author: MADDOX, Justice. SHORES, Justice

text:
    Ex parte State of Alabama (Re: James LONGMIRE v. STATE of Alabama).
    81-309.
    Supreme Court of Alabama.
    Dec. 10, 1982.

      Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for petitioner.
    Raymond Johnson, Montgomery, for respondent.
   MADDOX, Justice.

Petitioner James Longmire seeks a new trial. The Court must consider whether to affirm the decision of the Court of Criminal Appeals, 443 So.2d 1263, or whether Long-mire is entitled, by virtue of a writ of error coram nobis granted by the trial court, to a new trial of the charge against him, or, alternatively, an appeal. We recite the following facts of this case as presented by the Court of Criminal Appeals in its earlier decision.

“On June 11, 1979, the [petitioner] was convicted of robbery and sentenced to thirty years imprisonment. He failed to appeal his conviction, but on April 6, 1981, filed a petition for writ of error coram nobis contending that he was denied his right to appeal. His petition cited as authority Daniels v. Alabama, 487 F.2d 887 (5th Cir.1973), asking that the court discharge petitioner, grant him a new trial, or grant him an appeal.

“On May 5, 1981, by agreement of the prosecution and defense, the trial court purported to grant Longmire an appeal to [the Court of Criminal Appeals]. On May 20, 1981, counsel for appellant filed a motion in the trial court stating that the order of May 5 was not in compliance with [the] holding in Goolsby v. State, 374 So.2d 927 (Ala.Cr.App.1978-1979), and moved the trial court to grant him a new trial under his petition for writ of error coram nobis.”

The trial court set aside its order of May 5, denied a new trial, and ordered a further hearing on the petition. In its order of June 29, 1981, the court found as follows:

“1. On June 11, 1979, defendant-petitioner was found guilty of robbery by a jury and was sentenced to 30 years in the penitentiary.
“2. The defendant was aware at the time of sentencing that he had the right to appeal.
“3. The defendant expressed to his court-appointed trial counsel immediately after trial his desire to appeal his conviction.
“4. Edwina Averett, sister of the defendant, discussed his appeal with court-appointed counsel after his trial but never retained him for said appeal.
“5. Edwina Averett discussed the cost of preparing a trial transcript with the Court Reporter of this Court who served during trial but did not consummate an agreement.
“6. Defendant was unaware that Counsel and transcript would be furnished by the Court upon a finding of indigency.
“7. Formal notice of appeal was not taken by defendant within the time prescribed by law.
“8. A determination of indigency of defendant was made by the Court on April 30, 1979, prior to trial of June 11, 1979.
“9. Petitioner, through no fault of his own, failed to perfect a timely appeal from his conviction.”
The order of the court was entered as follows:
“1. The Petition for Writ of Error Coram Nobis is due to be granted because petitioner, through no fault of his own, failed to perfect his appeal within the time prescribed by law.
“2. A complete transcript of the original trial proceedings shall be made and the same timely filed in the Court of Criminal Appeals of Alabama in accordance with the Alabama Rules of Appellate Procedure (Baldwin v. State, 342 So.2d 939).”

On appeal to the Court of Criminal Appeals, both parties briefed the merits; the State did not move to dismiss the appeal. In dismissing the appeal, the Court of Criminal Appeals concluded by holding:

“The trial court may only grant a new trial on the instant petition for writ of coram nobis or deny the writ. Likewise, the appellant cannot appeal a favorable ruling granting his petition. We find the petition was granted, but the relief granted was inappropriate. For all the reasons stated hereinabove, we find no authority to entertain an appeal in this case.
“APPEAL DISMISSED.
“All the Judges concur.”

This Court has traditionally ruled that “[a] writ of error coram nobis issues for correction of a judgment entered in ignorance of certain matters of fact which, if they had been known to the court rendering the judgment, would not have been entered. Cauley v. State, 34 Ala.App. 111, 37 So.2d 153.” Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486 (1964). In Ex parte Vaughn, 395 So.2d 95 (Ala.1979), the Court further indicated the purpose served by this extraordinary writ as follows:

“The office of writ of error coram no-bis, under Alabama law, is to bring to the attention of the court an error of fact, unknown to the court or the affected party at the time of trial, which had it been known, would have prevented the judgment challenged; indeed, the writ is in effect a motion for new trial on the ground of newly discovered evidence. Tillis v. State, 349 So.2d 95 (Ala.Cr.App. 1977), cert. den. Ex parte Tillis, 349 So.2d 100 (Ala.1977)....”

Id. at 96. This is consistent with the generally recognized reason for a court to grant a writ of error coram nobis. See generally 18 Am.Jur.2d Coram Nobis §§ 2, 3 (1965).

While the Court has emphasized that this writ is not intended to provide appellate review where the complaining party has not sought an appeal and the time to appeal has long since expired, Thomas v. State, 280 Ala. 109, 110, 190 So.2d 542 (1966), the trial court’s findings with regard to Longmire’s petition for writ of error coram nobis is cause for this Court to re-examine its traditional application in this instance.

An appeal is deemed “perfected” if the defendant, upon rendition of judgment, expresses a desire to appeal. Ex parte Loyd, 275 Ala. 416, 421, 155 So.2d 519 (1963); See also Goolsby v. State, 374 So.2d 927, 929 (Ala.Cr.App.1978). Rule 3(a)(2) of the Alabama Rules of Appellate Procedure provides that notice of appeal may be made in either of the following two ways:

“In criminal cases, an appeal permitted by law as a matter of right to an appellate court shall be taken either by filing an oral notice of appeal at the time of sentencing which shall be entered of record or by filing a written notice of appeal with the clerk of the trial court, within the time allowed by Rule 4. The clerk of the trial court shall serve copies of the notice of appeal on persons and parties as provided by (d)(2) of this rule.”

The findings made by the trial court indicate that although petitioner expressed his desire to appeal to his attorney, through no fault of his own, an appeal was never entered on his behalf. The use of a writ of error coram nobis to challenge the inadequacy of legal counsel where there would otherwise be no remedy has been previously recognized by the Court of Criminal Appeals, to-wit:

“Challenges based on the inadequacy of counsel constitute grounds for coram nobis, Browning v. State, 57 Ala.App. 217, 326 So.2d 778 (1975), cert. denied, 295 Ala. 392, 326 So.2d 783 (1976), despite earlier indications to the contrary. Ex parte Argo, 41 Ala.App. [442] at 444, 137 So.2d 755; Ex parte Gammon, 255 Ala. 502, 505, 52 So.2d 369 (1961). However counsel is presumed adequate, Willis v. State, 42 Ala.App. 85, 90, 152 So.2d 883 (1963), and the fact that the petitioner was convicted does not prove that counsel lacked zeal or competence, Butler v. State, 279 Ala. 311, 313, 184 So.2d 823 (1966), Echols v. State, 276 Ala. 489, 491, 164 So.2d 486 (1964), particularly when counsel has been retained rather than appointed. Ex parte Gammon, 255 Ala. at 505, 52 So.2d 369; Houston v. State, 332 So.2d 408, 409 (Ala.Cr.App. 1976).”

Summers v. State, 366 So.2d 336, 341 (Ala.Cr.App.1978). Irrespective of the fact that petitioner was not apprised that he, as an indigent, was entitled to a free trial transcript and appointed counsel for purposes of an appeal, there was a showing that he was aware that he could appeal his conviction and that he expressed his desire to appeal to his court-appointed attorney. See Heflin v. State, 278 Ala. 106, 108, 176 So.2d 37 (1965).

In reviewing several Alabama cases, the Fifth Circuit Court of Appeals has made the following pronouncements which we believe apply to the circumstances of this case.

In Horsley v. Simpson, 400 F.2d 708 (1968), the Fifth Circuit stated:

“There can be no question that an indigent who manifests a desire to appeal his conviction is entitled to the services of a court-appointed attorney. In Anders v. State of California [386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)], the Supreme Court held that, if counsel determines that an appeal would be wholly frivolous, he should notify the appellate court and request to withdraw. The request must be accompanied by a brief referring to any legal points arguable on appeal and the appellate court, not counsel, must then examine the record to decide whether the case is devoid of merit. It is true that in Worts v. Dutton [395 F.2d 341 (5th Cir.1968)] we held that where appointed counsel unequivocally refuses to handle the appeal and makes this decision clear to his indigent client, if the client does not thereafter indicate to some responsible state official that he wishes to appeal or to have counsel on appeal, there has been no denial of his constitutional right to a direct appeal. We are of the opinion, however, that there are material factual differences between Worts and the instant case which' compel our conclusion that Appellant was denied his right to a direct appeal.
“... Secondly, it is abundantly clear from the record that Appellant continuously evidenced a desire for appellate review of his conviction. The record shows that, after his conviction, Appellant wanted his counsel to appeal and that approximately three months after conviction within the time for filing an appeal in the state of Alabama, Appellant inquired of the Clerk of the Court of Appeals about the status of his appeal. We think that this communication to the Clerk constitutes a sufficient showing that some responsible state official had knowledge of Appellant’s desire to appeal.” (Citations omitted.)

Id. at 711-712. Five years later in Daniels v. Alabama, 487 F.2d 887 (1973), the Fifth Circuit remarked:

“Douglas v. California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, established the principle that convicted indigents have a constitutional right to representation on appeal. In applying the Douglas standard, this Court has developed two distinct approaches, one for cases in which the defendant has himself retained trial counsel, and another for controversies where the defendant is represented by a court-appointed attorney. Goforth v. Dutton, 5 Cir.1969, 409 F.2d 651, 653. The differing standards are well set out in Gregory v. United States, 5 Cir.1971, 446 F.2d 498, 499-500:
“ ‘If the trial attorney was retained it must be known to the court or some other responsible state official that the defendant was indigent and that he desired to appeal. Beto v. Martin, 5 Cir.1968, 396 F.2d 432. However, when the defendant is represented by court-appointed counsel a different standard applies, Goforth v. Dutton, supra, and the focus of the inquiry is not on what the defendant made known to the state, but on what the state, acting through court-appointed counsel, revealed to the defendant. Accordingly, we have held that representation is inadequate and the right of appeal is denied where appointed counsel fails to fully inform the client of his appellate rights. Byrd v. Smith, 5 Cir.1969, 407 F.2d 363.’
“Here, Daniels’ court-appointed trial counsel testified in the state coram nobis hearing that the last time he had discussed Daniels’ case with him was at trial, and that he did not recall having advised Daniels of his right to appeal and his right to appellate counsel. The record reveals that Daniels was not advised by the court or from any source that he had these rights, guaranteed to him by the Sixth and Fourteenth Amendments. Rought v. Henderson, 5 Cir.1971, 445 F.2d 622; Andry v. Henderson, 5 Cir.1970, 429 F.2d 26; Wainwright v. Simpson, 5 Cir.1966, 360 F.2d 307. Daniels is therefore entitled to have his writ granted, subject to the state’s retrying him, or granting him an out-of-time appeal.”

Id. at 888. See Malone v. Alabama, 514 F.2d 77, 79-80 (5th Cir.1975).

The Court of Criminal Appeals has held on past occasions that the notion of an out-of-time appeal does not exist in this state, Goolsby v. State, supra, at 928; Accord, Ex parte State v. Kebe, 399 So.2d 348 (Ala.1981), and we do not attempt here to embrace such a concept; but, in an effort to assure that both justice and fairness prevail, the Court believes that the circumstances of this case warrant our granting the petitioner an appeal of his conviction. Although counsel for the defendant argues that the only remedy is a new trial where, as in this case, a writ of error coram nobis is involved, we conclude otherwise. The findings of the trial court are that the defendant desired an appeal of his conviction and informed his appointed counsel of his desire to appeal. Through no fault of his own, however, an appeal was never perfected and the time for petitioner’s appeal lapsed. Since these are not newly discovered facts which would alter the judgment, thereby necessitating a new trial, coram nobis was inappropriate. Nevertheless, Longmire, based upon findings made by the trial court after judgment and after the time for appeal of that judgment had expired, made a sufficient showing under the doctrine of Daniels, to entitle him to an appeal; therefore, we reverse the Court of Criminal Appeals and remand this case to that court for a review consistent with this holding.

REVERSED AND REMANDED.

FAULKNER and JONES, JJ., concur.

TORBERT, C.J., and ADAMS, J., concur in the result.

ALMON, SHORES, EMBRY and BEAT-TY, JJ., dissent.

SHORES, Justice

(dissenting).

I dissent. I would quash the writ as improvidently granted.

EMBRY, J., concurs.

      . Proposed Rule of Criminal Procedure 32.1(f) provides for relief after judgment in criminal cases similar to that available in civil cases under Rule 60(b), ARCP. Rule 32.1(f) provides that a person who has been convicted of a criminal offense may file a petition in the court of original conviction to secure appropriate relief on the ground that failure to appeal within the prescribed time was without fault on the petitioner's part. The comment to this section reads in part:
      "Section (f) includes the situation in which the defendant fails to appeal because the trial court despite the requirements of 26.11, did not advise the defendant of his appeal rights, and the situation in which the defendant intended to appeal and believed timely appeal had been filed by his attorney when in reality it had not.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James LONGMIRE v. STATE.
    3 Div. 445.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-48.
   PER CURIAM.

AFFIRMED ON AUTHORITY OF ALABAMA SUPREME COURT 443 So.2d 1265, DECEMBER 10, 1982.

All the Judges concur.


author: BOWEN, Judge.

text:
    William Edward HIGHTOWER v. STATE.
    1 Div. 365.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Dec. 28, 1982.
    Thomas M. Haas and John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was charged by solicitor’s complaint with sexual misconduct. Sentence was one year in the county jail.

The issue presented by this appeal is whether a defendant can be convicted of sexual misconduct under an indictment charging that the sexual intercourse was without consent where the evidence shows that the intercourse was with consent obtained by artifice.

The State’s evidence shows that late in the evening of June 7, 1981, twenty-four year old Vergilyn Williams and her boyfriend, Lee Abston, went to several nightclubs in Mobile. Around 4:00 o’clock the next morning they went to Oaklawn Cemetery where they had sexual intercourse in the back seat of Ms. Williams’ car. Abston then passed out.

Soon thereafter, a police car drove up and stopped a short distance behind Ms. Williams’ car. The defendant, a Mobile policeman, got out and began a conversation with Ms. Williams. During a portion of this conversation, Ms. Williams was standing outside of her car despite the fact that she was only wearing her “bra and blouse” and shoes.

The defendant stated that she would either have to go to jail or “give him a piece of leg.” He repeated this “threat” some 10-2Ó times during the thirty minute conversation after which the defendant and Ms. Williams engaged in sexual intercourse on the trunk of Ms. Williams’ car. The defendant then woke up Abston and told him that they would have to leave the cemetery. Abston and Ms. Williams drove to another location where they “had sex” approximately thirty minutes after Ms. Williams and the defendant had engaged in sex.

Following the statutory language of Alabama Code 1975, Section 13A-6-65, the complaint charged that the defendant committed the crime of sexual misconduct by engaging in sexual intercourse with Ms. Williams “without her consent.” The evidence proved that the defendant engaged in sexual intercourse with Ms. Williams with her consent where consent was obtained by the use of artifice.

Sexual misconduct is defined in Section 13A-6-65:

“(a) A person commits the crime of sexual misconduct if:
“(1) Being a male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by sections 13A-6-61 (Rape in the first degree) and 13A-6-62 (Rape in the second degree); or with her consent where consent was obtained by the use of any fraud or artifice.”

Lack of consent is specifically defined by statute. Section 13A-6-70. Under the facts of this case the State wholly failed to prove that the sexual act was committed without Ms. Williams’ consent because there was no evidence of “forcible compulsion” as defined by Section 13A-6-60(8). There was neither physical force that overcame earnest resistance nor express or implied threat that placed Ms. Williams in fear of immediate death or serious physical injury to herself or another.

“Artifice” is defined in Black’s Law Dictionary 103 (5th ed. 1979) as “(a)n ingenious contrivance or device of some kind, and, when used in a bad sense, it corresponds with trick or fraud. It implies craftiness and deceit, and imports some element of moral obliquity.” See also 6A C.J.S. Artifice 295 (1975): “The art of making; an ingenious contrivance or device of some kind; subtle or deceptive art in contriving, trickery, cunning, strategy or finesse; a trick or fraud. The word ‘scheme’ has been compared with ‘artifice’.”

The defendant’s actions fall within the conduct proscribed by Section 13A-6-65 defining the crime of sexual misconduct where the consent to sexual intercourse is obtained by the use of any fraud or artifice. This section is broad enough to include “situations where the naivete of the victim or guile of the actor is sufficient to allow the actor to gain sexual access to the person of another through some artifice or fraud.” Commentary to Section 13A-6-65.

We find no fatal variance between the indictment charging sexual intercourse without consent and the proof of sexual intercourse with consent. The principle in this case is the same as in the crime of rape.

“While, as a general rule, the allegations of an indictment charging a particular offense cannot be sustained by proof of another and distinct offense, where the statute defining rape as an act of intercourse under different specified circumstances is considered as creating but one offense, ... rape may be proved by evidence bringing the case within any one of the subdivisions of the statute regardless of the one which the indictment or information alleges was violated; the crime is established by proof of the circumstances under any one of the subdivisions although the indictment or information is framed on another.”
75 C.J.S. Rape § 45b (1952).

“(A) fatal variance will not result where the allegations and proof, although variant, are of the same legal signification.” 42 C.J.S. Indictments And Informations § 262 (1944). Thus, under an indictment against a sheriff for a negligent escape, a conviction may be had on proof of a voluntary escape. Nall v. State, 34 Ala. 262, 265 (1859).

In Marsh v. State, 418 So.2d 191 (Ala.Cr. App.1982), cert. denied, 81-872 (Ala., August 27, 1982), this Court held that there was no fatal variance and the trial judge properly instructed the jury on intentional murder although the indictment only charged reckless murder.

“We find no variance between the indictment and the oral charge. The indictment charged that appellant intentionally killed Herbert Belt in violation of Section 13A-6-2, and the oral charge correctly included the alternative provision of Section 13A-6-2. The trial court was obligated to charge on the entire statute should the proof so warrant, as in the case at bar.
“The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted. Proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled. House v. State, 380 So.2d 940 (Ala.1979). Appellant here was charged with intentionally causing the death of another person in violation of Section 13A-6-2, Code 1975. Certainly, this clearly gives the appellant sufficient notice of the charge to enable him to defend himself at trial.”

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte William Edward HIGHTOWER. (In re William Edward HIGHTOWER v. STATE of Alabama).
    82-343.
    Supreme Court of Alabama.
    Nov. 10, 1983.

      John Bertolotti, Jr. and Thomas M. Haas, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
   ALMON, Justice.

Petitioner Hightower was convicted of the crime of sexual misconduct, a misdemeanor. The Court of Criminal Appeals, 443 So.2d 1270, affirmed, holding that there was “no fatal variance between the indictment charging sexual intercourse without consent and the proof of sexual intercourse with consent.”

The solicitor’s complaint charged that “the defendant, a male, did commit the crime of sexual misconduct in that the said William Edward Hightower, a male, did engage in sexual intercourse with Vergilyn Williams, a female, without her consent in violation of 13A-6-65 of the Code of Alabama....” The proof showed that he obtained her consent by artifice. The jury found him guilty as charged and the court sentenced him to one year in jail. The trial court denied his motions for judgment of acquittal and for new trial. After affirmance by the Court of Criminal Appeals, Hightower petitioned this Court for writ of certiorari.

The solicitor’s complaint brought against the petitioner is in the nature of an indictment, “differing only in that [it] was presented by a public officer ... upon his oath of office, rather than by a grand jury on their oath. See Code of Alabama 1975 § 15-7-1, § 15-8-1.” Gunn v. City of Birmingham, 402 So.2d 1122, 1124 (Ala.Cr. App.1981).

An indictment must specify the conduct sought to be condemned so that the defendant may have an opportunity to prepare a defense if one is available. Constitution of Alabama of 1901, Section 6; see, e.g., Tyson v. State, 361 So.2d 1182 (Ala.Cr.App.1978); Mason v. State, 259 Ala. 438, 66 So.2d 557 (Ala.1953). In this case the solicitor’s complaint specified one type of conduct and the proof showed another. This was also the case in Owens v. State, 46 Ala.App. 591, 246 So.2d 478 (1971), where the indictment specified escape from the penitentiary but the proof was of escape from the custody of a prison guard while working on a road gang.

In House v. State, 380 So.2d 940 (Ala.1979), the situation was somewhat different. In that case the conduct proved was the same as that charged; only the designation of the victim was different. In House, the defendant was charged and convicted under Code 1975, § 13-1-42, which pronounced the felony of assaulting with a deadly instrument “any peace officer or other law enforcement officer” engaged in the active discharge of his duties. The variance related to the description of the victim — the indictment referred to him as a deputy sheriff and the proof showed him to be a jailer.

This Court held that this variance was not material because “it is immaterial whether the victim is a deputy sheriff or jailer so long as he is a law enforcement officer, engaged in his duties at the time of the assault,” and specifically observed that “[t]his is not a case where the defendant was misled by the variance between the indictment and proof in regard to the capacity in which the victim of the assault was employed.” House v. State, supra, 380 So.2d at 942.

As noted in House,

“The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled.”

House v. State, supra, 380 So.2d at 942-43 (emphasis added). See also Mauldin v. State, 376 So.2d 788 (Ala.Crim.App.1979), cert. denied, 376 So.2d 793 (Ala.1979); Blackmon v. State, 46 Ala.App. 274, 240 So.2d 696 (1970), cert. denied, 286 Ala. 733, 240 So.2d 699 (1970).

In the case át bar, just as in Owens, supra, the indictment charged the defendant with the wrong type of conduct proscribed by the statute defining the offense. Code 1975, § 13A-6-65, provides in part:

“(a) A person commits the crime of sexual misconduct if:
(1) Being male, he engages in sexual intercourse with a female without her consent, under circumstances other than those covered by sections 13A-6-61 and 13A-6-62; or with her consent where consent was obtained by the use of any fraud or artifice

(Emphasis added.)

There is a difference between “without consent” and “with consent obtained by fraud or artifice.” Section 13A-6-70 provides that lack of consent results from, among other things, “forcible compulsion.” The definition of forcible compulsion is found at § 13A-6-60(8), and, under that definition, the solicitor’s complaint charging sexual intercourse “without consent” would have put petitioner on notice that he might have to defend against a charge of coercing a female into sexual intercourse by “[pjhysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” This is entirely different from the proof that he was in fact obliged to defend against, as the Court of Criminal Appeals acknowledged when it stated that “the State wholly failed to prove that the sexual act was committed without Ms. Williams’ consent because there was no evidence of ‘forcible compulsion’ as defined by Section 13A-6-60(8).”

We find unconvincing the citations by the Court of Criminal Appeals in support of its conclusion that there was no fatal variance between the misconduct charged in the solicitor’s complaint and the proof of the other kind of sexual misconduct defined in § 13A-6-65(a)(l). We note that the indictment forms prepared by the Alabama Law Institute give two separate forms for sexual misconduct committed without consent and sexual misconduct committed by consent obtained through fraud or artifice.

The defendant is called upon to answer only the specific charge contained in the indictment. Underwood v. State, 33 Ala.App. 314, 33 So.2d 379 (1948). “No proposition of law is more fundamental than the one requiring that the proof at trial must correspond with the material allegations of the indictment.” Gray v. State, 346 So.2d 974, 978 (Ala.Cr.App.1976), cert. quashed, 346 So.2d 978 (Ala.1977); Owens v. State, supra, 46 Ala.App. at 592, 246 So.2d at 478. The Court of Criminal Appeals erred in holding that there was no fatal variance between the solicitor’s complaint and the proof.

For the reasons stated, the judgment of the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Justices concur.


author: BOWEN, Presiding Judge.

text:
    William Edward HIGHTOWER v. STATE.
    1 Div. 365.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
   AFTER REMANDMENT

BOWEN, Presiding Judge.

Pursuant to the order of the Alabama Supreme Court in Hightower v. State, 443 So.2d 1272 (Ala.1983), the judgment of the circuit court is reversed and this cause is remanded.

REVERSED AND REMANDED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Ricky Glenn McINTOSH v. STATE.
    4 Div. 11.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    Rehearing Denied March 1, 1983.

      James W. Parkman, III of Parkman & Little, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Rape, first degree; life imprisonment.

The victim in this case was seven years old at the time of the incident. She testified that, in August, 1981, she lived with her mother at 51 Johnson Homes in Do-than, Alabama. On Sunday, August 30, 1981, she left her aunt’s house with appellant and went to her mother’s house. They watched television for awhile, then she went to her room, put on her nightgown, and went to sleep.

The victim stated that she was later awakened by appellant who took off her nightgown and “got her bootie.” When asked to point out what she meant by “boo-tie,” the child pointed to her vagina. She acknowledged that the appellant put his private parts inside her “bootie,” it hurt and she cried. Afterwards she saw blood on the sheets. The appellant also touched her on the “butt.” When asked to point out what she meant by “butt,” the victim indicated her posterior. She was told not to tell anyone or the appellant would “whop” her. He then went into the living room and she went back to sleep.

The victim testified that the next day she told her aunt and grandmother what had happened. About a week after this incident she went to the hospital where she was examined by a doctor.

On cross-examination, the child denied that her grandmother or the assistant district attorney had told her what to say. She responded affirmatively to several questions by defense counsel as to whether “bootie” meant “butt” or “behind” and acknowledged that she had told another little girl, Tabitha Whaley, that the appellant did not do this to her.

During re-direct examination, the victim stated that she told Tabitha that the appellant did not do this to her because she was “scared.” When the prosecutor again asked her to point out what she meant by “bootie,” the child again pointed to her vagina.

On re-cross-examination, the victim answered affirmatively when defense counsel asked her if “bootie” means “your butt” and if the appellant “got your behind,” “got your bootie,” and “got your butt.”

Sgt. Gary Kinney of the Dothan Police Department testified that around 12:15 P.M. on September 7,1981, he was called to the emergency room of the Southeast Alabama Medical Center where he talked with the seven-year-old victim, her aunt, one Russell Snell, and the examining doctor. After she was treated, the victim, her aunt, and Snell went to the police station with Kinney and he obtained statements from them. Kinney then telephoned an assistant district attorney and obtained an authorization for a warrant.

According to Kinney, he then went to the residence of the victim’s grandmother where he talked with her and again with Snell. He requested Snell to make a telephone call to 51 Johnson Homes and, “if anyone answered the phone, just to hang up.” Snell complied with this request in Kinney’s presence. Kinney, accompanied by several officers, then proceeded to 51 Johnson Homes. It took only two to three minutes to travel from the grandmother’s house to 51 Johnson Homes. Upon arriving, the officers knocked on the door of the apartment several times, each time announcing that they were police officers. When no one answered, they obtained a key from the Dothan Housing Authority and entered the apartment where they found appellant and arrested him. This was between 3:10 and 4:00 P.M.

The officers seized several items at the time of the arrest, including a yellow flowered sheet found soaking in a bucket of bleach, a yellow sheet found in a washing machine, and a sheet and pillowcase containing a reddish stain found on the twin bed in the back bedroom. These items were later delivered to the crime lab in Enterprise.

The day following appellant’s arrest, Kinney obtained a court order requiring appellant to submit to tests for venereal disease and to allow samples to be taken from him needed for a “Sex Crime Kit.” On September 9, 1981, Kinney took appellant to the Houston County Health Department where Joseph Ellington performed a test for venereal disease. Kinney then took appellant to the Southeast Alabama Medical Center where samples for a “Sex Crime Kit” were taken.

On cross-examination, Kinney testified that he seized the sheets in the apartment because the victim described them in her statement.

Joseph Ellington testified that he was employed by the Houston County Health Department in the V.D. control section. He examined appellant pursuant to a court order and prepared a culture plate to be used in testing for venereal disease. He treated appellant with Benemid and Ampi-cillin.

According to Ellington, the most prominent form of transmission of gonorrhea is through sexual contact. Outward symptoms of the disease usually manifest themselves in a male between three and seven days after contact with an infected person. He stated that a person may have gonorrhea and be asymptomatic, showing no outward, physical symptoms of the disease.

On cross-examination, Ellington acknowledged that, at the time he examined the appellant, no physical symptoms of gonorrhea were found. Further, there are no tests which can determine whether a patient is asymptomatic or when or how a person contracted gonorrhea.

Paula Landigan, a microbiologist and the director of the Dothan branch laboratory of the State Department of Public Health, testified that she performed certain tests, including a Graham Stain, on the culture taken from appellant. The results of the tests were “positive presumptive” for gonorrhea, meaning that appellant presumptively had the disease. Landigan stated that the testing procedure is ninety-five percent accurate and acknowledged that the same tests were performed on the victim’s mother with the results being negative.

Dr. Michael Johnson testified that he examined the victim on September 7,1981. A pelvic examination revealed multiple abrasions around the genitals that were old, an abnormal amount of vaginal discharge, and that the hymen was missing. Dr. Johnson stated that he took a sample of the discharge and prepared a slide for a Graham Stain and a culture plate. Various identification information was attached to these items and they were then sealed and sent to the hospital lab. Johnson received the results of the Graham Stain approximately forty-five minutes later and then treated the victim for gonorrhea.

On cross-examination, Johnson stated that he had done a complete physical examination of the victim and that there was no physical evidence of violation of the rectum.

Linda Adams testified that she was a medical technologist employed in the lab of the Southeast Alabama Medical Center. She stated that the hospital has a medical computer system and explained that when a physician orders a test from the emergency room, a nurse or receptionist puts the order into the computer system along with information about the patient. The order and information are then received on another computer system in the lab.

At 12:59 P.M., on September 7, 1981, Adams received through the computer a request from Dr. Johnson to perform a Graham Stain on a slide labelled with the victim’s name. She performed the test and reported the results to the emergency room at 1:30. Adams stated that specimens such as the slide involved here, are delivered to the lab reception area by emergency room personnel. Only hospital personnel have access to the laboratory. She testified that the slide bearing the victim’s name was sealed when she received it. Adams stated the results of the test in hypertechnical language.

Dr. Johnson was recalled and testified that, based on his examination of the victim and the lab report, he concluded that there was sufficient evidence to treat the victim for gonorrhea.

The State rested and appellant’s motion to exclude was overruled.

Charles F. Brooks, a crime lab analyst with the Alabama Department of Forensic Sciences, testified for the defense. He examined the stains on the sheets found in the apartment at 51 Johnson Homes, but tests did not reveal the presence of blood or semen. On cross-examination, Brooks stated that the test to determine the presence of blood or semen would be affected if the sheets had been machine washed or soaked in bleach.

Nine-year-old Tabitha Whaley testified that she was “sort of” a friend of the victim. During a conversation the victim told her that appellant “didn’t do nothing to her and that her grandmother made it up.” Further, the victim told her not to tell anyone.

During cross-examination, Tabitha stated that she and the victim were no longer good friends, even though she had told the assistant district attorney prior to trial that they were still good friends. She also acknowledged that on the day of her conversation with the victim “all the kids [at school] were asking her questions about what happened and kidding her about that.”

The appellant testified in his own behalf. He stated that he had lived with the victim’s mother, Ruby Brown, for three years and that the victim had lived with them for the last two and one-half years. According to appellant, Ruby left for Jacksonville, Florida on August 27, 1981, and he saw the victim at her aunt’s house around 7:45 P.M. on August 30. She went to the apartment at Johnson Homes and spent the night there alone with him, but appellant denied committing any sexual assault on her.

According to appellant, the last time he had sexual relations with Ruby Brown was August 27, 1981. He had sexual relations with other women on September 4, 6, and 7.

On cross-examination, appellant stated that he soaked the sheets in the bucket because he did not know how to use the washing machine. He acknowledged that he had written letters, after his arrest, to the victim’s mother and grandmother requesting them not to pursue the charges and to tell the district attorney that they would not testify. He also admitted that he had been previously convicted of felony possession of marijuana.

A social worker testified that she placed the victim in her grandmother’s custody on August 31, 1981, and the victim did not tell her of the alleged rape at that time.

The victim’s grandmother, Janette Brown, denied threatening to have appellant arrested if he did not give her custody of the victim and her brother. Further, she stated that sometime after Sunday, August 30, appellant told her that he was going to take the victim and her younger brother and go to Florida.

Appellant testified that around August 28, the grandmother called him and requested that the children be brought to her. When he refused, she told him she was going to call the police and make trouble. She called three more times and threatened to have him arrested, but he did not report these incidents.

I

Appellant contends that the trial court erred in overruling his motion to exclude. He argues that the State did not prove the essential element of sexual intercourse and therefore failed to make out a prima facie case of rape.

Section 13A-6-60(l), Code of Alabama 1975, defines “sexual intercourse” as follows: “Such term has its ordinary meaning and occurs upon any penetration, however slight; emission is not required.”

The victim testified that the appellant put his private parts inside her “boo-tie.” Appellant insists that she interpreted “bootie” to mean her “butt” or “behind” and therefore his alleged conduct would have been “deviate sexual intercourse” as defined in § 13A-6-60(2), which is not an element of rape. Although the child responded affirmatively to defense counsel’s leading questions that “bootie” meant “butt” or “behind,” the record clearly shows that when she was asked on two separate occasions to point to her “bootie,” she pointed to her vagina. Moreover, her physical condition as described by Dr. Johnson distinctly indicated sexual intercourse as defined by § 13A-6-60(l). In fact, Dr. Johnson stated that his examination revealed no physical evidence of a violation of the victim’s rectum. Therefore, we are of the opinion that the State established a prima facie case of rape. See Beckley v. State, 353 So.2d 542 (Ala.Cr.App.1977).

Appellant points out that the victim had previously told another child that the appellant did not do this to her. A prior inconsistent statement may be explained by a witness. Johnson v. State, 49 Ala.App. 356, 272 So.2d 282 (1972). The victim explained that she made this statement because she was “seared.” The matter of the prior inconsistent statement and the victim’s explanation as to why she made it could have been considered by the jury in determining her credibility, but did not af-feet the State's presentation of a prima facie case.

II

Appellant maintains that the evidence was insufficient to support his conviction for first degree rape.

In the present case the evidence presented by appellant was in conflict with that presented by the State. It is well settled that conflicting evidence presents a jury question, Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980), and “[a] verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust.” Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. denied, 378 So.2d 1173 (Ala.1979). It is our judgment that the evidence in this case was sufficient to sustain the verdict.

III

The appellant insists that the chain of custody for the medical slide containing the victim’s discharge sample was not established and the trial court committed reversible error in allowing testimony as to the results of the test performed on the slide.

“The purpose in establishing a chain of custody is to show a reasonable probability that the [evidence] was not tampered with.” Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976). In our opinion, the evidence established a “reasonable certainty that there had been no substitution, alteration, or tampering with” the slide. Oliver v. State, 399 So.2d 941 (Ala.Cr.App.1981). Moreover, the lab technician’s testimony concerning the results of the test performed on the slide was so technical in nature it is doubtful that its admission was harmful to appellant.

IV

Appellant claims that the results of the gonorrhea tests performed on him were inadmissible because the tests were the result of an unlawful, warrantless arrest in violation of his Fourth Amendment rights.

A hearing was held prior to trial on appellant’s motion to suppress. Sgt. Kinney testified essentially as he did at trial. In addition, he stated that he learned, in talking to the victim’s grandmother and aunt, that appellant intended to leave for Florida either the night of September 7 or very early the morning of September 8. He further stated that he could not obtain an arrest warrant on September 7 because the courthouse was closed for Labor Day.

The appellant testified that he was arrested on September 7, 1981 at 51 Johnson Homes. He stated that although his name was not on the lease, he considered the apartment to be his residence, he had been living there for six months, he had all his clothes there, and he had made an effort to help pay the rent.

On cross-examination, he denied hearing the phone ring before the police officers arrived and also denied hearing the officers knocking at the door.

The circuit clerk of Houston County, Julia L. Trant, testified that she had the authority to issue arrest warrants for Houston County, Alabama. She stated that although it was not a common practice, she had on occasion issued arrest warrants when the courthouse was closed.

Appellant cites Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), in support of his position that his arrest was unlawful. In Payton, a majority of the United States Supreme Court held that the Fourth and Fourteenth Amendments prohibit warrantless and non-eonsen-sual entry by police officers into a suspect’s home to make a routine felony arrest, even though probable cause exists. This holding, however, was qualified by the term “absent exigent circumstances.” 445 U.S. at 590, 100 S.Ct. at 1382.

In Dorman v. United States, 140 U.S. App.D.C. 313, 435 F.2d 385 (1970), the D.C. Court of Appeals set out the following factors which it deemed relevant in determining whether the circumstances in a given case are sufficiently exigent to permit a warrantless entry and arrest:

“(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect ‘is reasonably believed to be armed,’ (3) ‘a clear showing of probable cause ... to believe that the suspect committed the crime,’ (4) ‘strong reason to believe that the suspect is in the premises being entered’; (5) ‘a likelihood that the suspect will escape if not swiftly apprehended’; and (6) ‘the peaceful circumstances of the entry.’ ” United States v. Reed, 572 F.2d 412 (2d Cir.1978) (quoting Dorman, supra).

Examining these factors in the present case, we are of the opinion that exigent circumstances did exist to justify the warrantless arrest of appellant in his home. Although appellant was not armed, there is substantial evidence to show that each of the other factors was present. Also, the arrest^ was made during daylight, and whether the arrest was made during the day or at night is an additional consideration in determining the reasonableness of an arrest. Dorman, supra; United States v. Campbell, 581 F.2d 22, n. 5 (2d Cir.1978). The fact that Kinney might have been able to obtain a warrant had he located Ms. Trant does not alter our finding that exigent circumstances existed. Cf. Dorman, supra, (where neither the judge who normally issued warrants, nor the part-time commissioner was readily available, the court found exigent circumstances existed even though the parties stipulated that over one hundred other judges also had the authority to issue a warrant).

Not only was appellant’s arrest lawful, but the gonorrhea test was performed pursuant to a court order. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore the admission of the test results was proper.

V

Appellant argues that the trial court abused its discretion in denying his motion for new trial because a juror failed to answer truthfully a question propounded to the venire. The members of the venire were asked, “Have any of you or your close friends or relatives ever been the victim of any type crime?” The record shows that juror Albert Reynolds, Jr., made no response to that question.

At the hearing on the motion for new trial, Reynolds’ niece testified that she had been raped and that the trial of her attacker was held the same week her uncle was on jury duty. Although she stated that she saw her uncle in “the court,” on cross-examination she testified that he did not see her. She had not discussed her case with Reynolds, nor even with her own father. To her knowledge, there were no articles in the newspaper about her case.

Albert Reynolds testified that, at the time of appellant’s trial, he did not know that his niece had been the victim of rape. Further, he had seen his brother and sister-in-law only once in the three or four months prior to appellant’s trial and he never told them he had been summoned for jury duty.

Reynold’s brother testified that neither he nor his wife had told Albert Reynolds that their daughter had been raped. Further, he stated that Albert Reynolds had not told him that he had been summoned for jury duty the week of December 14, 1981.

In Knighten v. State, 402 So.2d 363 (Ala.Cr.App.1981), we find the following:

“Although the defendant has a right to have questions answered truthfully on voir dire examination of the venire, the failure of a juror to make a proper response to a question regarding his qualifications as a juror does not automatically entitle the defendant to a new trial. The proper inquiry is whether the defendant’s rights were prejudiced by the juror’s failure to properly and correctly respond.”

The testimony given at the hearing on the motion for new trial clearly shows that juror Reynolds had no knowledge at the time of appellant’s trial that his niece had been raped. Therefore, this fact could not in any way have prejudiced appellant’s rights.

Moreover, the decision on a motion for new trial rests within the sound discretion of the trial court. Hewitt v. State, 389 So.2d 157 (Ala.Cr.App.1980). In reviewing the trial court’s ruling, this court will indulge every presumption in favor of its correctness. Smith v. State, 393 So.2d 529 (Ala.Cr.App.1981). We find no showing of abuse of discretion in this case.

VI

The appellant asserts that felony possession of marijuana is not a crime involving moral turpitude and the trial court erred in allowing the assistant district attorney to use that conviction for impeachment purposes.

In Gholston v. State, 338 So.2d 454 (Ala.Cr.App.1976), this cóürt held that the sale of marijuana is a crime involving moral turpitude. Two years later we held that misdemeanor possession of marijuana is not a crime involving moral turpitude, but left unanswered the question of whether felony possession of marijuana involved moral turpitude. Luker v. State, 361 So.2d 1124 (Ala.Cr.App.), cert. dismissed, 361 So.2d 1127 (Ala.1978).

Several factors were considered by this court in Gholston in determining that the sale of marijuana was a crime involving moral turpitude. The first of these was the fact that the offense is a felony. While all felonies do not necessarily involve moral turpitude, “the fact that [a crime] is a felony, as well as the extent of the punishment prescribed by statute, is worthy of consideration on the question whether the crime involves moral turpitude.” Ghol-ston, supra. Felony possession of marijuana is punishable by a minimum of two years imprisonment for amounts less than 2.2 pounds, § 20-2-70(a), Code of Alabama 1975, and a minimum of three years imprisonment plus a $25,000 fine for amounts over 2.2 pounds, § 20-2-80, Code of Alabama Supp.1982.

Another consideration in Gholston was the fact that marijuana is a Schedule I drug with a high potential for abuse. Marijuana remains a Schedule I drug under both the Alabama Uniform Controlled Substances Act and the Federal Controlled Substances Act, 21 U.S.C.A. § 812(c) (1981), and continues to be a major public health problem in the United States, with wide-spread use and abuse. See generally, National Institute on Drug abuse, Marijuana and Health (1982).

We also noted in Gholston that marijuana has no accepted medical use. Appellant points out that the Alabama legislature has recently passed the Controlled Substances Therapeutic Research Act allowing experimentation on the use of marijuana in the treatment of glaucoma and to alleviate the side effects of cancer chemotherapy. Ala. Code § 20-2-111 (Supp.1982). Although the legislature has condoned certain limited experimentation for the possible medical uses of marijuana, it is clear that the substance still has no accepted medical use. The Secretary of Health and Human Services stated recently:

“The IOM report summarizes evidence concerning possible therapeutic effects of marijuana or its constiuents in treating several medical disorders, including most notably glaucoma and the nausea induced by cancer chemotherapy. In each instance, the findings are described as preliminary. It is reported that marijuana and delta-9THC often produce troublesome psychotropic or cardiovascular side effects that limit their therapeutic usefulness, particularly in older patients. It is concluded that the greatest therapeutic potential probably lies in the use of synthetic analogues of .marijuana derivatives with higher ratios of therapeutic to undesirable effects. It should be emphasized that possible therapeutic benefits in no way modify the significance of the negative health effects of marijuana.” Marijuana and Health, supra at 5. [Emphasis added]

Appellant argues that felony possession differs from sale of marijuana because selling marijuana is automatically a felony while possession may be a misdemeanor offense. Misdemeanor possession of marijuana is, however, a one-time exception and exists only for marijuana held for “personal use.” Ala.Code § 20-2-70(a) (1975); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala.1977). Felony possession connotes either a subsequent offense, which may give rise to an inference that the defendant has a blatant disregard for the law, or possessing marijuana other than for personal use, which may give rise to an inference that it is held for sale.

After reviewing all the considerations discussed above, we are of the opinion that felony possession of marijuana is a crime involving moral turpitude.

For the reasons stated above, the judgment of conviction by the Houston Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.

      . The lab technician stated that as a result of her testing she "reported out 3+ WBC, white blood cells, 1+ Intracellular Graham negative diplococci." When asked to explain this in laymen's terms, she said: "In layman’s terms, the 1 + is a quantitation of how much bacteria you see on the slide. And, the Intracellular Graham negative diplococci, based on what I have seen on numerous occasions, looks like G.C. and is confirmed with the culture.”

      . It was never established whether “the court" referred to either the courtroom in which her case was tried or the courtroom in which appellant was tried, or to the courthouse generally.


author: JONES, Justice.

text:
    Ex parte Ricky Glenn McINTOSH. (In re Ricky Glenn McINTOSH v. STATE of Alabama).
    82-564.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Rehearing Denied Dec. 16, 1983.

      James W. Parkman, III of Parkman & Little, Dothan, for petitioner.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
   JONES, Justice.

We granted the petition for writ of cer-tiorari in this case for consideration of a single issue: Whether Defendant’s prior conviction for felony possession of marijuana is a conviction of a crime involving moral turpitude, and thus admissible into evidence for impeachment purposes. For reasons hereinafter stated, we hold that felony possession is not a crime involving moral turpitude. Accordingly, we reverse and remand.

FACTS

Defendant Ricky Glenn McIntosh was tried for rape in the first degree, convicted by a jury, and sentenced to life imprisonment. The Court of Criminal Appeals affirmed. During the trial, Defendant took the stand in his own defense and admitted, during questioning by the assistant district attorney, to having a prior felony conviction for possession of marijuana. This evidence was admitted for impeachment purposes, over a timely objection by Defendant’s counsel.

DECISION

On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character or his inclination or propensity to commit the type of crime for which he is being tried, Loggins v. State, 52 Ala.App. 204, 290 So.2d 665 (1974); Swicegood v. State, 50 Ala.App. 105, 277 So.2d 880 (1973).

As a general rule, however, a defendant who takes the stand in his own behalf during a criminal trial can be questioned on cross examination about prior convictions for crimes involving moral turpitude. Sims v. State, 51 Ala.App. 188, 191, 283 So.2d 635, 642 (1973). Code 1975, § 12-21-162(b), which governs the admissibility of a witness’s prior conviction for a crime involving moral turpitude, states:

“As affecting his credibility a witness may be examined touching his conviction for a crime involving moral turpitude, and his answers may be contradicted by other evidence.”

The statute, however, does not define “moral turpitude,” and gives no guidance as to what crimes involve moral turpitude.

C. Gamble, McElroy’s Alabama Evidence, § 145.01(7) (3d ed. 1977), comments on the Alabama rule thusly:

“The Supreme Court of Alabama has defined the term ‘moral turpitude’ on many occasions and the following are the most commonly found definitions. Moral turpitude signifies an inherent quality of baseness, vileness and depravity. It is immoral in itself, regardless of the fact that it is punished by law. Therefore, an offense for conviction of which a witness’ credibility is lessened must be mala in se and not mala prohibitum. [Footnote 1.]”
“[Footnote 1]. Meriweather v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780 (1972) (defining moral turpitude as ‘an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowman or to society in general’); Sims v. Callahan, 269 Ala. 216, 112 So.2d 776 (1959) (contains a comprehensive discussion of these definitions); Lackey [Lakey] v. State, 206 Ala. 180, 89 So. 605 (1923); Pippin v. State, 197 Ala. 613, 73 So. 340 (1916); Gillman v. State, 165 Ala. 135, 51 So. 722 (1940).”

For an additional case defining “moral turpitude,” see Williams v. State, 55 Ala.App. 436, 437, 316 So.2d 362, 363 (1975).

In Gholston v. State, 338 So.2d 454 (Ala.Cr.App.1976), the Court of Criminal Appeals held that the sale of marijuana is a crime involving moral turpitude. Two years later, that court held that misdemeanor possession of marijuana is not a crime involving moral turpitude, but left unanswered the question of whether felony possession of marijuana involved moral turpitude. Luker v. State, 361 So.2d 1124 (Ala.Cr.App.), cert. dismissed, 361 So.2d 1127 (Ala.1978).

Because we must now decide a' question of first impression, that being whether felony possession of marijuana involves moral turpitude, a close analysis of the moral turpitude impeachment rule and its rationale proves helpful. The high probability of prejudice against a defendant makes the admissibility of his previous criminal convictions a controversial issue. Note, 18 Wake Forest L.Rev. 571 (1982).

This notion of prejudice has been said to encompass two tendencies of juries: 1) The tendency to convict not because the defendant is guilty of the charged offense, but because evidence introduced shows he is a bad person who should be incarcerated regardless of his present guilt, and 2) the tendency to infer that, because the defendant committed a prior crime, he committed the crime charged. Comment, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763 (1961). Thus, a defendant wishing to testify in his own behalf faces this dilemma: Testify and run the risk of greatly prejudicing his defense by introduction of prior convictions to impeach, or refrain from testifying and damage his defense by not telling his side of the story.

The rationale for admitting impeachment evidence when a defendant, or any other witness, testifies is that certain evidence of prior criminal acts and general character relates to a person’s propensity to lie; therefore, the jury should have and use this evidence, but only for the limited purpose of evaluating the witness’s veracity. It follows, then, for impeachment evidence of a prior criminal conviction to be admissible, the prior crime must involve such dishonesty, baseness, or depravity that its commission adversely reflects on the witness’s credibility thenceforth.

Our cases show that not all crimes punishable by imprisonment are crimes involving moral turpitude. McGovern v. State, 44 Ala.App. 197, 205 So.2d 247 (1967). The case law further shows that all felonies do not per se involve moral turpitude. Owens v. State, 291 Ala. 107, 278 So.2d 693 (1973); Kennedy v. State, 371 So.2d 464 (Ala.Cr. App.1979).

Among those crimes that rise to such a level as to permanently cast doubt on the truthfulness and veracity of those who commit them are: 1) murder, Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956); 2) rape, Matthews v. State, 51 Ala.App. 417, 286 So.2d 91 (1973); 3) burglary, Matthews, supra, 4) robbery, Matthews, supra; 5) larceny, Matthews, supra; and 6) income tax evasion, Meriwether v. Crown Invest ment Corp., 289 Ala. 504, 268 So.2d 780 (1972).

Among those crimes not involving moral turpitude are: 1) assault and battery, Gillman v. State, 165 Ala. 135, 51 So. 722 (1910); 2) bootlegging, Wiggins v. State, 27 Ala.App. 451, 173 So. 890 (1937); 3) distilling or otherwise violating prohibition laws, Lakey v. State, 206 Ala. 180, 89 So. 605 (1921); 4) doing business without a license, Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927); 5) trespass to land, United States Lumber & Cotton Co. v. Cole, 202 Ala. 688, 81 So. 664 (1919); 6) vagrancy, Bryan v. State, 18 Ala.App. 199, 89 So. 894 (1921); 7) using abusive and obscene language, Craven, supra; and 8) public drunkenness, Grammer v. State, 239 Ala. 633, 196 So. 268 (1927). In addition, drug-related offenses under prior criminal statutes have been held not to involve moral turpitude. Pippin v. State, 197 Ala. 613, 73 So. 340 (selling cocaine (when such sale was a misdemeanor)); Peters v. State, 240 Ala. 531, 200 So. 404 (1941) (violation of Harmon Narcotic Act).

In light of the foregoing cases, we cannot hold that the mere possession of marijuana is a crime involving moral turpitude, even though it is classified as a felony. In so holding, we draw a distinction between possession for personal use and possession for resale to others. We cannot see how felony possession for personal use differs from misdemeanor possession for personal use as an indicium of a witness’s future trustworthiness. The legislative choice to punish subsequent personal pos-sessory offenses, crimes mala prohibita in nature, more severely than the initial pos-sessory offense, does not, by itself, change the character of the offense as it relates to moral turpitude. Possession for resale, however, takes on an entirely different character, one which does involve moral turpitude. Gholston v. State, supra.

Trafficking in and encouraging others to utilize a controlled substance, such as marijuana, indicates far greater untrustworthiness and depravity of character than personal consumption of a controlled substance. One could logically assume that, because of the illegal nature of trafficking itself, a person would likely lie and operate covertly in order to engage in such selling. On the other hand, personal consumption is likely achieved without such conduct.

Because of our holding that felony possession is not a crime involving moral turpitude, it follows that the judgment of the Court of Criminal Appeals should be reversed and the cause remanded to that court for a judgment of reversal and remand for a new trial in accordance with this opinion.

REVERSED AND REMANDED.

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

MADDOX, J., dissents.

FAULKNER, J., not sitting.

      . For a detailed factual summary of these proceedings, as well as Appellant’s other allegations of error below, not here relevant, see McIntosh v. State, 443 So.2d 1275 (Ala.Cr.App.1983).

      . Felony possession of marijuana is punishable by a minimum of two years’ imprisonment for amounts not exceeding 2.2 pounds (Code 1975, § 20-2-70(a)), and a minimum of three years’ imprisonment plus a $25,000 fine for amounts over 2.2 pounds (Code 1975, Supp.1982, § 20-2-80).

        Misdemeanor possession of marijuana exists only for marijuana held for "personal use,” and is a one-time exception (Code, § 20-20-70(a)); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala.1977).


text:
    Ricky Glenn McINTOSH v. STATE.
    4 Div. 11.
    Alabama Court of Criminal Appeals.
    Jan. 10, 1984.
   AFTER REMANDMENT

PER CURIAM.

Reversed and remanded on authority of the Supreme Court of Alabama, Ex parte McIntosh, 443 So.2d 1283 (Ala.1983).

REVERSED AND REMANDED.

All the Judges concur.


author: SAM W. TAYLOR, Judge.

text:
    Lamar CLARK v. STATE.
    3 Div. 777.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-32.
    Ira DeMent and Ronald W. Wise, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

The appellant was indicted and convicted of murder in violation of Alabama Code § 13A-6-2 (1975). Sentence was 99 years’ imprisonment. He appeals.

The single issue raised by this appeal has to do with the denial of the appellant’s challenge for cause of a juror. The following facts are set out.

The examination proceeded as follows:
“MR. HARTLEY: ... One of the defenses that Mr. Clark will be making to this charge against him is ‘Not guilty by reason of insanity.’ Now, I’m sure that all of you are aware that this defense has come under fire, has been questioned and been a lot of attention on the newspapers and TV, particularly since the attempted assassination of the President by Mr. Hinkley. Because of that I want to know if there are any of you who have considered this question of insanity as a defense and because of your thoughts about it and your consideration of that defense, have formed an opinion whereby you disapprove insanity as a defense. I want you to think about that for a minute.
“MR. TINDAL: I have already thought about it.
“MR. HARTLEY: You have already thought about it, Mr. Tindal?
“MR. TINDAL: I’m very much concerned over it.
“MR. HARTLEY: All right, sir. Then does your concern lead you to believe that it should not be allowed as a defense of a criminal act?
“MR. TINDAL: Yes, sir.
“MR. HARTLEY: All right, sir. Then if that defense were interposed in this case and you believed the Defendant to be insane, would you still vote for a conviction?
“MR. TINDAL: I would.
“MR. HARTLEY: Cause, Judge.
“THE COURT: Mr. Tindal, if the Court charged you that a person who is suffering from a mental disease at the time of the commission of the crime or at the time of the commission of the act, and that mental disease is a complete defense to the act and the evidence showed that he was suffering from a mental disease at that time, would you still not give him the benefit of that defense?
“MR. TINDAL: Judge, if he had had previous records of mental defect, I would give him a chance to come out with it.
“THE COURT: All right, sir.
“MR. TINDAL: But if it’s several times he has had mental problems, I would say that he was insane.
THE COURT: And give him the benefit of that defense?
“MR. TINDAL: I would.
“THE COURT: The challenge is denied. I think he recognized the defense of insanity.
“MR. HARTLEY: All right, sir.”

It is the business of the trial court to insure that an unbiased jury hears a ease. Howell v. City of Birmingham, 383 So.2d 567 (Ala.Cr.App.) cert. denied, 383 So.2d 570 (Ala.), cert. denied, 449 U.S. 937, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980); Motes v. State, 356 So.2d 712 (Ala.Cr.App.) cert. denied, 356 So.2d 720 (Ala.1978). The court is not limited by the grounds for challenge as set out in Alabama Code § 12-16-150 (1975). Any ground which was valid at common law is deemed still valid in Alabama unless it is inconsistent with the grounds enumerated in § 12-16-150. Nobis v. State, 401 So.2d 191 (Ala.Cr.App.) cert. denied, 401 So.2d 204 (Ala.1981). The legal question presented by this case is whether or not the prospective juror had “a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.” Proof that the juror has a biased or fixed opinion is insufficient. There must be proof that the opinion was “so fixed that it would bias the verdict of the juror.”

In Nobis v. State, supra, which provides an excellent discussion of this subject, the case for challenge made out by the defendant was much stronger than that presented here. Eleven prospective jurors said they believed that a psychologist could not, through interviewing and testing, determine the sanity of a person as of some four months beforehand. Twelve jurors answered that they believed that insanity pleas were just gimmicks used by defense lawyers. The court in Nobis found that these responses did not reflect such a prejudice or preconceived notion as to warrant disqualification. The court defined a fixed opinion as to guilt or innocence as “one that is a conviction or prejudgment, a strong or deep impression which closes the mind of the juror and combats the testimony and resists its force.” (citations omitted).

Judge Harris quotes with favor the rule as set forth by Chief Justice Marshall in Burr’s trial:

“That light impressions which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony constitute no sufficient objection to a juror; but those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony, and resist its force, do constitute a sufficient objection to him.”

We recognize that jurors do not exist in a vacuum; they know what is going on around them; they often know what a case is about by the time they enter a courtroom, if only through rumor; they are aware of highly publicized cases and acts of the legislature.

The insanity verdict in the Hinckley case prompted not only public outcry but prompted action by the Alabama Legislature changing the insanity defense. That, like the answers of the prospective jurors quoted, reflected the temper of the times.

The testimony, however, makes it evident that the juror did not have a “fixed opinion”. A juror who brings his thoughts out into the open in response to voir dire questions may be the one who later “bends over backwards” to be fair. The judge was in position to hear not only the words recorded by the court reporter but also the meaning actually conveyed by the responding prospective juror. A trial court’s ruling on challenges for cause based on bias is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Nobis, supra; Price v. State, 383 So.2d 884 (Ala.Cr.App.) cert. denied, 383 So.2d 888 (Ala.1980); Motes v. State, supra; Barbee v. State, 395 So.2d 1128 (Ala.Cr.App.1981).

We find that the trial court did not err in refusing to disqualify the juror on a challenge for cause. This case is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ted Allen McGINNIS, Jr. v. STATE.
    6 Div. 891.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-94.
    See also 382 So.2d 605.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   SAM W. TAYLOR, Judge.

This appeal is from the retrial of Ted Allen McGinnis, Jr., for the capital murder of Florence Kahler, who was stabbed to death during the burglary of her home. The original trial, the appeal from which is reported as McGinnis v. State, 382 So.2d 605 (Ala.Cr.App.1979), cert. denied, 382 So.2d 609 (Ala.1980), resulted in a conviction for the capital felony as charged, and a sentence of life imprisonment without parole. This original conviction was reversed on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2383, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981), and Ritter v. State, 403 So.2d 154 (Ala.1981), and a new trial was ordered. McGinnis v. State, 403 So.2d 1 (Ala.Cr.App.1981).

As a result of this second trial the appellant was again convicted of the capital felony “as charged” and sentenced to life imprisonment without parole.

It is from this second conviction and sentence that the appellant prosecutes this appeal. Facts pertinent to the issues raised on this appeal are contained either in the reported appeal from the first trial (see, McGinnis v. State, 382 So.2d 605, supra), or within the respective discussions of the specific issues below.

I

Appellant’s constitutional challenge of the Alabama Supreme Court’s holding in Beck v. State, 396 So.2d 645 (Ala.1981), is, essentially, the same argument that has been ruled meritless on numerous occasions. Beech v. State, 439 So.2d 1331 (Ala.Cr.App.1983); see, Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982), and cases therein cited.

II

After an appropriate hearing, the trial court ruled that state’s witness Charles Terry Holloway, appellant’s accomplice, was “unavailable” for this retrial and, therefore, permitted the state to introduce Holloway’s testimony from appellant’s original trial. The appellant contends that the trial court’s rulings on this matter were reversible error because they were not supported by the state’s evidence as to the missing witness’s availability.

In Napier v. State, 377 So.2d 1135 (Ala.Cr.App.), cert. denied, 377 So.2d 1138 (Ala.1979), we stated:

“A sufficient predicate for a determination of unavailability is laid when the party offering the evidence shows that it exercised due diligence in seeking the presence of the witness at the trial to no avail. [Citations omitted].
“The sufficiency of the proof of the predicate of unavailability of an absent witness is addressed to the sound discretion of the trial judge.”

In support of his argument that the trial court abused its discretion, the appellant cites Bardin v. State, 148 Ala. 74, 38 So. 833 (1905). The unavailability predicate, that the sheriff and his deputy could not find the witness in his county of residence, was found to be insufficient in Bardin because it indicated merely a “temporary” disappearance of the missing witness. Such is not the case before us.

Dave Barber, one of the prosecutors at the trial below, and Grover Sims, an investigator with the Jefferson County District Attorney’s Office, testified as to the prosecution’s efforts to locate Holloway for trial. Holloway’s mother had given them Holloway’s last known address and his place of employment. They made several attempts to serve Holloway at the addresses given them, the last attempt being made on the Thursday before trial, April 8, 1982. Several of his former co-employees at his last place of employment told them that Holloway had been gone for several months, and no one knew exactly where he had gone. His mother and his stepfather could give no additional information as to Holloway’s whereabouts.

Holloway’s parole officer at the time of his disappearance, Billy J. Cox, testified that he last saw and talked with Holloway on January 5, 1982. He verified the same addresses that the District Attorney’s Office had noted as Holloway’s last place of residence and employment. Cox’s own investigation revealed that Holloway quit his job and had moved out of his residence on January 19, 1982. Holloway’s mother had notified Cox on January 21, 1982, that she was worried that he might violate his parole because he had been accused of taking a television set. She was upset because Holloway had disappeared and she did not know where he was.

Because Cox was unable to locate him, Holloway was placed on “delinquent status” by the Board of Pardons and Paroles on February 16, 1982, and a warrant was issued for his arrest.

These facts, unlike those in Bardin, supra, are more than sufficient to justify the trial court’s conclusion that Holloway was “unavailable” for trial. They indicate more than a mere “temporary” disappearance, and demonstrate “due diligence” on the part of the prosecution to locate Holloway, even though, as can always be argued, other steps might also have been taken.

A review of the evidence from the “unavailability” hearing in the instant case demonstrates that the trial court did not abuse its discretion in admitting Holloway’s prior testimony. See, Napier v. State, supra, and eases therein cited; Alexander v. State, 418 So.2d 973 (Ala.Cr.App.1982).

III

Appellant contends that inculpatory statements which he made to the authorities and which were later introduced at trial, were not voluntarily and intelligently made. His theory is that he had not been told before making the statements that he was going to be charged with a capital felony. This argument is without merit. Jemison v. State, 49 Ala.App. 389, 270 So.2d 836 (1972); Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981); Hale v. State, 420 So.2d 821 (Ala.Cr.App.1982).

The appellant admits that he had been told that he was suspected of killing Mrs. Kahler and that charges of murder and burglary might be involved. He also admits that, except for the failure to inform him of a possible capital felony charge, his statements were otherwise voluntarily and intelligently made.

Appellant’s statements were properly admitted into evidence by the trial court.

IV

Two hours after retiring to consider its verdict, the jury sent a message to the court inquiring about the possibility of returning “a verdict of guilty of murder one and burglary one with a sentence of life with parole.” The court brought the jury back and instructed them that “[pjarole or probation is not the concern of the jury.” He then explained that, under the circumstances of the case, if the jury found the appellant guilty of the capital offense, the court would set the sentence and the sentence would be “life imprisonment without parole.” He also reiterated his earlier instructions regarding the lesser included offenses of first-degree murder and first-degree burglary and the possible punishments for each.

The appellant argues on appeal that these supplemental instructions erroneously injected sentencing information into the guilt phase of the trial and, thereby, prejudiced the jury against him. The appellant contends that these instructions constituted reversible error because they encouraged the jury to return a verdict of guilty of the capital offense.

Appellant’s objections to the trial court’s supplemental instructions were not timely. Before the trial began the appellant agreed to have the court instruct the jury that the death penalty would not be appropriate in the instant case. Without objection the court instructed the jury venire, and later the empanelled jury, that the death penalty was not a possible punishment in the case before them. This was repeated in summation.

The appellant first objected to the court’s supplemental instructions regarding punishment in his motion for a new trial. These objections in his motion for a new trial came too late to preserve the issue for our review. See, Hewitt v. State, 389 So.2d 157 (Ala.Cr.App.1980); Harris v. State, 412 So.2d 1278 (Ala.Cr.App.1982);. Coleman v. State, 420 So.2d 833 (Ala.Cr.App.1982).

Where punishment instructions have been given during the guilt phase of a capital felony trial, they have been found to constitute harmless error, if indeed they constitute error at all. See, Brazell v. State, 423 So.2d 323 (Ala.Cr.App.1982), and cases therein cited; see also, Crowe v. State, 435 So.2d 1371 (Ala.Cr.App.1983).

The jury had clear instructions on the lesser included offenses of first-degree murder and first-degree burglary, and, presumably, would have returned a verdict of guilty of one of these lesser offenses had the evidence so dictated.

For the foregoing reasons appellant’s conviction and sentence are due to be, and are hereby, affirmed.

AFFIRMED. „

All the Judges concur.

      . The court and both counsel agreed, before the jury was struck, that Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), mandated that death could not be a possible punishment in the instant case. In Bullington, the United States Supreme Court held that in a state with a bifurcated capital felony trial scheme, the Double Jeopardy Clause of the Fifth Amendment barred reconsideration of the death penalty in a retrial where the defendant was originally convicted of a capital felony but not sentenced to death. In the instant case, appellant’s first trial resulted in a capital felony conviction but the trial court set sentence at life imprisonment without parole because the mitigating circumstances outweighed the aggravating circumstances. See, McGinnis v. State, 382 So.2d 605, supra.