The lack of evidence can furnish such a reason or lack of a reason for him to do it. Lack of motive, we call it, some time, can generate such a doubt....”

We think that the principle set forth in defendant’s requested Charge No. IV was covered by the court’s oral charge. Furthermore, the use of “You may consider the lack of motive,” instead of “You may consider any lack of motive,” tends, at least, to assume that there was a “lack of motive,” and for that reason alone the charge should not have been given.

Another contention of appellant is that the trial judge erred in failing to instruct the jury on any lesser included offenses contained within the offense of Robbery in the First Degree. Appellant candidly recognizes the authority of Lidge v. State, Ala.Cr.App., 419 So.2d 610, 613 (1982), cert. denied, 419 So.2d 616, which we follow and apply what was held therein to the instant case, that the “proper way to raise the question of the failure of a trial judge to charge on a lesser included offense is by a written requested charge” and that such issue “has not been properly preserved for review” if, as here, the defendant has not submitted “a written requested charge concerning the omitted matter.”

As a final contention, appellant urges that the trial judge “erred to the substantial prejudice of the Defendant when he gave confusing instructions to the jury relating to the defense of intoxication as it applied to the offense of Robbery in the First Degree.” Appellant directs attention to the fact that in the course of the deliberations of the jury, it was made known to the trial court that the jury desired to ask a question. The transcript shows that before the jury returned to the courtroom to ask the question, the following occurred:

“THE COURT: The Jury has asked a question: ‘Does the asking for the wallet for identification while waving a pistol constitute robbery?’ I am just going to tell them what robbery is again.
“MR. CARTER: Judge, that is why I was saying the intent element is so vital in this case.
“THE COURT: Well, I am going to define robbery for them again. (At this time, the Jury returned to the courtroom, where the following was had and done of record.)
“THE COURT: Ladies and gentlemen, let me thank you for communicating with us in this way. This lets us formulate a response and discuss with the parties what the question is. The question is: ‘Does asking for the wallet for identification while waving a pistol constitute robbery?’ The best way for me to handle this is just to define it for you again and go over the definition as many times as you would like for me to.”

The court then proceeded to repeat substantially what it had stated in its oral charge to the jury, which is covered by approximately two transcript pages that ended with the court stating, “I hope I helped you.” The transcript shows that immediately following the quoted last sentence of the court, the following occurred:

“(At this time, the Jury retired to the Jury Room, and the following was had and done of record, outside the presence of the jury.)
“THE COURT: What says the State?
“MR. TRAEGER [Attorney for the State]: Fine.
“MR. CARTER [Defendant’s attorney]: Fine.”

In fairness to appellant, it should be noted that, notwithstanding the undisputed facts in the case as shown above, appellant stoutly denied in his testimony an intent to rob the alleged victim. His testimony was to the effect that he had had an alcohol problem while he was in military service in Vietnam that brought about an early discharge for him, that he had consistently been a patient at the VA hospital undergoing treatment for alcoholism, that he had been drinking on the night of the incident involved, that he saw Mr. Hicks as they both were near the Dutch House, that defendant at the time was in the process of transferring the pistol he had from a bag it was in “to put it under my shirt.” His testimony continues as follows:

“Q. What happened next, Albert?
“A. As I took the gun out of the bag to put it under my belt under my shirt, he began to look frightened at the sight of the gun. And so I told him that I was an FBI agent, and he looked even more frightened then. And so I told him, well show me some identification or you are under arrest; I am the FBI. And he made a frightened gesture and went inside the Dutch House. And as he did, I went in behind him. And there were two people and a woman and Mr. Hicks standing at the stool there, and she told me that do not come in here with that gun. So I told her, also, that I was an FBI agent and for them to stay there until I got back, that I was going to get another agent. And I left.”

The defendant made it reasonably clear from his testimony that his reason for stating that he was an FBI agent was to assure the victim and others that he had a legal right to have a pistol. He denied putting the pistol to the back of Mr. Hicks and denied any intentional or threatening use or display of the pistol. He was twenty-six years of age at the time of the trial and was supported as to his alcohol problem and as to the connection between it and his other faults and criminal conduct with the onset of his trouble in Vietnam. In sentencing the defendant to imprisonment for life, which the trial court was mandated to do by reason of two previous felony convictions, the court said:

“And I will note on the Record that you do have an alcohol problem and for whatever treatment they can give you to help you.”

The judgment of the trial court should be 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.


text:
    Lee A. LEWIS v. STATE.
    6 Div. 746.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1252.
    J.D. Terry and Michael C. Cornwell, Tuscaloosa, for appellant.,
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Appellant Lewis was indicted and convicted for rape in the first degree in violation of Alabama Code Section 13A-6-61 (1975). Sentence was thirty years’ imprisonment. Two issues are presented on appeal.

I

Our review of the record convinces this Court that Lewis’ defense that he was insane at the time of the crime was not established by overwhelming and uncontra-dicted evidence which entitled Lewis to an affirmative charge. The legal principles governing the burden and sufficiency of proof of insanity are collected and restated in Cunningham v. State, 426 So.2d 484 (Ala.Cr.App.1982). In that case we also reviewed the six cases in which the appellate courts of this state found that the jury’s verdict was contrary to overwhelming and conclusive evidence of insanity.

It cannot be disputed that Lewis has a history of mental disorders and drug abuse. The crime occurred on July 11, 1980. On June 18, 1979, the defendant was admitted to the Veterans’ Administration Hospital in Tuscaloosa and diagnosed by psychiatrist D. Gamboa as suffering from “schizophrenia, paranoid type” and “drug abuse”. However, on July 27, 1979, Lewis was “allowed to leave on IRREGULAR RELEASE, AMA, with no medication or followup given. He wasn’t considered a danger to himself or others, but it was felt that his treatment had not been completed.” Dr. Gam-boa had no opinion as to Lewis’ mental status on the day of the rape.

Lewis was readmitted to the hospital on June 28,1980, “with the admission diagnosis of schizophrenia, paranoid type by history.” Medical records show that Dr. J. Pandya diagnosed Lewis as suffering from drug dependence. On July 11, 1980, the day of the crime, Lewis was given a “REGULAR RELEASE — ADMINISTRATIVE with no medication or followup given. Veteran is competent for VA purposes.” In February of 1981, Dr. Pandya diagnosed Lewis as suffering from “antisocial personality, severe drug dependency multiple.” Dr. Pand-ya did not testify.

Psychiatrist J.E. Keeton examined and evaluated Lewis on June 30, 1980 — eleven days before the crime — and did not change the prior diagnosis of “schizophrenia paranoid type by history” although “there were aspects to this man’s problem that suggested another diagnosis to support this one and clarify the problem even better.” Dr. Kee-ton testified that schizophrenics have recovery periods and periods of remission followed by periods of reoccurrence of the symptoms. He was not asked and did not express an opinion that Lewis was suffering from a mental illness when the crime was committed.

Lewis testified that he did not remember anything about the rape or the confession he gave approximately four hours after the offense.

Although the State did not present any expert evidence of Lewis’ mental condition, it did introduce his confession wherein he gave a detailed account of the events and maintained that the sexual intercourse occurred at the request and with the consent of the victim. This confession and Lewis’ flight from the scene of the rape, when considered with the circumstances surrounding the commission of the crime, authorize the reasonable inference that the defendant was sane.

Even if the jury accepted the testimony of the experts, there remains the fact that no expert testified that Lewis was suffering from a mental disease or defect at the time of the crime. Here, there was simply no showing that Lewis lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law at the time of the criminal conduct. Alabama Code Section 13A-3-1 (1975). Lewis’ own expert testified that he would have periods of remission and recovery.

“There is no presumption that fitful and exceptional attacks of insanity are continuous — a proposition manifest in itself. It is only insanity of a chronic or permanent nature which, on being proved, is presumed to continue.-Whart.Cr.Ev. Section 730. The rule, therefore, prevails that where an insane person ‘has lucid intervals, the law presumes the offense of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper.’-1 Russell on Cr. 11; 1 Hale, 33-4.” Ford v. State, 71 Ala. 385, 395 (1882).

See also Cogbill v. State, 8 Ala.App. 223, 227, 62 So. 406 (1913).

For these reasons, the refusal of Lewis’ requested affirmative charge was not error. Cunningham, supra.

II

Lewis’ requested jury charge on the lesser included offense of sexual abuse in the first degree was properly refused because the evidence is undisputed that there was penetration, contrary to Lewis’ argument on appeal. Under the evidence presented at trial, there was no reasonable theory to support any lesser included offense. At trial, the issue was whether Lewis was legally responsible for the rape, not whether or not there was a rape. Therefore, the instruction was properly refused. Myers v. State, 401 So.2d 288, 291 (Ala.Cr.App.1981). See also Chavers v. State, 361 So.2d 1106 (Ala.1978); Riddle v. State, 41 Ala.App. 544, 139 So.2d 347 (1962).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Danny Emmett WALDROP v. STATE.
    5 Div. 781.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1254.
    Margaret Y. Brown, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Appellant was indicted and convicted of theft of property in the first degree under § 13A-8-3, Code of Alabama 1975. A sentence of life imprisonment was imposed by the trial court pursuant to the habitual offender statute. Because appellant questions the sufficiency of the evidence, we detail the state’s evidence which was sufficient to sustain appellant’s conviction.

Sergeant Roger L. Motley of the Opelika Police Department testified he owned a 1976 Ford Maverick in December of 1981. The automobile was white over brown in color and bore the tag number GFM 383. On December 29, 1981, his vehicle was parked on the McCarley-Folds used car lot in Lee County, Alabama, where he had placed it for sale. Sergeant Motley did not actually see his automobile on the lot on December 29,1981, but knew of its presence there.

On December 30, 1981, after a conversation with Mr. Glen Folds, Sergeant Motley filed a report with the Opelika Police Department stating his vehicle had been stolen. Sergeant Motley next saw his automobile on February 12, 1982 at the military police headquarters on Maxwell Air Force Base in Montgomery. He stated that the automobile still bore the tag number GFM 383.

Glen Folds testified he was employed by McCarley and Folds Used Cars in Opelika, Alabama. Mr. Folds, who operated the lot, stated that on December 29,1981, he had on the lot for sale a vehicle owned by Sergeant Motley. Approximately twenty other vehicles were also present on the lot for sale.

Folds stated it was his daily practice to crank each automobile and then leave the keys in the vehicles for easy access to the customers. He specifically recalled seeing Sergeant Motley’s vehicle, with the keys inside of it, on the lot at 8:00 a.m. on December 29, 1981. At approximately 3:00 p.m. that same day, Mr. Folds became aware that Sergeant Motley’s vehicle was missing from the lot. Because he had not been on the lot constantly that day, Mr. Folds could not state at what time between 8:00 a.m. and 3:00 p.m. the vehicle had been removed from the lot. Mr. Folds did not become concerned when he noticed the vehicle missing because he thought Sergeant Motley had picked it up for his use. However, the following morning he talked with Sergeant Motley and realized the vehicle had been taken by someone other than the owner. He and Sergeant Motley then reported the vehicle as stolen to the Opelika Police Department.

Mr. Folds stated that other than himself, there was no one else at the automobile lot who had authority to authorize the removal of vehicles from the lot. As well, Mr. Folds stated he had given no one permission to remove Sergeant Motley’s automobile from the lot that day.

Airman William Green, stationed with the Air Force at Maxwell Air Force Base, testified he was a security policeman handling base patrol on December 29,1981. At approximately 6:00 p.m. he received a call that a green Maverick automobile, tag number GFM 383, had driven through a gate into the Air Base without stopping, as required. Airman Green saw the vehicle and began to pursue it. He attempted to stop the vehicle, which was weaving from side to side, using both siren and lights. After traveling four blocks, he was finally able to stop the automobile with the aid of another police vehicle.

Airman Green identified appellant as the man driving the Maverick automobile that day. He stated that because the man’s breath smelled of alcohol, he conducted procedures for one who was suspected of driving under the influence. In Airman Green’s opinion, appellant was intoxicated at that time.

Appellant was then transported downtown and arrested for “drunk driving.” Airman Green testified appellant had the keys to the Maverick in his possession when he was taken downtown. The vehicle remained at the base while appellant was transported to the County jail. Upon notification that the Maverick matched the description of a stolen vehicle, the Opelika Police Department was contacted by the Air Force.

Airman Green recalled on cross-examination that the Maverick may have been “brownish” or “tannish,” rather than green. He was positive of the tag number, however.

The state rested at the close of Airman Green’s testimony.

I

Appellant argues the state’s circumstantial case was insufficient to establish that appellant feloniously took the vehicle from the used car lot. However, reviewing the facts in light of decisions of a similar nature, we find the state’s circumstantial evidence was sufficient to sustain the conviction. The unexplained possession of recently stolen property is a fact from which the jury may infer the appellant’s guilt. Simas v. State, 410 So.2d 139 (Ala.Cr.App.1981); Carpenter v. State, 408 So.2d 559 (Ala.Cr.App.1981), cert. denied, 408 So.2d 561 (Ala.1982); Harper v. State, 389 So.2d 184 (Ala.Cr.App.1980).

Here appellant was found in possession of the automobile on the very afternoon of the day the vehicle had been taken from the automobile lot. The base patrolman was forced to pursue him with siren and emergency lights for a distance of four blocks to force him to stop. We find sufficient evidence was presented to present a jury question as to appellant’s guilt of the offense charged.

II

Appellant argues that venue was not proper in Lee County. He asserts the state’s evidence failed to connect him with the locus of the actual theft, which occurred in Lee County, rather than Montgomery County where appellant was apprehended. We have held in issue one that the evidence was sufficient to sustain appellant’s conviction for committing the theft in Lee County. This precludes appellant’s second issue because the rule is that where property is stolen in one county and carried into another, venue is proper in either county. Kilpatrick v. State, 388 So.2d 863 (Ala.Cr.App.1980), cert. denied, 383 So.2d 867 (Ala.1980); See Simas, supra.

No prejudicial error harmful to the substantial rights of appellant having been demonstrated on appeal, this case is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Carl Steve CARTER v. STATE.
    6 Div. 76.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.

      Eddie Lee Lewis, Cullman, 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 a judgment of conviction and sentence to imprisonment for life on a trial by a jury, in which the jury returned a verdict finding defendant guilty of robbery in the first degree, “in violation of Title 13A-8-41 of the Code of Alabama.” The indictment alleged in pertinent part:

“... Carl Steve Carter ... did, in the course of committing a theft of three hundred sixty ($360.00) dollars ... the property of Cobert Lee, an individual doing business as Lee’s Service Station, use force against the person of Cobert Lee with intent to overcome his physical resistance or physical power of resistance, while the said Carl Steve Carter was armed with a deadly weapon, to-wit: a shotgun.... ”

No issue is raised on appeal as to the sufficiency of the evidence to support the verdict. Therefore, we confine our discussion of the evidence to a short narrative thereof that is sufficient for an understanding of the specific issues raised on appeal.

According to the testimony of Cobert Lee, the alleged victim, while he was operating a country store and service station on May 5, 1981, the defendant drove an automobile up to one of the pumps of the station and asked for “two dollars of gas.” When the gas was pumped into the car, defendant walked into the station and was in the process of paying for the gas and purchasing a pack of cigarettes when another person, Ronnie Snow, came in the station with a shotgun and told Lee it was a robbery and he wanted Lee’s money. Lee further testified:

“So, there I was. When I got through with that, they got back to the door, and so he came back and, he said, he didn’t want any more monkey motions or whatever. Money. I said, well, I felt like who would have thought it. And, I said, well, this is all I’ve got. I opened the cash register. So, Carter, he started reaching and got in and out. So, when he got all of my money, left. And, so Snow, with a shotgun, he told me to lie down in the floor and better stay there. So, I did. “When I got up and looked out the window, the car was gone. I didn’t hear it leave. So, I guess, my heart was making too much noise. But when I looked out and the car was gone and, I said, well, nothing I can do, except call the law enforcement, the sheriff.
“So, I rung once. Probably missed the number or something, or busy. And, I dialed the second time and they answered. ...”

During further testimony of Mr. Lee, he said that the motor vehicle the defendant was driving was a “Camaro.” The witness afterwards identified a picture of a Camaro automobile as a picture of the automobile which the defendant was driving at the time he obtained the two gallons of gasoline for the automobile at the service station of the witness. The admission in evidence of such picture as a State’s exhibit is one of the issues raised by appellant, which issue we will discuss later.

Deputy Sheriff Shirley Vandiver testified that he received the call at the courthouse as to the robbery at about 4:20 P.M. and promptly thereafter set up a road block at Ryan’s Creek and thereafter saw an automobile, which he identified as the automobile shown in the photograph designated State’s Exhibit No. 6, in which there were five individuals, including the defendant as the driver of the vehicle. Although he had apparently stopped, or almost stopped, the vehicle, it “Took off real fast,” and the last he saw of the vehicle was “approximately quarter of a mile till they went out of my sight.” During this time, he was in contact with some of numerous backup units in automobiles. Officer Vandiver participated in the pursuit of the automobile and the robbers, the subsequent apprehension and arrest of the robbers, and in the seizure of the automobile. When the automobile was seized, it was not occupied by either the appellant or the man who used the gun in the service station. In the automobile at the time of its seizure were three other people, one male and two females.

Lauri Ann Miller, a seventeen-year-old girl, testified on call of the State. She testified that she was in the automobile with the defendant and Snow and her brother and another girl when they drove up to the filling station where the robbery occurred. She saw defendant and Snow as they went into the station, with Snow having the gun, and when they returned to the automobile defendant drove the automobile away from the station. She said that some time while they were traveling away from the scene, “they” threw the gun out of the automobile.

Appellant’s first contention for a reversal is that the trial court erred in overruling defendant’s objection to the introduction of State’s Exhibit Six. The ruling of the court occurred during the direct examination of the victim of the robbery, Mr. Lee. State’s Exhibit No. Six is a photograph of an automobile. After the witness had testified at length as to the photograph, the following occurred:

“Q. Does that picture, State’s Exhibit No. Six, accurately depict and portray the vehicle as it appeared on that occasion?
“A. Yes, sir.
“MR. HARRIS [State’s Attorney]: Judge, I would move to introduce State’s Exhibit No. Six at this time.
“THE COURT: Okay. Is there any objection?
“MR. LEWIS: Yes, sir, Your Honor.
“THE COURT: Pardon?
“MR. LEWIS: Yes, sir. Objection. The proper foundation laid. Foundation for the exhibit lacks reliability, lack of proof that the conditions are the same.
“THE COURT: Overruled.
“The exhibit will be in evidence.”

We find no merit whatever in appellant’s first contention. Whether the condition of the automobile was the same at the time of the robbery as it was at the time the photograph thereof was taken was not material. The identity of the automobile was the major question involved. The witness had had a good opportunity to observe the Camaro automobile and had already testified at length that the picture was a picture of such automobile. The statement made in the objection to the admission of the exhibit that “the exhibit lacks reliability” is a conclusion of the objector as to which the trial court was in apparent disagreement and was justified in overruling defendant’s objection.

By the second issue presented by appellant, he contends that the trial court erred in overruling the defendant’s objection to the admission in evidence of State’s Exhibit No. Seven. This exhibit purports to be a photograph of a place along the side of the road, which according to the witness Lauri Ann Miller was a photograph of the place where the gun was thrown and where she afterwards went back with a law enforcement investigator and showed him the place and the gun while it was lying there. She testified that the “picture accurately depict[ed] and portray[ed] the place where the shotgun was located on May 5 of 1981, where it was thrown out and where he went back and Mr. Nesmith saw the gun.” When the State offered to introduce the exhibit in evidence, defendant’s counsel said “Objection on the grounds of improper predicate has been laid.” The court replied,

“Overruled, it will be in evidence.” Although the particular exhibit may not have been an important item of evidence, it was clearly admissible, in our opinion, and was certainly not objectionable on any ground assigned by defendant.

By appellant’s third contention for a reversal, he groups State’s Exhibits One, Two, Three, Four and Five. These exhibits were obviously five parts of a shotgun. They were admitted in evidence after the testimony of Investigator Johnny Nesmith with the Department of Public Safety, Alabama Bureau of Investigation, who took part in the apprehension of the suspects and the investigation of the robbery on the day the robbery occurred. He testified:

“We discovered a double barrelled Henry shotgun on the side of the road laying right in the edge of the grass, seven-tenths of a mile south of U.S. 278 Highway near the electric substation there on the Cl -Hill Road.
“Q. I asked you to examine State’s Exhibit No. One, Two, Three, Four and Five, and tell the jury what that is, please, sir.
“A. This is the shotgun that I found with Miss Miller and Felix Easterwood on the side of the road at approximately a little after five o’clock, approximately 5:50, 5:40, somewhere along there, on the 5th day of the month of May.
“Q. Now what was the condition of that shotgun at the time that you first saw it?
“A. When I first saw it, I took photos of it and it was in bad condition. The stock was burst, etc., and it was just hanging together from where it had hit the pavement when it was thrown from the vehicle. And, I put my initials on it there to mark it and so forth.”

State’s Exhibits One, Two, Three, Four and Five were admitted in evidence during the testimony of Deputy Larry Waldrop, of the Cullman County Sheriff’s Department, who also participated in the investigation and apprehension of the persons who Mr. Lee said had robbed him. He testified that he took “State’s Exhibit No. One through Five from Sgt. Nesmith on the night of the robbery, that the stock was broken on it at that time but it was still intact, but “real shakity.” He said the exhibit had been in his possession since May 5, 1981, and was in substantially the same condition on the day he testified as it was on May 5. He said:

“The only difference is when I went to get it out of the evidence locker yesterday to bring it up here, it fell apart. The hammer has come off it and the stock has finished coming off. But other than that, it is in the same condition.”

At the time of the offer of State’s Exhibits No. One, Two, Three, Four and Five the following occurred:

“THE COURT: Any objections?
“MR. LEWIS: Yes, sir. Objection on material variance, proper foundation laid.”
“THE COURT: Overruled. It will be in evidence.”

We agree with the trial court that defendant’s objection was not well taken and should have been overruled, as it was.

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

“The Trial Court erred to reversal in granting the State’s Motion to Exclude the Testimony of Aaron York, a character witness for the appellant.”

Mr. York testified on call of the defendant that he knew the defendant and had lived in proximity to him since 1970. He testified on direct examination.

“Q. Did y’all have business? Did you ever have business with him during that time?
“A. Yes, sir.
“Q. What type of business relationship did you have with him?
“A. Well, the Carter Family and Kathy Gospel Singing Group called me to drive the bus for them. And, at that time I started driving the bus for them.
“Q. How long did you drive the bus for them?
“A. Well, driving the bus and singing with them until I had a heart attack in 1976.
“Q. What period of time, approximately, did this cover? What years did this cover?
“A. From ’70 till ’76.
“Q. During the time you have known and lived near Steve Carter, have you been acquainted with others living in the community that, also, know him?
“A. Well, yes, I have.
“Q. Are you familiar with the reputation of Steve Carter for truth and veracity in the community in which he lives?
“A. Yes.
“Q. Is that reputation good or bad?
“A. In my opinion, it would be good.
“Q. Are you aware of Steve’s prior felony convictions?
“A. Yes, lam.”

Cross examination of the witness commenced immediately as follows:

“Q. (By Mr. Harris) Mr. York, are you aware that Mr. Carter from 1972 until the present time, has some thirteen arrests?
“A. I am not aware of that many. I am aware that he had been arrested some.
“BY MR. LEWIS: Objection, Your Hon- or. A while ago, the prosecutor stated eleven. Now, he’s going up to thirteen. I wish you would get his figures down straight.
“THE COURT: Overruled. Is that the grounds? Overruled.
“MR. LEWIS: Yes, sir.
“Q. (By Mr. Harris): Are you aware that he was arrested in 1975 for aggravated assault with intent to murder?
“A. Yes, sir.
“Q. Arrested in ’76 for burglary?
“A. No, sir.
“Q. Arrested—
“A. I know I have read in the paper and heard of it, but that was — As far as I am concerned, that was hearsay.
“Q. What people say about him too is hearsay, isn’t it?
“A. Yes, sir.
“Q. Is what you testified your opinion of Mr. Carter, or what people think about him?
“A. I testified in my opinion.
“MR. HARRIS: Judge, I would move to exclude this man’s entire testimony. It is improper testimony.
“THE COURT: I will grant the motion then.
“Ladies and Gentlemen, the testimony of this witness, he was asked if he knew the reputation of the defendant’s truth and veracity, and, he said, he did. But now, then, he says that his testimony was his opinion and not based on the man’s reputation for truth and veracity.
“Therefore, his testimony would not be admissible evidence for you to consider, and, therefore, I instruct that his evidence is excluded. And, you will not consider the evidence of this witness in your deliberations.
“THE COURT: Anything further?
“MR. LEWIS: No, sir, Your Honor.
“MR. HARRIS: Nothing from me.
“THE COURT: Thank you, sir.
“(Witness excused).”

We are favorably impressed by the testimony of Mr. York and think that it was unfortunate that it had to be excluded from the consideration of the jury, especially so in that it had to be excluded on motion of the State after cross-examination had commenced. However, no one is to be blamed therefor. It is reasonably clear from the transcript quoted above that the testimony of the witness was subject to a valid objection to the effect that he was giving his own opinion as to “the witness’s own favorable opinion of accused’s character” for truth and veracity rather than basing it upon the reputation for truth and veracity that defendant had in the community where he had lived. The only opinion cited by appellant in support of his fourth contention for reversal is Adams v. State, 33 Ala.App. 136, 31 So.2d 99, which does not support appellant’s contention. Perhaps one or both of the parties on the trial could have made it clearer by more distinct questions to the witness as to whether he was basing, his testimony on his own personal opinion he had formed from his observation of and dealings with defendant as distinguished from his opinion as to defendant’s reputation among those in the community where defendant lived, but we are convinced that the trial court was not in error in ruling as it did. This conclusion is in accord, we think, with the correct principle stated in Gamble, McElroy’s Alabama Evidence, § 26.01(4) (1977):

“A person’s character, offered as tending to prove his conduct on a specified occasion, is not provable by the opinion of a witness, no matter how well the witness knows, or how intimate the witness’ association with, such person.... Even in the cross-examination of a State’s witness who has testified to accused’s bad general reputation, the accused may not elicit the witness’ own favorable opinion of accused’s character.
“There is one exception to the general rule excluding a witness’ opinion as to another person’s character. If a witness testifies to such other person’s general reputation as a whole or with respect to truth and veracity for the purpose of impeaching or supporting the credibility of such other person as a witness, the witness may testify further that from such reputation he would or would not believe such person under oath; or would or would not believe such person under such oath in a case in which such other person was personally interested.”

The statement just quoted is clear enough, but it does not in and of itself afford a solution to the question now under consideration, for the reason that during the direct examination and the cross-examination of the witness no reference was made to the “general reputation” of the defendant for truth and veracity but invariably the reference was to his “reputation” for that particular trait of character. As a result, the ruling of the trial court as set forth above is somewhat ambiguous in that it does not absolutely preclude the possibility of an interpretation that a qualified witness cannot give his opinion as to the general reputation of another witness for truth and veracity. There would be no such ambiguity in the ruling if all concerned had had in mind that which is correctly stated by Judge McElroy in the second paragraph of § 26.02(3) and as to what he wisely warns against in the first sentence of § 26.02(4), respectively, as follows:

“Testimony of a person’s general reputation is opinion-hearsay evidence. Such testimony, in essence, is the witness’ opinion as to what the general opinion of the community is concerning such person based on what the witness has heard or on what he has not heard.
“In proving a person’s general reputation, the question to the character witness should be directed to the ‘general reputation’ or ‘general 'character’ of such person .... ”

Any ambiguity in the reason stated by the trial court for its granting the motion of the State to exclude the testimony of Mr. York is at least matched, if not excelled, by the ambiguity of the testimony of the witness as to whether he was testifying that defendant’s reputation in the community for truth and veracity was based on what he had learned from others or, on the other hand, was based exclusively on his dealings with the defendant and members of “the Carter Family and Kathy Gospel Singing Group” from 1970 until 1976. We believe that this question could have been clarified by further questions propounded to the witness, but we are not persuaded that the result would have been favorable to the defendant. Our conclusion is that the trial court did not commit error prejudicial to defendant in excluding the testimony of the witness on the motion of the State.

A final issue presented by appellant is as to the refusal of defendant’s requested Charge No. 4, which reads:

“I instruct you that you the Jury may regard a witness for prosecution as an accomplish [sic] of defendant. I charge you that this witness’s testimony should be received with caution and weighed with great care.”

In support of this contention, appellant relies upon what was stated in United States v. Stanley, 433 F.2d 637, 639 (5 Cir.1970), as follows:

“... It is well settled that the uncorroborated testimony of an accomplice is sufficient to support a conviction in the federal courts. Williamson v. United States, 5 Cir.1966, 365 F.2d 12, 14. When the testimony of an accomplice is received, however, it is proper that the court instruct the jury that the testimony is to be received with caution. Smith v. United States, 5 Cir.1965, 343 F.2d 539, 544-545. In this case the trial court considered the possibility that the jury might regard El-more an accomplice to the offense and properly charged that Elmore’s testimony should be received with caution and weighed with great care. Of course, the credibility of witnesses and the weight of the evidence are issues committed to the jury; it is not the function of this Court to resolve those issues. Williamson v. United States, supra; Gorman v. United States, 5 Cir.1963, 323 F.2d 51, 52.”

It is indicated by the record before us that defendant’s requested Charge No. 4 was a photocopy of something. For that reason, we conclude that the word “accomplish” is not a mere mistake in copying the charge and that the word “accomplice” was not in the charge marked “Refused” by the trial judge. This, of itself, justifies its refusal. However, we go further in stating that, as the first sentence of the above quotation from United States v. Stanley discloses, the federal law as to the testimony of an accomplice is in conflict with the law of Alabama, in that in federal cases there can be a valid conviction on the uncorroborated testimony of an accomplice. The trial court properly charged the jury in its oral charge that “a person who aids and abets another in the commission of a crime would be an accomplice and a conviction for a felony offense cannot be had on the testimony of an accomplice or of numerous accomplices, unless such testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime.” The court also orally charged the jury:

“You may, in this process, observe the attitude and demeanor of each witness and you may take into consideration the interest or the lack of interest that a witness has in the outcome of the case.”

In our opinion, the language of defendant’s requested written Charge No. 4 was defective not only by reason of the language “the Jury may regard a witness for prosecution as an accomplish of defendant” but also for singling out the testimony of an accomplice or accomplices for undeserved emphasis, by stating that it “should be received with caution and weighed with great care.” The trial court was not in error in refusing defendant’s requested Charge No. 4.

The judgment of the trial court should be 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, except BOWEN, P.J., who concurs in the result only.