text:
    Billy W. CROWE v. STATE.
    6 Div. 9.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.

      E. Clint Smalley, III and Russell T. McDonald, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North and Ed Carnes, Asst. Attys. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was indicted under § 13A-5-31(a)(2), Code of Alabama 1975, for robbery or attempts thereof, during which the victim was intentionally killed. The jury returned a verdict of guilty of the capital offense charged in the indictment. After a hearing on aggravating and mitigating circumstances, the jury returned a verdict fixing the appellant’s sentence at life imprisonment without parole. Subsequently, the trial court sentenced appellant to life imprisonment without parole.

Seventeen-year-old Todd Bates testified he was fishing with a group of fifteen men, women, and children at Bailey’s Bridge in Winston County, Alabama, on June 19, 1981. Included in the group were Todd’s father, Jim Bates, and Mr. Bates’s friend, James (Jim) McGuire. When the group of fishermen arrived at the bridge around 9:30 p.m., there were already present several strangers. The strangers were sitting on their automobile hood and appeared to be “drinking.” Among this group was one Randy Twilley.

After approximately twenty-five minutes, another group of several more strangers arrived. Included in this group were the appellant and his brother, Michael Crowe. They disembarked their vehicle, which they had parked on the bridge with the other two groups’ vehicles, and picked up a passing dog and threw it off the bridge.

After a while, a fight broke out between appellant and a member of Twilley’s group over a torn shirt. During the fight, appellant repeatedly slammed his opponent’s head against the side of the bridge. When the fight was over, appellant and Randy Twilley approached James McGuire and attempted to place a lantern, with which McGuire was fishing, into the water. When McGuire indicated the lantern was fine where he had placed it, appellant began to yell to him. Appellant called McGuire “Big Ears,” and told him to “go back to the cornfields where he came from.”

After this episode, Twilley convinced the appellant to leave, telling him they would come back and get McGuire. They left in their automobiles at approximately 10:00 p.m.

The Bates group continued to fish from the bridge until around 11:30 p.m., when appellant’s, group returned in Twilley’s automobile. Todd Bates was within seven or eight yards of James McGuire at this point. Twilley stopped his vehicle behind Todd in the center of the roadway.

Appellant, Twilley, and Michael Crowe got out of the automobile and, with Michael playing a guitar, began to loudly “sing to the fish.” Todd heard another automobile approaching, and at his suggestion, Twilley moved his vehicle out of the way. The three then continued to generally annoy or “bug” Todd’s group about their fishing, by singing and pestering them with questions.

As Michael continued to sing and play the guitar, appellant and Twilley again approached James McGuire. Appellant, observing that Mr. McGuire had a hunting and fishing knife in his pants pocket, asked McGuire why he carried the knife. When McGuire explained that hunters and fishermen carry knives, appellant stated, “If you want to get your weapons, I’ll go to my car and get my .357.”

Appellant made several steps toward Twilley’s vehicle, and then turned and ran up to Mr. McGuire. As appellant ran up, he reached around McGuire, who was facing out toward the water fishing, and took the knife from Mr. McGuire’s pocket.

Todd testified he watched as appellant brandished the knife at Mr. McGuire. He could see the blade reflecting in the light from four lanterns on the bridge which the men were using while fishing. Todd described the ensuing events as follows:

“After he took the knife out, he was flashing it around and stuff, and when he took the knife out, Jim turned around and said, ‘We don’t want to cause no trouble. We’re just up here fishing with the boys.’ He said, ‘We’ll get our stuff together and leave you all alone.’
“Q Okay. Did Jim, at this time, still have anything in his hand?
“A Yes, sir, still had his fishing rod.
“Q All right. And then?
“A And then Michael Crowe told Billy, he said, ‘Come on. Let’s don’t cause no trouble. Let’s leave them alone.’ That is when Billy said, ‘No, I’m going to kill this mother fucker.’
“Q Okay. What happened next?
“A After that, Twilley grabbed him.
“Q All right. Grabbed who?
“A Jim.
“Q How did he grab him, if you know?
“A He grabbed him by the back of the hair and bent him back.
“Q All right. Did he grab him from behind?
“A Yes, sir.
“A After he grabbed him and bent him back, Crowe was standing right here— (Indicating.)
“Q By ‘Crowe,’ who do you mean?
“A Billy Crowe. He come around and cut him right there and stabbed him. (Indicating.)”

The appellant backed away after stabbing Mr. McGuire and yelled at Mr. Bates to get Mr. McGuire “to the hospital that he just loses his temper.” One of appellant’s group yelled for him to get the knife, which had fallen to the pavement, and the appellant went forward and got the knife. Todd, at his father’s instructions, went and observed Twilley’s vehicle tag number, despite Twilley’s efforts to push Todd down and to bend the tag out of sight. The appellant’s group then got into their vehicle and fled.

Scott Burchfield, another seventeen-year-old member of the fishing party, testified he was among the Bates fishing group. His testimony largely substantiated Todd’s account. He did not observe the stabbing, however, although he did see appellant brandishing the knife at McGuire before the stabbing occurred. Neither did he hear all the statements made, nor could he match the voices with the persons who were speaking.

Billy Burchfield, Scott’s father, testified similarly to Scott. He did, however, actually see the appellant take the knife from Mr. McGuire and stab him with it. Mr. Burch-field stated there was a full moon that night and that the victim had a lantern directly in front of him. He testified that after Crowe’s group left, they placed Mr. McGuire in an automobile and rushed him to the hospital.

Dr. Josefino Aguilar, a State forensic pathologist, testified he examined the body of James McGuire on June 20,1981. The body evidenced one stab wound which was inflicted by a single-edge knife. The path of the blade passed through the middle of the chest, perforated the tip of the heart and cut into the covering of the lung. On the surface of the body, over the stab wound, there was a blue bruise or contusion. This indicated the handle of the knife had reached the skin with sufficient force to cause the bruise. The direction of the wound was from front to back and slightly upward. In Dr. Aguilar’s opinion, Mr. McGuire died as a result of a stab wound to the left side of the chest.

Brian Trammell, another member of the fishing party, testified and substantiated the details of Todd Bates’s testimony.

Chief Deputy Jack Gilliland of the Winston County Sheriff’s Department testified he traveled to Houston, Texas, in June of 1982 to obtain custody of the appellant from the Sheriff’s Department there. He stated appellant signed a waiver of extradition on the day on which the extradition hearing had been set.

At the conclusion of the State’s case, appellant’s motion for a judgment of acquittal was denied. Appellant then rested without presenting any evidence on his behalf.

At the sentencing hearing following the guilt phase of the trial, the State presented evidence that appellant committed the intentional killing while under a sentence of imprisonment in the State of Alabama. The appellant called several character witnesses, including his mother, who testified to his good reputation as to violence.

I

Appellant argues the trial court erred in denying his motion for a change of venue based upon prejudicial pretrial publicity. While he asserts that the publicity surrounding the murder of Mr. McGuire was prejudicial in itself, he alleges that “special circumstances” connected to his case led to far more damaging publicity.

Ón July 7,1982, Deputy James W. Taylor was shot and killed at the Winston County Jail. The press in wide-spread and extended publicity, reported that authorities believed Deputy Taylor was killed by family and friends of the appellant during an attempt to free appellant from the jail, where he was awaiting trial for the McGuire murder. Appellant has not been arrested or charged for that incident.

Appellant argues that the publicity surrounding the murder and funeral of Deputy Taylor, and the widespread man hunt for his assailants, compounded the public prejudice already engendered by the publicity surrounding the McGuire murder.

The defendant bears the burden of demonstrating that an impartial and fair trial, which will result in an unbiased verdict, can not be had at the present locale. A showing of actual prejudicial influence upon the jury must be made by the defendant to warrant a finding of error in the trial court’s refusal to grant a motion for a change of venue. The ruling of the trial court on such motion will not be disturbed on appeal absent a showing of abuse of discretion. Ex Parte Magwood, 426 So.2d 929 (Ala.1983).

The existence of widespread publicity alone does not indicate that a defendant can not receive a fair trial. Anderson v. State, 362 So.2d 1296 (Ala.Cr.App.1978); Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982), aff’d, 426 So.2d 929 (Ala.1983). Rather, it is the prejudicial effect of the publicity upon the venire, which has made an impartial trial and unbiased verdict impossible, that the appellant must demonstrate to the trial judge. Speigner v. State, 367 So.2d 590 (Ala.Cr.App.1978), cert. denied, 367 So.2d 597 (Ala.1979). The proper manner for ascertaining whether adverse publicity has biased the prospective jurors is through the voir dire examination. Anderson, supra.

Our review of the jury’s voir dire is guided by the following statements in Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975):

“The constitutional standard of fairness requires that a defendant have ‘a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, 366 U.S. [717], at 722 [81 S.Ct. 1639 at 1642, 6 L.Ed.2d 751 (1961)]. Qualified jurors need not, however, be totally ignorant of the facts and issues involved. ‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ (Citations omitted) “At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘The actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.’ ”

As the United States Supreme Court stated in Murphy, supra, and reaffirmed in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), neither extensive knowledge of the defendant nor of his criminal activities is sufficient alone to establish the impossibility of a constitutionally fair trial. Absent a trial atmosphere which is utterly corrupted by inherently prejudicial press coverage, unfairness and prejudice of a constitutional magnitude will not be presumed on appeal. There must be some affirmative showing by appellant of a connection between the publicity generated by the news media and the existence of actual jury prejudice. Dob-bert, supra; Anderson, supra.

With these standards in mind, we now focus on the question of whether the appellant demonstrated at trial that the prospective jurors were unable, to lay aside any prejudicial impressions or opinions they may have formed as a result of the publicity surrounding the case. .

The first indicium of prejudice created by pretrial publicity referred to in brief by appellant appears in the record as follows:

“THE COURT: Mrs. Denton, did you respond to that question?
“PJ DENTON: No. I said I knew part of the family, and I was afraid I would have a fixed opinion.”

It is clear that prospective juror Denton’s reply indicated it was her personal knowledge of the family, and not publicity about the case, which might affect her decision. Appellant’s argument is not supported by this juror’s answer.

The second reference to the voir dire appears as follows:

“MR. MCDONALD: Do you recall reading or seeing something or hearing something about something that—
“PJ ATCHLEY: That happened this summer, yes. Everybody read it.
“MR. MCDONALD: Ma’am?
“PJ ATCHLEY: Almost everybody read it.”

Appellant also asserts in brief that only four potential jurors were unaware of the bridge murder, and only six were unaware of Deputy Taylor’s murder. As previously stated, even extensive knowledge of the appellant and his criminal activity is not sufficient in and of itself to establish error in the trial court’s ruling.

The third reference by appellant reflects the following:

“MR. MCDONALD: Please search your memory. Regardless of what you heard, what you read, what you saw, did you, at that time, or any time between then and now come to a conclusion of guilt on anybody’s part? Not asking you what you’re feeling now. I’m talking about at that time, did you entertain some thought process that ended up in your mind as guilt or innocence of the persons arrested? Nobody did? Everybody had an open mind right then and had all the way through?
“PJ OWNBY: (Raises hand.)
“MR. MCDONALD: Yes, ma’am?
“PJ OWNBY: When I heard it on T.V. I thought that’s just another crime that goes on all the time, and I sort of thought if he was guilty he needed to be punished, but if he’s not — that’s the way I feel. You hear so much that you sort of feel that way.
“MR. MCDONALD: All right. That’s a healthy way to approach it, and I’m not saying the other way is not. I mean, we’re all human, and we have these straights [traits?], and I’m just trying to find out if any of us here has any kind of — Mr. Ford, you shook your head negative when I was asking the question. “PJ FORD: Well, the morning that I heard about this alleged thing you’re talking about — I mean, I work here every day.
“MR. MCDONALD: I understand.
“PJ FORD: And when I heard it on the news on the way over here, and when I got here I walked out where it happened. The man was a friend of mine.”

Potential juror Ownby’s comment indicated no bias or prejudice against appellant which she could not lay aside in order to render a verdict based on the evidence presented at trial. She, at most, appears to state that if appellant was guilty he should be punished, but if not guilty, he should not be punished.

Potential juror Ford’s answer again indicated no bias created by the news media, but a potential personal bias based upon his friendship with Deputy Taylor.

Appellant’s final reference is as follows:

“MR. MCDONALD: I’m going to ask two questions that may be the same way and maybe it won’t: Did anyone come to any mental conclusion on the part of this defendant at any time between the instant you first started reading it and now?
“PJ SMITH: I did.
“MR. MCDONALD: Yes, sir?
“PJ SMITH: I said guilty when I first read the thing, and I thought, well—
“MR. MCDONALD: You had a conclusion at that time?
“PJ SMITH: Yes, I did when I read it.
“MR. MCDONALD: Anyone else.”
“Did any of you entertain mentally the thought that whoever was in the second incident or the subject matter of the second incident was guilty of the first incident? Anybody?
“(Hands raised.)
“MR. MCDONALD: Mr. Rivers and Mr. Tittle. Anyone else?”

Following those answers, the State made the following inquiries:

“MR. TIDWELL: Mr. Smith, I believe, and Mr. Rivers and Mr. Tittle, these questions are to you: Do you all still feel, even you have gone through a thought process or a conclusion or whatever they are talking about, do you feel at this time today that you, if you were selected to sit on this jury to render a fair and impartial decision based on the evidence that comes from the witness stand in this case, do you think you could? Mr. Rivers?
“THE COURT: Mr. Tittle? Start with the one — Al, I can barely hear you myself. Maybe I’m getting hard of hearing. I guess I am. Call out the Juror’s names.
“MR. TIDWELL: You say you could render a fair and impartial decision based on the evidence and the law given to you by the Judge?
“PJ TITTLE: Yes, sir.
“MR. TIDWELL: Mr. Rivers, do you feel like you could do that?
“PJ RIVERS: Yes, sir.
“MR. TIDWELL: Okay. And Mr. Smith? I’ll get your name here eventually, Mr. Smith. Do you feel like you could render a fair and impartial decision?
“PJ SMITH: I believe. You know, right then I didn’t.
“MR. TIDWELL: I’m talking about today. Today if you were chosen to sit on this jury, do you feel like you could render a fair and impartial decision in this case based on the evidence that comes from the witness stand and on the law the Judge will charge you at the end of the case?
“PJ SMITH: Yes.
“MR. TIDWELL: Okay. Thank you. That’s all, Judge.”

The answers above indicate there existed no hostility toward appellant which suggested a partiality among the jurors that could not be laid aside in rendering a fair and unbiased verdict. Speigner, supra.

We have reviewed the entire jury venire voir dire as well as those portions of the jury venire voir dire to which appellant has directed us in brief. As well, we have carefully reviewed all of the news articles included as exhibits in the record. We find the vast majority of the news articles to be strictly factual in nature and non-inflammatory in character. Magwood v. State, supra. One editorial and one account of Deputy Taylor’s funeral are included which are somewhat less factual. Their thrust is toward the deplorability of the death of a law enforcement officer and the desire that such assailants be quickly punished. Appellant is not mentioned by name in either article. We find that both articles are reasonably free from any call for action based upon emotional subjective judgments. Coon v. State, 380 So.2d 980 (Ala.Cr.App.1979), aff’d, 380 So.2d 990 (Ala.1980), rev’d on other grounds, 405 So.2d 704 (Ala.Cr.App.1981).

The record contains no showing by appellant of any actual prejudice against appellant such as would render it reasonably unlikely that appellant could secure a fair trial and an impartial verdict. Mag-wood, supra. We find no abuse of discretion in the trial court’s refusal to grant a change of venue.

II

Appellant argues that an “inflammatory” comment by the prosecutor during closing argument should have resulted in the trial court’s declaring a mistrial. The comment appears as follows:

“MR. SNODDY: The most important thing, I want you to remember that it could have been your father, your brother, your son or anyone else.
“MR. MCDONALD: He’s putting the jurors in the position of the parties, may it please the Court, and we are going to have to object to it and we want to make a motion if you will consider it timely and we’ll do it later.
“THE COURT: All right. The objection is sustained. Don’t argue other than this case.”

Prejudicial statements, even though improper, may be eradicated by the trial judge in sustaining objections thereto, or by instructions to the jury or both. Meredith v. State, 370 So.2d 1075 (Ala.Cr.App.), cert. denied, 370 So.2d 1079 (Ala.1979).

Here, the trial court immediately sustained the appellant’s objection. There is no indication that the prosecutor attempted repetition of the improper argument. Any error, therefore, was cured by the trial court’s ruling in sustaining appellant’s objection. Thompson v. State, 352 So.2d 37 (Ala.Cr.App.1977); Vickerstaff v. State, 374 So.2d 443 (Ala.Cr.App.1979). There was no request that the remark be excluded from the jury’s consideration. We do not view the remark to have been of such a prejudicial nature as to have been ineradicable by proper instruction had corrective action been requested. Hipp v. State, 47 Ala.App. 580, 258 So.2d 920 (1972); Richardson v. State, 354 So.2d 1193 (Ala.Cr. App.1978). Appellant’s motion for mistrial on this ground, which was made after the closing arguments by both sides was completed, was properly denied.

Ill

Appellant argues that the trial court erred in charging the jury on intentional killing during the course of a robbery, as charged in the indictment, in that the State’s evidence failed to prove all of the elements of the crime charged. He asserts that the evidence failed to show that the intentional killing was aggravated by robbery, or attempts thereof. Therefore, he argues the State only proved a “simple, unaggravated murder.”

Appellant appears to argue that it is not logically possible for the murder weapon which was taken from the victim by the assailant to also be the property which is the subject of the robbery element of the capital crime. Thus, only if the assailant took the weapon and then used it as a means of force to rob the victim of other property, could a case of capital murder be established. We disagree.

We do not view this issue as a question of whether a murder weapon may also be the subject property for robbery. Rather, the question involves the element of the appellant’s intent in depriving the victim of his property, i.e., the weapon, at the time of the crime.

Robbery, as defined in §§ 13A-8-40 through 13A-8-43, Code of Alabama 1975, includes those instances where force or violence is used or threatened “in the course of committing a theft.” See Commentary to Ala.Code §§ 13A-8-40 through § 13A-8-44 (1975). Theft of property may be committed under § 13A-8-2, Code of Alabama 1975, when one “(1) knowingly obtains or exerts unauthorized control over the property of another, with intent to ‘deprive’ the owner of his property; ...” (Emphasis added). The definition of to “deprive,” as here applicable is:

“a. To withhold property or cause it to be withheld from a person permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to him; or
“b. To dispose of the property so as to make it unlikely that the owner would recover it; ... ” Ala.Code § 13A-8-l(2) (1975).

Whether or not appellant intended to deprive the victim of the knife, as deprive is defined under § 13A-8-1(2), was a question for the jury, which they resolved against appellant. Marvin v. State, 407 So.2d 576 (Ala.Cr.App.1981); Craig v. State, 410 So.2d 449 (Ala.Cr.App.1981).

Prior to the fatal attack, appellant expressed a specific interest in the victim’s knife by questioning the victim about the weapon and its use by the victim. Appellant then rushed up to the victim and grabbed the knife from his pocket. After stabbing the victim with the knife, appellant again made a specific effort to retrieve the knife from the pavement and carry it away with him as he fled. We find that sufficient evidence was presented to require that the question of appellant’s intent in taking the knife be submitted to the jury. As well, the evidence was sufficient for the jury to reasonably infer that a robbery, as charged to appellant, was committed. Marvin, supra; See, Taylor v. State, 48 Ala. App. 443, 265 So.2d 886 (1972) (police officer’s pistol taken during struggle with appellant sufficient facts to charge on robbery and included offenses).

IV

Appellant contends the trial court erred in failing to charge the jury on the lesser included offenses of manslaughter and criminally negligent homicide.

At the conclusion of the trial court’s oral charge, appellant orally requested that the trial judge charge on the above referred to lesser offenses. The record, however, does not reflect that the charges were requested in writing as required when the objection is to the court’s omission to charge. Hollis v. State, 399 So.2d 935 (Ala.Cr.App.1981). The charges were properly refused for this reason alone. Thigpen v. State, 369 So.2d 291 (Ala.Cr.App.1978), cert. denied, 369 So.2d 297 (Ala.1979); Kelly v. State, 338 So.2d 1047 (Ala.Cr.App.1976).

Additionally, while appellant contends in brief that the charges on the lesser offenses were warranted by his theory that the victim was pushed onto the knife, we find no evidence in the record whatsoever to support his contention. The State’s evidence made out a prima facie case of an intentional killing and was in no wise refuted by appellant at trial. In fact, the evidence indicates appellant thrust the knife into the victim with such force that it bruised the skin above the wound. The requests for instructions on the lesser offenses were properly refused in the absence of any rational basis to support them. Chavers v. State, 361 So.2d 1106 (Ala.1978); Thomas v. State, 418 So.2d 921 (Ala.Cr.App.1981).

V

Appellant urges this court to find that the trial court erred to reversal in allowing the State to argue to the jury during closing argument that life without parole is an alternative punishment to death for one convicted of a capital offense. The record reflects the following occurred during the State’s closing argument in rebuttal:

“Of course, Mr. McDonald went into the ramifications, some of the ramifications of this, but I just want to put down what I have. Of course, you know, what I’m telling you now is what I think the Judge will charge you relative to the law, and it’s not a complete statement of that. Of course, that is not my function, and it’s not appropriate for me to try to tell you or give you a complete statement of what the law is. But I do want to make just a few comments about what I think the Judge will charge you.
“(Writing on board.) Now, one, would be capital — guilty of capital crime.
“Now, by ‘Capital crime,’ we mean that crime that is set out in the statute headed ‘Capital Crime.’
“Now, of course, Mr. McDonald in his closing argument gave you a very vivid description of one of the alternatives there, and that is the death penalty. (Writing on board.) But there is another aspect or facet of the capital crime that we are considering here this week. That is—
“MR. MCDONALD: Of course, we object to this, may it please the Court, and we’ll assign our grounds later along with our other motions.
“MR. TIDWELL: Well, Your Honor, we would state for the record and would like to have leave at a later time to state at length for the record relative to what was said by counsel in his—
“THE COURT: Are you saying it is—
“MR. TIDWELL: His closing argument such that ours is at least—
“THE COURT: The objection is—
“MR. MCDONALD: We would just say in the record what he said in his opening statement is what we were interested in, may it please the Court.
“THE COURT: All right, sir. The objection is overruled and you have leave, both of you have leave.
“MR. MCDONALD: We except.
“MR. TIDWELL: Then the other thing that is a possible consideration or alternative under the capital crime statute, if he is convicted of that, is life without parole. (Writing on board.)
“Now, this is the second thing I expect the Judge to charge you as one of the possible verdicts.
“Now, these are both, death penalty and life without parole, are incorporated under the verdict capital crime, guilty of a capital crime, if you decide that the State has met its burden of proving that to you beyond a reasonable doubt and to a moral certainty.
“The other thing, murder, that’s the second alternative, the third alternative, of course, is not guilty. (Writing on board.)
“Now, those are the things I expect that will be your alternatives. One, a capital crime; two, just plain old murder which is a noncapital crime; and three, not guilty, but the significant thing for my purpose of describing this to you is that within the capital crime verdict that you will consider, that doesn’t necessarily mean the death penalty. It could also mean life without parole.
“MR. MCDONALD: May we have a continuing objection so we don’t have to interrupt?
“THE COURT: Yes, sir.”

After the completion of closing arguments, appellant made the following motion:

“MR. MCDONALD: Yes, sir. We want to object to the argument. Well, first, we objected and we asked His Honor if we could make this motion timely, and that was to—
“THE COURT: To the final argument?
“MR. MCDONALD: Secondly, we object to the argument of Mr. Tidwell and wherein he gave the jury the law, not in the nature of this is what we expect the Judge to charge you, but did even write on the blackboard.
“MR. MCDONALD: All right. AA, the thing that says ‘possible verdicts,’ and under it, ‘Number One, Capital Crime,’ and he comments a number of times. I’ll rely on the record, and I did see the court reporter taking it about the capital crime. We submit there are many, many capital crimes of which this defendant is not charged with but one, and he gave the potential punishments under it, one being ‘death penalty,’ and one, ‘life without parole.’
“We submit that not only is that improper coming from the District Attorney but even if it were allowable, then when you gave the punishment of only one of the things they are going to be charged with and not give the punishment of all of them to the jury for their consideration, it is doubly—
“THE COURT: Excuse me. You’re relating to murder now?
“MR. MCDONALD: Yes, the second thing on the board which says, ‘Capital Crime, Number One; Murder, Number Two; and Not Guilty, Number Three,’ and we ask for a mistrial for that improper—
“THE COURT: The motion is denied.”

In reply to appellant’s motion, the prosecutor asserted his argument had been a reply in kind to arguments made by the appellant and quoted appellant’s counsel’s argument as follows:

“MR. TIDWELL: My best recollection was to the effect that if you find him guilty of this capital offense, that he will go to the electric chair, that they will send a large surge of current through his body, that his eyeballs will pop out of his head, that his body will be charred and that green smoke will come out of his mouth—
“MR. MCDONALD: Blue.
“MR. TIDWELL: Blue smoke will come out of his mouth.
“MR. MCDONALD: Ears and sockets.
“MR. TIDWELL: Ears and sockets, and our position is, Your Honor, that having said that that we are entitled to reply in kind and state that with reference to the capital offense that the only punishment will not necessarily be the death penalty but that is only one of the two alternatives, the other alternative being life without parole.
“MR. MCDONALD: May I say something for the record?
“THE COURT: Yes, sir.
“MR. MCDONALD: First, I want to say for the record that the State in the opening statement to the jury said, ‘Yes,’ they were asking for the death penalty. Mine was in response to that. The Defendant takes that position.
“That part about the electric chair, it wasn’t eyeballs bulging out. It was jumping out, being knocked out by wave of electricity. I did say that and said it in this sense: I was talking about the— All of the witnesses saying that they remembered it better now than they did at that time a few hours later, and I said we did not want to make the mistake of giving him, sending him through that and then sometime later saying, ‘Excuse me. Our memory is better now than after another fifteen months has passed,’ or words to that effect. I didn’t say that’s what was going to happen. I said, ‘We don’t want that to happen.’
“THE COURT: All right. Is that all for the record?
“MR. MCDONALD: Yes, sir.” (Emphasis added)

The gravity of charge and legal principles involved, to be presented in instructions to the jury, are matters within the proper scope of argument by counsel. Payne v. State, 261 Ala. 397, 74 So.2d 680 (1954). Counsel may argue law generally to the jury, subject to the control and guidance of the trial court. Counsel’s arguments of law, however, are argument before and to the court itself, in that the jurors are not the judges of the law. Rather, the jury receives and applies the law as it is charged to them by the court. Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). The court in its charge did inform the júry of the range of punishment applicable to the crimes charged by the indictment. The argument would not, therefore, have been prejudicial to appellant. Gilbert v. State, 373 So.2d 1235 (Ala.Cr.App.1979).

Appellant, however, argues that there is a uniquely prejudicial effect in such statements by the prosecutor when they are made in a capital case. He asserts such statements have the effect of “easing the burden of the jury” and inducing the jurors to disregard their responsibility by injecting the consequences of the verdict into their decision, when, as here, those consequences potentially lessen the seriousness of the jurors’ task.

Appellant cites no authority which supports this proposition as it relates to the bifurcated procedure established for capital felony trials under Beck v. State, 396 So.2d 645 (Ala.1980). Clearly, the central issue in the guilt phase of the trial is whether the State has proved that the defendant is guilty of a capital crime. Beck, supra. And it is important that the jury’s attention not be diverted from the central issue of guilt or innocence to the issue of punishment. Beck, supra, at 662, n. 9. It does not necessarily follow therefrom, however, that the jury may not be acquainted generally with the applicable state law involved in the capital felony trial process, including potential punishments. Rather, it appears that care should be taken only to avoid diverting the jury’s deliberations from the central issue of guilt, to the issue of sentence, by such general instructions on the applicable law. While they are not technically applicable to the law under which appellant was tried and convicted, we find the Alabama Supreme Court’s newly promulgated Pattern Jury Instructions for Use in Capital Cases Tried Under Act No. 81-178 (§§ 13A-5-39 through 13A-5-59, Code of Alabama 1975) instructive and persuasive in this matter. The seventh of the nine enumerated “General Considerations” contained therein appears as follows:

“The trial judge should consider giving the following instruction or one similar to it, either at the beginning of the guilt stage trial, or at some place during the oral charge to the jury at the end of guilt stage, or both:
“The defendant in this case is charged with having committed a capital offense. A capital offense is an offense for which the punishment is either life imprisonment without parole or death. The law provides that if a defendant is convicted of a capital offense additional proceedings will be held to determine whether his punishment is to be life imprisonment without parole or death. But you are not to concern yourself at this time, with any issue of punishment. Instead, the only determination you are to make at this time is whether the state has proven beyond a reasonable doubt that the defendant is guilty of the capital offense (or of some lesser offense or offenses which I will instruct you about later.)”

The following quote from the court’s charge to the jury is the only reference to the potential punishments made by the trial judge:

“Now, there is in this case as in every serious offense, that is, a felony charge, a charge for which the punishment is imprisonment in the penitentiary and that starts at a year and a day sentence and runs on up, of course, to life in prison and life in prison without parole and death in the electric chair as in a capital charge. But every serious charge of that kind has to be brought to trial first by the finding of an indictment by a grand jury.”

We do not view this statement to have been of such a nature as to have diverted the jury’s attention from the central issue of guilt.

While we also do not find that the prosecutor’s comments, quoted supra, im-permissibly diverted the jury’s attention from the issue of guilt, it is unnecessary for us to make that determination to resolve this issue. We think the trial court was justified in overruling appellant’s objection and motion for mistrial because the prosecutor’s argument could correctly have been viewed as a reply in kind to appellant’s argument to the jury that “if you find him guilty of this capital offense, that he will go to the electric chair.... ” See, Grady v. State, 391 So.2d 1095 (Ala.Cr.App.1980). Appellant did not dispute the prosecutor’s quotation of his statement to the jury, although he denied its intended impact was to indicate that the death sentence was inevitable upon conviction of the capital crime. We believe the thrust of appellant’s argument, as quoted by the prosecutor, could have impressed the jury that death by electrocution was the only possible sentence, and it was proper for the prosecutor to argue the possibility of the alternative sentence of life imprisonment without parole to the jury. Grady, supra; Ellis v. State, 38 Ala.App. 379, 86 So.2d 842 (1955), cert. dismissed, 264 Ala. 695, 86 So.2d 846 (1956).

Even assuming that the prosecutor had stated in opening argument that the State was seeking the death penalty, it would not have warranted the appellant’s counsel in arguing as a reply in kind, that death was the only possible sentence for the capital offense.

VI

Appellant contends there was a fatal variance between the indictment and the jury verdict, citing Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (Ala.1979), as authority. The verdict in the instant ease appears in the record as follows:

“ ‘We, the jury, find the Defendant, Billy W. Crowe, guilty of the capital offense as charged in the indictment. J.O. Brown, Foreman.’ ” (R. 504)

The indictment, omitting its formal parts, is set forth below:

“BILLY W, CROWE, whose name is otherwise unknown to the Grand Jury, did feloniously take, or attempt to take a hunting knife, of the value of Fifteen Dollars ($15.00), the personal property of JAMES McGUIRE, from his person and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, and in the course of said robbery, or attempt to rob, the said BILLY W. CROWE intentionally killed the said JAMES McGUIRE by taking his hunting knife away from him and stabbing him with the same, in violation of Section 13A-5-31(2) of the Code of Alabama.” (R. 2)

The indictment, in summary fashion so as to omit formal parts, was read to the jury by the trial court during the oral charge as appears below:

“Now, the indictment is in form that which charges a particular capital offense, and that’s what’s written down on here, but there is a lesser included offense of murder.
“Now, let me distinguish and explain and define those two offenses to you. First of all, referring to the indictment in summary fashion, it charges that Billy W. Crowe did feloniously take a hunting knife, the personal property of James McGuire, from his person and against his will by violence to his person or by putting him in such fear as unwillingly to depart with the same and in the course of said robbery the said Billy W. Crowe intentionally killed the said James McGuire by taking his hunting knife away from him and stabbing him with the same.” (R. 483)

As in his preface to reading the indictment quoted above, the trial judge throughout his oral charge informed the jury that appellant was charged by the indictment with having committed a particular “capital offense.” During the court’s charge to the jury as to verdict form the following appears:

“If after carefully considering all of the evidence in the case it is your decision that the State of Alabama has met its burden of proof as I have defined that to you on the capital offense charged in the indictment, then your verdict should be in this form: ‘We the jury find the defendant, Billy W. Crowe, guilty of the capital offense as charged in the indictment.’” (R. 491)

The court, in charging the jury, and in formulating the guilty verdict form quoted above, followed the express language adopted in Beck, supra, for denominating the jury’s verdict during the guilt phase of the trial. His oral charge and verdict form in this regard, were therefore correct. There was no variance between the indictment, the court’s oral charge, and the verdict returned by the jury. “The jury, by bringing back the general verdict of guilty, in full compliance with the trial judge’s instructions, convicted the appellant of the very crime charged in the indictment. Ex Parte Clements v. State, 370 So.2d 723 (Ala.1979).” Johnson v. State, 399 So.2d 859 (Ala.Cr.App.) aff’d in part, rev’d in part, 399 So.2d 873 (Ala.1979); See, Waldrop v. State, 424 So.2d 1345 (Ala.Cr.App.1982).

We note that Whisenhant, supra, cited by appellant, involved a jury verdict which found the defendant guilty of “capital murder.” As well, that decision applied reasoning which was overruled in Beck by its determination that the gravamen of the capital offense is an “intentional killing with aggravation, and not some crime other than homicide under aggravated circumstances.” Beck, supra at 662.

The attorney general points out in brief also that both this court and the Alabama Supreme Court have tacitly approved.such jury verdict form language by affirming capital eases in which the form of the verdict followed that of the verdict in the instant case, citing Clisby v. State, [Ms. 6 Div. 576, Mar. 2, 1982] (Ala.Cr.App.1982), affirmed, Ex Parte Clisby [Ms. 81-633, Feb. 11,1983] (Ala.1983), and Raines v. State, 429 - (Ala.1983), and Raines v. State, 429 So.2d 1104 (Ala.Cr.App.1982), aff’d, 429 So.2d 1111 (Ala.1982).

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HUBERT TAYLOR, Judge.

license: Public Domain

text:
    Jack Wesley TICE v. STATE.
    3 Div. 818.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.

      Jack Wesley Tice, pro se.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for appel-lee.
   HUBERT TAYLOR, Judge.

Appellant, Jack Wesley Tice, was charged with possession of controlled substances under a three-count indictment, each count charging possession of a different substance, namely, pentazocine, methamphta-mine, and marijuana. Appellant was convicted on each count and given three consecutive ten year sentences. On June 25, 1982, appellant filed an appeal, but on March 14,1983, had the appeal dismissed on his own motion. A pro se petition for writ of error coram nobis was filed by appellant on March 21, 1983, in the Circuit Court of Montgomery County. The petition was denied without an evidentiary hearing on April 22, 1983. This appeal followed.

Appellant alleges that he possessed all of the controlled substances named in the indictment at the same time and place. A recent case directly on point is Vogel v. State, 426 So.2d 863 (Ala.Cr.App.1980), aff’d as to other issues,- writ quashed as to instant issue, 426 So.2d 882 (Ala.1982). That case held that possession of different controlled substances at the same time and place constituted one felony and not several.

In this particular appeal, we must affirm the order of the lower court. The subject matter of appellant’s petition, a ruling by this court in the 1980 Vogel case, is something that could have been known at the time of the appeal. Error coram nobis is not a substitute for appeal. Additionally, the petition does not contain the affidavit required by Stephens v. State, 420 So.2d 826 (Ala.Cr.App.1982). However, if the record of the underlying trial bears out appellant’s allegations, it would be appropriate for him to petition for, writ of habeas corpus to challenge the jurisdiction of the sentencing court.

AFFIRMED.

TYSON and HARRIS, JJ., concur.

BOWEN, P.J., concurs in result only.

SAM W. TAYLOR, J., recuses himself.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Delores McKINNEY, alias v. STATE.
    7 Div. 112.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Kermit Mac Downs, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant had pleaded not guilty to an indictment that charged her with theft of property in the second degree by allegations in the indictment that the total value of the several items stated therein exceeded $25.00 in value and were “taken from or in a building where said property was stored or kept for sale, with the intent to deprive the owner of said property.” The only actual controversy between the parties on the trial was as to the identity and value of the items of the property stolen by this appellant. According to the undisputed testimony, this appellant and an individual by the name of Mildred Ann Hardnick and some other persons were cooperating with one another in “shoplifting” at the store of Family Dollar Stores, Inc.; they were apprehended soon after they left the store and were arrested by law enforcement authorities and taken to the city jail, where they were questioned. This appellant made a statement in her own handwriting admitting her part in the shoplifting proceeding and that she had obtained “3 sweaters and a sweat suit.” She testified that she did not actually take three sweaters and a sweat suit from the store. She testified:

“Dale Walton [one of the officers] told us we would both get a misdemeanor if we’d cooperate with them and just claim the stuff and drop both of them down to a misdemeanor, so I told Mildred before— When we was in there, me and Mildred was talking after they had left out. Told me, said, I’ll claim the three sweaters and the sweat suit and she said Okay. So, that’s how I got — That’s why I put on the statement the three sweaters and the sweat suit.”

She denied in her testimony taking anything from the store other than one sweater and a sweat suit otherwise referred to in the transcript as “Sweat Pants” and a “jump suit,” each having the “value of $7.99.” The total value, apparently undisputed, of three sweaters and a sweat suit is $31.96.

The record shows that the indictment against this appellant alleged a large number of other items, in addition to the three sweaters and sweat suit as having been stolen by her, with an aggregate value of $91.89. It appears also that Mildred Hard-nick or Mildred Hardin, whatever her correct name is, which by the transcript was never clarified, was also indicted for theft of some, if not all, of the same items. It seems also that the prosecution elected not to prosecute this appellant for a theft of any of the items other than three sweaters and the sweat suit. At the time of the trial of the instant case, Mildred Hardin (Mildred Hardnick) had not been tried, and she was not a witness on the trial of the instant case.

In its oral charge to the jury, the trial court made it clear to the jury that it could not return a verdict in the case of not guilty. It stated to the jury:

“... You will either return a verdict of guilty of theft in the second degree where the value is over $25.00 or you will return a verdict for theft in the third degree where the value is derived [sic] under $25.00. That’s your determination to make in this case as to what the value of the property was.... ”

The jury returned a verdict finding defendant guilty of theft in the second degree, and she was adjudged guilty accordingly. Upon due notice that the State would proceed against her under the Habitual Felony Offenders Act, a sentence hearing was conducted at which it was determined that she had been previously convicted of three felonies, and the court sentenced her to imprisonment for eighteen years. The applicable statutes mandated a sentence for life or not more than 99 years but not less than 15 years. Code §§ 13A-8-4(b), 13A-5-6(a)(3) and 13A-5-9(c)(l).

The only issue presented by appellant pertains to the testimony of Chief Investigator Ben Cowart of the Attalla Police Department, whose first connection with the instant case was when appellant and Mildred Hardin (Hardnick) and some of the stolen property were brought by other officers to the Attalla Police Headquarters. Upon being called as a witness for the State, he testified that he had brought to the court in a white plastic bag the items of merchandise that had been stolen. He was in the process of opening the bag and taking therefrom the items therein, which had been in his custody. The following then occurred during his direct examination:

“Q. Since that time has anyone tampered with to your knowledge, or tampered with the evidence that’s in the bag you brought in?

“A. No, sir.

“MR. HART [District Attorney]: Your Honor, we’d ask that this be marked State’s Exhibit 3 for identification.

“THE COURT: I believe he testified there were other items other than what she had admitted here in this. I’m not going to allow those in. You can take them out and get them identified and introduce those but not all the entire bunch.

“Q. Chief Cowart, I want to ask you to open up the sack that you brought in and if from that sack you can pick out the five items that she identified that day—

“MR. DOWNS [Defendant’s attorney]: Then, before you open it up, may I ask you a question on voir dire?

“Q. Then, can you tell us before you open the bag which items she identified?

“A. No, sir. Not each individual item. “MR. DOWNS: Judge, we move to exclude any further testimony.

“THE COURT: Overruled.

“MR. DOWNS: Your Honor, we except to having — we except to having him identify any of the items that this particular girl is charged with taking. He says he could not identify them.

“THE COURT: He said he couldn’t describe them without seeing them.

“MR. DOWNS: Excuse me.

“(VOIR DIRE EXAMINATION CONTINUED)

“BY MR. DOWNS:

“Q. Chief Cowart; once you open that bag and see the individual items will you be able to designate which ones were taken by Delores McKinney?

“A. No, sir. Each item was not individually marked at. that time because in her statement she had said that she took and she pointed out which one, so—

“Q. So, when you open that bag and you take the items you’re going to have to guess at which ones she admitted to taking?

“A. Other than the sweat suit.

“Q. Other than the sweat suit you cannot identify to us which items this girl supposedly took?

“A. No, sir.

“MR. HART: Your Honor, may we approach the bench?

“THE COURT: You may.

“(AT THE BENCH)

“MR. HART: Your Honor, because there’s already been testimony that items in this bag came from both this Defendant and another Defendant and because this Defendant has already signed a confession stating that these sweaters and sweat suits were taken by her I feel that the highest and best evidence of the value of those rests in the items that are in this bag and just for the purposes of determining the value of what everything is in the bag is without trying to charge this Defendant with taking more than what she as [sic] admitted to taking we would ask that he be allowed to go into the bag and go into the price of each item that’s in the bag. Strictly as it relates to her confession admitting what items she did take from the store.

“MR. DOWNS: Your Honor, we would object. He’s just said that he could not identify the items other than the sweat suit and the highest and best evidence would be Mrs. Gamblin’s testimony as District Manager as to the value of the itéms.

“MR. HART: Your Honor, she has testified that the price tags were on the items and that would be the highest and best evidence due to the price tag on the items at the time.

“MR. DOWNS: Based on what Mr. Cowart just testified to he cannot identify the items other than possible sweat pants. We object.

“THE COURT: I’m going to recess until in the morning and I’ll give you a ruling on that in the morning.”

The following morning when the parties announced ready, the following occurred:

“(AT THE BENCH)

“MR. HART: Judge Smith, at the conclusion yesterday I made a motion to ask us to be allowed to examine all the tags in the bag. After we left yesterday Chief Cowart left his records, and from his records he can identify which items were identified by this Defendant and which items were identified by the other girl who was interrogated, so I withdraw that motion I made yesterday and wish to call Chief Cowart to testify as to which items.

“THE COURT: You may proceed.

“(IN OPEN COURT)

“MR. HART: Your Honor, the State calls Chief Ben Cowart.

“BEN COWART: RESUMED

“FURTHER DIRECT EXAMINATION

“BY MR..HART:

“Q. Chief Cowart, of course, you are still under oath from yesterday — From yesterday’s testifying?

“A. Yes.

“Q. Chief Cowart, today can you now identify out of that sack of sweaters, sweatpants that you have with you, can you identify which items Delores McKinney picked out at the police station as having been taken from the store by her?

“A. Yes, sir, I can.

“Q. How are you able to identify the items she took?

“A. After I left the Courtroom yesterday afternoon I went back and reviewed my records.

“Q. Did your records tell you which items she had took as opposed to which items the girl had took?

“A. Yes.

“Q. Rather, she had identified as opposed to—

“A. Yes, sir.

“MR. DOWNS: Your Honor, we ask for the record to be produced that he had used to refresh his memory, if he’s got them with him.

“THE WITNESS: Ido.

“MR. DOWNS: We’d like to be given an opportunity to examine them, Your Honor.

“(INSTRUMENT HANDED TO MR. DOWNS)

“MR. DOWNS: Your Honor, may I ask a question on voir dire?

“THE COURT: You may.

“VOIR DIRE EXAMINATION.

“BY MR. DOWNS:

“Q. Chief Cowart, this appears to be a statement taken from an individual named Mildred Ann Hardnick?

“A. Hardnick.

“Q. And that’s what you are using to base your testimony as to what items were this girl’s and what items were the other girl’s.

“A. Yes, sir.

“MR. DOWNS: Judge, we object to him using the statement of some other person that’s not here, Judge. It’s hearsay as to this Defendant.

“THE COURT: Overruled. If he can identify them from—

“MR. DOWNS: Your Honor, we object and like to have this marked.

“THE COURT: I’ve overruled your objection.

“MR. DOWNS: Like to have this marked.

“(Whereupon an instrument was handed to the Court Reporter and marked for identification as Defendant’s Exhibit No. 1 at this time.)

“MR. HART: We are asking permission to substitute a copy since this is the original.

“THE WITNESS: That case is still pending.

“MR. DOWNS: As to Defendant’s Exhibit 1, we object to him testifying or refreshing his recollection from a statement made by another person is not here who I have not right to cross-examine.

“THE COURT: This witness is the one that’s testifying. You have a right to cross-examine him.

“MR. DOWNS: He says its based on what he learned from the statement.

“THE COURT: That’s some notes he used to refresh his recollection.

“DIRECT EXAMINATION (CONTINUED)

“BY MR. HART:

“Q. Chief Cowart, can you now pick out of that sack of items you have the items that Delores McKinney or Patricia Sturgeon [name by which Defendant was otherwise known] identified as the ones she took from the store?

“A. Yes, sir.

“Q. Will you now pull out the items that she picked out?

“MR. DOWNS: May I ask a question on voir dire?

“THE COURT: You may.

“VOIR DIRE EXAMINATION.

“BY MR. DOWNS:

“Q. Chief Cowart, are you doing this more or less by process of elimination? Are you taking the items that this Hardnick girl has admitted to and then excluding or assuming that everything else was items taken by this girl, McKinney?

“A. The items that will be taken out of the items that were identified by the other are [sic] her accomplice — The list of items is in here identifying each item—

“Q. But I’m talking about the items this girl took right here or you say she took. You’re determining that based on what this other girl told you?

“A. Well, it’s the same thing except what she told me — This is my handwriting.

“Q. But, again, it’s something someone else told you; is that correct?

“A. It’s her statement, yes, sir.

“Q. The Hardnick girl’s statement?

“A. Yes, sir.

“Q. And that’s what yoü are using in determining which items were taken by Delores McKinney?

“A. Yes, sir.

“MR. DOWNS: Your Honor, we object.

“THE COURT: I have ruled on that already, Mr. Downs.

“MR. DOWNS: I’m sorry, we except, Your Honor.

“DIRECT EXAMINATION (CONTINUED)

“BY MR. HART:

“Q. Chief Cowart, will you now hand to me the items that you can identify as being picked out by Delores McKinney that day as the one’s she took from the store?

“A. These (Indicating).

“MR. HART: Your Honor, we’d ask that these be marked for identification as State’s exhibits.

“(Whereupon the heretofore mentioned instruments were marked for identification as State’s Exhibit Nos. 3 through 7, both inclusive, at this time).

“Q. Chief Cowart, are you certain from checking your records that these are the sweaters and pants that Delores McKinney identified that day as having been taken from the store by her?

“A. Yes, sir.

“MR. HART: Your Honor, we’d offer State’s Exhibits 3 through 7 into evidence.

“MR. DOWNS: Your Honor, we object on the same ■ grounds that we previously assigned.

“THE COURT: Overruled.

“(Whereupon the heretofore mentioned instruments marked for identification as State’s Exhibit Nos. 3 through 7, both inclusive, were received into evidence as such and filed with the Clerk of the Circuit Court of Etowah County.)

“MR. HART: That’s all I have for Chief Cowart.

“CROSS-EXAMINATION

“BY MR. DOWNS:

“Q. Chief Cowart, you did tell us while you were seated in that chair shortly before the break that you could not tell us which of these items came from which girl?

“A. Yes, sir, I did.

“Q. And after the break, then or after, after we recessed yesterday you then changed your mind and said you now are able to?

“A. After reviewing my records. Went back through the file on the case and after—

“Q. Prior to you coming up here to testify yesterday did you review your records?

“A. No, sir, I didn’t.

“Q. Do you not think it’s important to review your records when you are going to testify in a case?

“A. Well, this one is not the case. This was the case that is not being tried today.

“Q. So, again, your testimony is based on what you learned in another case?

“A. It’s a companion case.

“MR. DOWNS: Yes, sir. I have no further questions.

“MR. HART: I have no further questions, Your Honor.

“THE COURT: You may step down.”

We have difficulty in determining with certainty just what was meant by everything that was said by the parties concerned as shown by the portion of the transcript quoted above, but it is clear to us that State’s Exhibit No. 3 is a blue sweater, State’s Exhibit No. 4 is a pair of “Sweat Pants,” State’s Exhibit No. 5 is a pink/white sweater, State’s Exhibit No. 6 is a black/white sweater and State’s Exhibit No. 7 is a blue/white sweater. Unfortunately, we do not find in the transcript a copy of Defendant’s Exhibit No. 1, referred to hereinabove as the statement made by the “Defendant in the other case.”

We are not convinced that there was a meeting of the minds of the attorneys for the respective parties and the witness, Chief Investigator Cowart, as to all that was said and referred to in the portion of the transcript we have quoted above; yet we are convinced that it cannot be determined that the trial court was in error in permitting Chief Investigator Cowart to testify, as he did, in effect that between the time he testified one day and the time he testified the following day he consulted a memorandum to aid him in his recollection as to what items this appellant had been heard or seen to have identified as a sweat suit and three sweaters that she herself stole from the property of Family Dollar Stores, Inc. We are so convinced notwithstanding some ambiguity in the testimony of Chief Investigator Cowart in answering questions asked him on voir dire examination by defendant’s counsel, which perhaps is subject to the construction that, in testifying as to the items said or shown by this appellant to be items stolen by her, he was not relying upon his refreshed or revived recollection that she had done so, but solely upon what the other defendant, Mildred Hardnick or Mildred Hardin had stated in writing that she had stolen. In reaching this conclusion, we also take into consideration the fact that the trial judge was apparently led to believe by what the witness said and demonstrated that he was not basing his testimony on what the other defendant had said or done or written in particularizing the items she had stolen. In the absence from the transcript of defendant’s Exhibit No. 1, we are unable to say with reasonable certainty that it effectuated a revival of the witness’ then present recollection or a refreshment of his memory as comprehensively considered in Gamble, McElroy’s Alabama Evidence, § 116.02 (1977), or, on the other hand, it constituted Past Recollection Recorded. Whether the trial court deemed it the one or the other, it correctly held, in our opinion, that the testimony under consideration was admissible. This conclusion accords with what Judge McElroy specifically stated in § 116.01, as follows:

“The second use of a memorandum occurs when the witness, after examining the memorandum, cannot testify to an existing knowledge of the fact, independent of the memorandum. This use of the memorandum is often referred to as Past Recollection Recorded; and if the witness testified that, at or about the time the memorandum was made, he knew its contents and knew them to be true, then both his testimony and the memorandum become admissible. The memorandum and the witness’ testimony are the equivalent of a present positive statement of the witness affirming the truth of the contents of the memorandum. McElroy’s Alabama Evidence, § 116.01 (1977).”

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.


author: BOWEN, Judge.

text:
    Ronnie Robert SMITH v. STATE.
    4 Div. 58.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    No brief for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for trafficking in cannabis in violation of Alabama Code 1975, Section 20-2-80. Sentence was three years’ imprisonment.

Appellate counsel has filed no brief and this case is due to be affirmed on authority of Rule 45B, A.R.A.P. However, this case must be remanded for proper sentencing. The defendant must be sentenced to “a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.” Section 20-2-80(l)(a) (emphasis added).

Additionally, the trial judge had no authority to suspend sentence pending appeal. Section 20-2-81(a) provides that “with respect to any person who is found to have violated this article, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this article.” The prosecuting attorney made no recommendation to reduce or suspend the defendant’s sentence because the defendant had provided “substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals” as provided by Section 20-2-81(b). The trial judge made no finding that the defendant rendered such assistance.

This cause is remanded for proper sentencing.

REMANDED FOR PROPER SENTENCING.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Raymond SUMMERHILL v. STATE.
    8 Div. 651.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    Rehearing Denied May 31, 1983.
    Certiorari Denied Aug. 5, 1983 Alabama Supreme Court 82-821.
    John R. Benn of Peck & Slusher, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

As shown by the return of the trial court to our order remanding this cause with directions as heretofore rendered and thereafter modified, the trial court has proceeded in accordance with said directions to conduct another sentence hearing and has rendered a judgment sentencing defendant upon his plea of guilty to “serve a term of fifteen (15) years,” as it did in its previous judgment of sentence after he had been adjudicated guilty in accordance with his plea of guilty. The judgment on remandment states the following pertinent findings of the trial court:

“THAT the Defendant Raymond Sum-merhill, was convicted in Cases numbered CG-81-280 and CC-81-279 on September 21,1981, and was adjudged guilty in each case based upon his plea of guilty entered on said date.
“The Court further finds THAT the Defendant committed the offense upon which the within case is before the Court on October 1, 1981....
“... Said sentence is imposed based upon the following premises:
“(1) The application of the Habitual Felony Offender Act showing two (2) prior felony convictions.

As the return to the order of remandment discloses (1) that prior to the judgment of conviction and sentence in the instant case defendant had been adjudged guilty of the felony charged in each of the other two cases involved and (2) that prior to his commission of the felony charged in the instant case defendant had committed the felony charged in each of the other two cases, we no longer have any concern as to the existence of either fact. We now consider the only other issues presently presented by appellant in his brief and the diametrically opposing positions taken by appellee in its brief on the return to the order of remandment. They are captioned-hereafter in the form of questions,' and, except for the deletion of the word “not,” are in the language presented in appellant’s brief.

I

SHOULD DEFENDANT HAVE BEEN SENTENCED AS A THIRD-TIME OFFENDER SINCE THERE WAS NO SEQUENTIAL RELATION BETWEEN THE PRIOR FELONY CONVICTIONS RELIED UPON TO ENHANCE SENTENCING?

Appellant candidly acknowledges that his position as to the question is inconsistent with Watson v. State, Ala.Cr.App., 392 So.2d 1274, cert. denied, Ala. 392 So.2d 1280 (January 29, 1981), followed by Serritt v. State, Ala.Cr.App., 401 So.2d 248 (rehearing denied May 26, 1981) cert. denied (July 31, 1981), and states in the concluding sentence of his argument under the above caption that “Watson v. State, should be overruled to the extent it is inconsistent with this approach [appellant’s discussion as to the necessity for the observance of sequence in the habitual felony offenders statute] to the three tier habitual offender statute.” We decline to attempt to overrule Watson v. State and definitely reaffirm all that was held and said therein.

Appellant’s main target is the following sentence in Watson at 392 So.2d 1279:

“The statute seems clear and unambiguous that, where two or more convictions occur at the same time and in the same court, they are separate convictions within the meaning of the Habitual Offender Statute.”

It is clear that by the use of the words “same time” reference was not made to any specific measure of time, but to the same occasion, for the reason that the previous convictions occurred on the same occasion and the word “time” and the word “occasion” are correctly used synonymously when no measure of time is controlling, whether years, seconds, or any of their intervening periods of time.

Appellant proceeds in his argument to discuss a number of cases from other jurisdictions in which conclusions are reached as to recidivist statutes of such jurisdictions that are not in accord with that which was held in Watson v. State as quoted above. As appellant in his argument concedes and as our examination of such authorities reveals, the language of the other statutes on the subject is not identical with that of the statutory law of Alabama. In addition, it is to be noted that in some of the authorities relied upon by appellant emphasis is placed upon “the underlying purpose,” the “policy,” or the “basic philosophy” of the recivi-dist statute, which could well vary from jurisdiction to jurisdiction. Furthermore, in some of the cases cited by appellant, the conclusions relied upon by appellant are linked to the philosophy expressed in those jurisdictions to the effect that one is not subject to the recividist statute unless he has actually served, partially or completely, his sentence for “one or more prior felony convictions,” which is contrary to the established law in Alabama as announced first in Alabama in Watson v. State, supra, at' 392 So.2d 1279, as follows:

“In our judgment, the word ‘convicted,’ as used in § 13A-5-9, Code of Alabama (1975), does not include actual service in the penitentiary. Had the legislature intended ‘conviction’ to include only those convictions followed by actual imprisonment, such a definition could easily have been included in the statute.”

Additional consideration should be given, we think, to appellant’s use of the word “sequential,” the emphasis he places thereon and the interesting argument, which academically is persuasive, to the effect that there must be some sequence between a conviction for a felony for which the defendant can receive a recividist sentence and any conviction that serves to enhance such sentence from the sentence that it would otherwise be. We think, from the language of the recidivist statute itself by the use of the words “previously convicted,” it follows necessarily that there must be such a sequence. In the instant case, there was a sequence between the adjudication of defendant’s guilt of the two other felonies under consideration and the judgment of conviction and sentence in the instant case. He was adjudged guilty of each of the other felonies on September 21, 1981; he was not adjudged guilty in the instant case until January 8, 1982. Whether there was any attempt to invoke the recidivist statute as to the two previous convictions inter sese, or, on the other hand, whether the statute was either inadvertently overlooked or the sentence in each case was the same as it would have been if the statute had been applied, we do not know and do not inquire, as it would be immaterial to the question before us. Nevertheless, we now continue our discussion of appellant’s argument as to the necessity for sequence.

It is difficult to conceive of two or more convictions of the same defendant without sequence between one conviction and each of the other convictions. The records may fail to show the priority of each conviction as related to the other conviction or convictions, but it is not in keeping with the law or the practice in the trial courts of Alabama for two convictions of the same person to be precisely at the same moment. Usually, only the day, the month and the year will be shown as the time of the judgment, but there is necessarily tbe passing of some interval of time between one conviction and each of the other convictions. They may be as close as the births of twins, which may have caused legal problems under the law of primogeniture, but even then, when the facts were known, the law could be applied with certainty so that the birthright under the law would be bestowed, in accordance with the law, upon the first-born, as it was upon Esau, even though he afterwards sold it to Jacob, the younger of the twins.

II

WAS THE DEFENDANT “CONVICTED” OF A FELONY FOR PURPOSES OF ENHANCED PUNISHMENT UNDER THE HABITUAL OFFENDER ACT SINCE HE HAD NOT BEEN SENTENCED FOR THE ORIGINAL FELONY AT THE TIME HE COMMITTED THE PRESENT OFFENSE?

Under this caption, appellant continues to argue that which he argued to some extent under his first proposition and on original submission that, notwithstanding what was said and held in Watson v. State, supra, and Burgess v. State, Ala.Cr.App., 412 So.2d 298 (1982), there was no “conviction under” the specific statute unless the defendant had been sentenced, that as the appellant had not been sentenced in the cases in which he had been previously adjudged guilty, he had not been convicted in such cases and the recividist statute could not be applied to him. We considered that question in our opinion on original submission and indicated disagreement with appellant’s contention, but we did not definitely decide it in this case then, as there was then the more pressing problem of whether there had been an “adjudication of guilt in either of the other two cases prior to the commission of the crime charged in the instant case.” On application for rehearing by the appellee and a “supplement on minute entry” showing that there had been such an adjudication prior to judgment of conviction and sentence in the instant case, our opinion on original submission was extended and another order remanding the case was rendered. There was no application for a rehearing by appellant.

We now hold, as we indicated in our opinion on original submission that we would likely hold, in firm adherence to Watson v. State, supra, and Burgess v. State, supra, that a previous “adjudication” of guilt of a felony constitutes a previous “conviction” of a felony whenever the term “previous conviction” of a felony, or its equivalent, is used in the Habitual Felony Offenders law of Alabama.

Appellant advances argument as to this proposition in addition to that which he made on original submission. He now says:

“Further evidence of legislative intent is contained in the Proposed Criminal Rules, which were first suggested in 1977. Rule 26.2(b) states:
“(b) Upon Conviction
“(1) Upon a determination of guilt on any charge, or on any count of any charge, judgment pertaining to that count or that charge shall be pronounced and entered together with the sentence.”

Diametrically opposed to appellant’s new argument is Alabama Criminal Code § 13A-5-5:

“On motion of the court or written motion of either party, the court shall require a written report of a presentence investigation of a defendant convicted of a felony, and such defendant shall not be sentenced or otherwise disposed of before such report has been presented to and considered by the court.”

Appellant’s position as captioned above is in conflict with enactments of the Legislature, judicial rules, and uniform judicial opinions in Alabama.

Ill

SHOULD DEFENDANT BE SENTENCED AS A REPEAT OFFENDER BEFORE BEING GIVEN AN OPPORTUNITY FOR REFORMATION FOR THE FIRST FELONY OFFENSE?

The theme of appellant’s argument as to the captioned proposition is thus stated in the first paragraph of his argument:

“Rather than examining the definitional aspect of the term ‘conviction’ as it appears in Section 13A-5-9, [argument II], this argument will focus on the underlying policy considerations of Habitual Offender statutes as they relate to Defendant’s sentencing posture. The conclusion offered by Defendant after considering this issue is that the sentencing provisions of Section 13A — 5-9 are not applicable to Defendant’s case.”

Here again, as heretofore stated herein, appellant takes his stand upon what courts of other jurisdictions have declared to be the philosophy or “policy considerations” of recidivist statutes. We reject the “conclusion offered by defendant” without denigrating in the least the scholarly , dissertations as to the “philosophy” and “policy” of recidivist statutes in the opinions cited by appellant. We continue to stand upon the solid rock of that which was said and held in the opinion in Watson v. State, supra, per Judge DeCar-lo.

The judgment of conviction should remain affirmed; the judgment of sentence should now 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.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

In appellant’s application for rehearing he states:

“The Court’s opinion failed to examine the necessity that before Defendant can be sentenced under Section 13A-5-9(b) it is required that there be a commission and conviction of the first felony, followed by the commission and conviction of a second felony, followed by the commission and conviction of the present offense upon which Section 13A-5-9(b) sentence enhancement is sought.
“Pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, Appellant requests this Court to add to its Opinion for rehearing the facts set forth in Appellant’s Rehearing Brief.”

In appellant’s brief, under the caption of “STATEMENT OF THE FACTS,” he requests pursuant to Rule 39(k) that “the Court add to its opinion on rehearing the following facts:”

“On May 7, 1981, the Defendant was arrested and charged with two felonies arising out of his activities on that same date. The Defendant entered a plea of guilty in Case No. CC-81-280 (Theft of Property in the First Degree) and Case No. CC-81-279 (Burglary in the Third Degree) on September 21,1981. The trial court accepted the pleas of guilty and passed the cases until November 6, 1981, for a sentence and probation hearing. On that date, the Defendant was sentenced to serve six (6) years in each case to run concurrently.
“Prior to the November 6, 1981 date set for sentencing and probation but after having entered pleas of guilty, Defendant committed the present offense. (October 1, 1981.) A plea of guilty was entered in this case on January 8,1982, and Defendant was sentenced to fifteen (15) years under the provisions of Section 13A-5-9(b) Code of Alabama (1975).
“The Defendant has never been sentenced under the first tier of Section 13A-5-9(a) and committed the present offense prior to the imposition of sentences for the earlier felony convictions.”

In the argument in appellant’s brief on application for rehearing, he says that the “basic flaw of the Court’s decision is that it fails to fully grasp the sequential relationship mandated by Section 13A-5-9” and that this “oversight is apparent” in the statement in the opinion as follows:

“Whether there was any attempt to invoke the recidivist statute as to the two previous convictions inter-sese or, on the other hand, whether the statute was either inadvertently overlooked or the sentence in each case was the same as it would have been if the statute had been applied, we do not know and do not inquire, as it would be immaterial to the' question before us.”

We decline to depart from that which we have said and quoted above. The language of the .pertinent provision of § 13A-5-9 precludes the notion presently advanced by appellant, which pertinent provision is:

“(b) In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows (emphasis supplied):
“(1) On conviction of a Class C felony, he must be punished for a Class A felony;”

That which is characterized by appellant as an “oversight” is not an oversight of any issue raised by appellant, either in the trial court or on appeal, prior to the position taken by him in his application for rehearing and his brief in support thereof. In his brief preceding his application for rehearing, appellant only contended that “Since Defendant’s prior felony convictions occurred at the same time, they cannot be used to step up Defendant’s sentencing to the second tier provided by Section 13A-5-9(b).” The caption of his argument on the point was as follows:

“DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A THIRD-TIME OFFENDER SINCE THERE WAS NO SEQUENTIAL RELATION BETWEEN THE PRIOR FELONY CONVICTIONS RELIED UPON TO ENHANCE SENTENCING.”

Now, the gist of appellant’s contention in his application and argument for a rehearing is that as the first two felonies were committed on the same date, there does not exist a sequential relation between the first felony and the second felony to justify their treatment as two commissions of a felony or the commission of two felonies. If the Legislature had intended to so provide, it could and should have done so. The language of the legislation is contrary to the contention now made by appellant.

Appellant’s application for rehearing should be overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

      . This is true even though the previous convictions involved occurred on the “same day.”


text:
    Johnny W. CAMPBELL v. STATE.
    8 Div. 849.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing July 5, 1983.
    Johnny W. Campbell, pro se.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   ON APPLICATION FOR REHEARING

HUBERT TAYLOR, Judge.

Appellant, while in custody of the Morgan County law enforcement officials, prepared a petition for writ of habeas corpus. Before appellant’s petition was formally filed in the Morgan County Clerk’s office, he was transferred to Elmore County as a State prisoner. On the date of hearing, appellant was not present; the trial court dismissed the petition. This court affirmed without opinion, all the judges concurring, the dismissal on the ground that the proper court for appellant’s petition would have been the Circuit Court of Elmore County. Ala.Code § 15-21-6 (1975); Brantley v. State, 55 Ala.App. 681, 318 So.2d 376 (1975); Ex parte Unbehant, 43 Ala.App. 593, 196 So.2d 871 (1967).

A denial of writ of habeas corpus is not res judicata. Shuttlesworth v. State, 42 Ala.App. 35, 151 So.2d 734 (1962), writ denied, 275 Ala. 698, 151 So.2d 738 (1963). Appellant is not precluded from pursuing his remedies in the proper fashion according to statute.

The application for rehearing is overruled.

APPLICATION OVERRULED.

All the Judges concur.


text:
    Phillip DUNKLIN, alias v. STATE.
    3 Div. 767.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Harold L. Wilson, Hayneville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The prosecution of this case in the trial court had an ill-starred beginning. We are called upon by the only issue presented on appeal to determine whether its end can be lawfully saved from the disaster that its commencement seemed to augur.

The case commenced in the trial court by two indictments returned against this appellant on the same day for the same crime, the crime of theft in the second degree. One indictment charged in pertinent part:

“... Phillip Dunklin ... did knowingly obtain or exert unauthorized control over, to wit: 1 stereo component with two remote speakers, the property of William Rudolph, of the value of, to wit: $430.00, with the intent to deprive the owner of said property, in violation of § 13A-8-4 of the Code of Alabama.”

The other indictment was in the identical language of the one just quoted in pertinent part, with one exception, which exception is that a phrase, “taken from or in a building where, said property was stored,” is inserted between “$430.00” and the phrase, “with the intent to deprive the owner of said property.”

The mistake that was made in the drafting of two indictments, instead of only one, is attributable perhaps to the confusion resulting from the transition from some of the former legal concepts as to burglary and larceny to those wrought by Alabama Criminal Code, effective January 1, 1980.

Six separate sub-sections of § 13A-8-4, Alabama Criminal Code, classify six separate methods by which theft of property in the second degree is committed. In one indictment, § 13A-8-4(a) was utilized, which provides:

“The theft of property which exceeds $100.00 in value but does not exceed $1,000.00 in value, and which is not taken from the person of another, constitutes theft of property in the second degree.” Section 13A-8-4(e) provides:

“The theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored, constitutes theft of property in the second degree.”

According to the undisputed evidence in the instant case, the property involved, which was correctly described in each indictment, had a value of more than $100.00 and less than $1,000.00, which made § 13A-8-4(a) applicable; it was not taken from a building where said property was sold or stored, which makes § 13A-8-4(e) inapplicable.

Just when the blunder was first observed by all concerned is not revealed by the transcript or the record proper. Both indictments were returned on May 24, 1982; defendant was arraigned and found guilty on December 6, 1982. On account of his indigency, an attorney was appointed for him to represent him on arraignment and on the trial. The same attorney was appointed by the trial court to represent him on this appeal. According to the brief of counsel for appellant, there was a trial of the case previous to December 6, 1982, but as to which a mistrial was declared by reason of the inability of the jury to agree on a verdict.

At the conclusion of the court’s oral charge to the jury that afterwards returned a verdict finding defendant guilty in the instant case, the following occurred, out of the presence of the jury but before the jury was permitted to commence its deliberations:

“THE COURT: Are there any objections or exceptions to the Court’s oral charge by the State?
“MR. ANDREWS [Assistant District Attorney]: State’s satisfied.
“THE COURT: By the Defendant?
“BY MR. WILSON [Defendant’s attorney]: The reading of the code concerning theft of property definition, you did not cover the paragraph of property taken in and from the building, but you covered it at a later point.
“THE COURT: That is not in the definition, I don’t believe.
“MR. WILSON: It’s in paragraph, sub-paragraph E [which we construe as (e) ], I believe, Judge. But you did cover that later in your definition.
“THE COURT: Let me get it and check it. The definition of theft of property? “MR. WILSON: In the second degree, Judge, when you go to the portion in the second degree.
“THE COURT: Theft of property exceeds $25.00, is that what you are talking about?
“MR. WILSON: Yes, sir.
“THE COURT: Okay.
“MR. WILSON: In this specific indictment you remember there were two indictments that were found, this indictment is the one that they were going on. “THE COURT: All right.
“MR. WILSON: I don’t know if that means anything.
“THE COURT: Are there any others? “MR. WILSON:
“THE COURT: Now, ladies and gentlemen, it’s been called to my attention that in reading to you the definition of theft of property in the second degree I neglected to read you one of the paragraphs that is pertinent to this case. So I will read that for you again. This comes from Section 13A-8-4, which sets out theft of property in the second degree and it says:
“The theft of property which exceeds $100.00 in value but does not exceed $1,000.00 and which is not taken from the person of another constitutes theft of property in the second degree.
“Also under sub-section E [§ 13A-8-4(e) ] in value and which is taken from or in a building where said property is sold or stored constitutes theft of property in the second degree.
“All right. I have prepared the two forms of verdict, ladies and gentlemen, you may take them.
“(Whereupon, the Jury retired from the courtroom and proceedings were in recess, after which the following occurred, to-wit:)
“(Whereupon, the jury returned to the courtroom and the following proceedings occurred, to-wit:)
“THE COURT: All right.
“THE FOREMAN: Can I come up there and ask you something?
“THE COURT: No, sir. You will have to do it from back there.
“Do I understand, ladies and gentlemen, that you have some question you want to ask?
“THE FOREMAN: Yes, sir.
“THE COURT: Yes, sir.
“THE FOREMAN: One of them, one of us wants to read wants the indictment read. She would like to hear it again. “THE COURT: All right, sir.
“The indictment in its pertinent part reads as follows:
“The Grand Jury of said county charge that before the finding of this indictment Phillip Dunklin, alias Phillip Duncan, whose name is to the Grand Jury otherwise unknown, did knowingly obtain or exert unauthorized control over, to-wit: 1 stereo component with two remote speakers, the property of William Rudolph, of the value of, to-wit: $430.00, taken from or in a building where said property was stored, with the intent to deprive the owner of said property, in violation of 13A-8-4 of the Code of Alabama, against the peace and dignity of the State of Alabama.
' “Are there any other questions?
“A JUROR: No, sir.
“THE COURT: All right. You may return to the jury room.
“(Whereupon, the jury retired from the court room and proceedings were in recess, after which the following occurred, to-wit:)
“It was then that the jury returned with a verdict finding defendant guilty of theft of property in the second degree, as charged in the indictment.”

In one phase of his argument in his brief, counsel for appellant says:

“When the defendant is charged with two different indictments in the same case, the charge is riot specific enough to allow him to know what to face at trial. In this case, the defendant did not know until he went to trial what he had to answer.”

Although we agree with counsel for appellant that many concerned, including the defendant, were perplexed by reason of the unfortunate return of two indictments, instead of only one, we think the facts shown by the record were sufficient to apprise the defendant and his counsel that defendant was being tried on only one indictment, the one that confusingly and unfortunately charged him with theft of property “taken from or in a building where said property was stored,” which allegation was not proved by the evidence. We are convinced that defendant knew before “he went to trial what he had to answer.”

In the only other phase of appellant’s argument in support of his contention for a reversal, it is stated:

“Before defendant can be convicted, a trial based on indictment, proof must conform to the indictment which has been presented against him, Thompson v. State, 249 So.2d 644, 47 Ala.App. 28 (1971).”.

The case cited supports the language of defendant’s argument. However, there was not involved in the cited case any immaterial language of an indictment, and the case cited is inapposite to this case, in which the language, “taken from or in a building where said property was stored,” was sur-plusage. There is no material variance where there is proof of so much of an indictment as shows that defendant committed a substantial offense specified therein. House v. State, Ala., 380 So.2d 940 (1979). Variance between an indictment and proof is immaterial when the alleged variance may be treated as surplusage. Dailey v. State, Ala.Cr.App., 374 So.2d 414 (1979).

As to the only issue presented by appellant, we conclude that the handling of the case by the trial judge was free of any error prejudicial to defendant. 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.