text:
    Larry Gene HEATH v. STATE.
    4 Div. 134.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.

      Larry W. Roney, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little and Ed Carnes, Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

In August of 1981, Rebecca McQuire Heath was nine months pregnant. In that same month, she was kidnapped from her home in Russell County, Alabama, and executed by a single gunshot wound to her head. Her body was discovered in Troup County, Georgia. Her executioners had been hired by her husband, the defendant, for the sum of $2000.

The defendant was indicted for murder during a kidnapping in the first degree in violation of Section 13A-5-40(a)(l), Code of Alabama 1975. At the guilt-finding phase of his trial, a jury found the defendant guilty as charged in the indictment. At the sentence-determining phase, the jury fixed the defendant’s punishment at death. The trial judge then held the hearing mandated by Section 13A-5-47, found that the aggravating circumstance outweighed the mitigating circumstance and sentenced the defendant to death. The written findings of the trial court are attached to this opinion as Exhibit A. The trial and sentencing proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1981), and Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). One issue is presented on appeal.

I

The defendant’s sole contention on appeal is that his pleas of autrefois convict and former jeopardy were due to be granted. The defendant pled guilty to his wife’s murder before the Superior Court of Troup County, Georgia, in February of 1982. He was sentenced to life imprisonment. The defendant argues that this prior Georgia conviction should have barred his subsequent trial and conviction in Alabama for the same criminal conduct.

The double jeopardy clauses of both the Fifth Amendment to the Constitution of the United States and Section 9, Art. I, of the Alabama Constitution, provide that no person shall “for the same offense” be twice put in jeopardy of life or limb. Consequently,

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law.” Racine v. State, 291 Ala. 684, 687 286 So.2d 896 (1973).

The doctrine of dual sovereignty provides that, “in the absence of a statute, the rule against double jeopardy applies only to offenses against the same sovereignty.” 22 C.J.S. Criminal Law, Section 296 (1961). Barnett v. State, 373 So.2d 1226 (Ala.Cr.App.1979), cert. denied, 373 So.2d 1230 (Ala.1980). The United States Supreme Court has recognized this doctrine in holding that a single act may constitute an offense against both state and federal governments and that the offender may be prosecuted by both governments. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Also recognizing the principle that a person convicted in a state court may subsequently be prosecuted for the same act in federal court are United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), rehearing denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970); United States v. NG, 699 F.2d 63 (2nd Cir.1983); Pope v. Thone, 671 F.2d 298 (8th Cir.1982), cert. denied, 457 U.S. 1140, 102 S.Ct. 2974, 73 L.Ed.2d 1360 (1982); Brown v. United States, 551 F.2d 619 (5th Cir.1977).

We have been cited to no federal case involving jeopardy and multiple state prosecutions. However, the courts of various states have recognized that a single act may constitute offenses against two different states and therefore prosecution in both states is constitutionally permissible under the principle of dual sovereignty. People v. Walker, 123 CaLApp. 3d 981, 177 Cal.Rptr. 147 (1981); State v. Booth, 418 So.2d 385 (Fla.App.1982); State v. Brown, 2 Ohio App.3d 321, 441 N.E.2d 1126 (1981); State v. Straw, 626 S.W.2d 286 (Tenn.Cr.App.1981); State v. Glover, 500 S.W.2d 271 (Mo.App.1973).

In Hare v. State, 387 So.2d 299, 300 (Ala.Cr.App.1980), this Court held that such dual prosecutions are permitted.

“ ‘A conviction in one state for an act in violation of its laws is not a bar to a prosecution in another for the same act, if it violates the laws of the latter state, unless it is otherwise provided by statute, or unless by compact between the states it has been agreed that the jurisdiction shall vest exclusively in the state first apprehending and arresting accused.’ 22 C.J.S. Criminal Law, Section 296(c) (1961).”

In the absence of any statutory exception to the dual sovereignty doctrine, see Barnett, supra, we adhere to the principle stated in Hare, supra, and find no error in the denial of the defendant’s pleas of former jeopardy.

II

We have fulfilled our statutory duty and searched the record for error affecting any substantial right of the defendant but have found none. Alabama Code Section 12-22-241 (1975); A.R.A.P. 45A.

We now review the propriety of the death sentence as required by Section 13A-5-53, Code of Alabama 1975. We have reviewed the sentencing proceedings and find therein no error adversely affecting the rights of the defendant. The trial court’s finding of the aggravating and mitigating circumstances is supported by the evidence. The only aggravating circumstance relied on (the capital offense was committed while the defendant was an accomplice in the commission of a kidnapping, Section 13A-5-49(4)) was established by the verdict of conviction itself. This was proper under Section 13A-5-50, Code of Alabama 1975.

Explicitly addressing each of the three questions specified in Section 13A-5-53(b), we find that death is the proper sentence in this case.

(1) Under Section 13A-5-53(b)(l), there is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The trial court instructed the jury in its oral charge in the sentencing hearing not to let any sympathy, bias, passion, or prejudice affect their deliberations or sentence verdict. In the absence of any evidence to the contrary, we must assume that the jurors followed these instructions. Marshall v. Lonberger, 459 U.S. 422, 438, n. 6, 103 S.Ct. 843, 853, n. 6, 74 L.Ed.2d 646 (U.S.1983); Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979).

(2) Our independent weighing of the aggravating and mitigating circumstances required by Section 13A-5-53(b)(2) indicates that death is the proper sentence. The record discloses the chronicle of a murder deliberately planned and engineered. The defendant overcame every obstacle in his path to insure the consummation of his wicked scheme. In consideration of the evidence presented, we do not see how the jury could have returned any verdict but that of guilty with a punishment of death.

In consideration of the third factor in determining whether the death sentence was proper, Section 13A-5-53(b)(3), we find that the sentence of death is neither excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See Williamson v. State, 370 So.2d 1054 (Ala.Cr.App.1978), affirmed, 370 So.2d 1066 (Ala.1979), vacated and remanded on other grounds, 448 U.S. 903, 100 S.Ct. 3042, 65 L.Ed.2d 1132 (1980).

In reviewing this factor, we have considered the punishments and convictions of the defendant’s accomplices in the State of Georgia. Each accomplice was indicted for murder during kidnapping first degree. The defendant’s girlfriend, Denise Paige Lambert, pled guilty to conspiracy to commit murder and was sentenced to ten years’ imprisonment. Sanders Williams, who was hired to commit the murder but disappeared after several attempts “fell through”, also pled guilty to conspiracy to commit murder and received a ten-year sentence.

Jerry Heath, the defendant’s brother, who allegedly furnished the defendant with the name of someone who would commit the murder, was tried and acquitted. The two hired assassins, Charles Edward Owens and Gregory Hughes Lumpkin, were convicted of murder and received life sentences.

Our review of the entire record convinces us that the judgment of the circuit court is due to be and it is hereby affirmed.

AFFIRMED.

All Judges concur.

DETERMINATION OF SENTENCE BY THE COURT

The defendant herein, with assistance of counsel at all proceedings, was found guilty as charged in the indictment. Thereafter a sentence hearing with participation by the same jury as at trial was held. Pursuant to Section 13A-5-47, Code of Alabama 1975, the Court makes the following findings of fact summarizing the crime herein and the defendant’s participation in the crime:

FINDINGS OF FACT

GUILT PHASE

In early August, 1982 defendant contacted his brother, Jerry Heath, and Jerry Heath set up a meeting at which he, defendant, and Ricky Heath, another brother of defendant, discussed defendant’s intentions to kill his wife, Rebecca Heath. Defendant gave Ricky Heath $40.00 for his expenses toward accomplishing that result; however, nothing developed from this meeting.

Defendant thereupon contacted Jerry Heath a second time. Jerry Heath told defendant he knew somebody else that might commit the murder. Subsequently Jerry Heath told defendant to meet a person at an apartment in Columbus, Georgia. This person was Charles Edward Owens. Sometime later Owens and two other men, Gregory Hughes Lumpkin and Sanders Williams, went to defendant’s place of employment. There defendant discussed with Williams the details of his plans. Defendant wanted the homicide to appear to be an accident. Defendant paid Williams $100.00 as a down payment. Later that day defendant went to Owens’ apartment and gave a pistol to Williams. Defendant planned for Williams to force his way into Rebecca Heath’s car while she took defendant to work. Williams was then to kill Rebecca Heath and make her death appear to be accidental. The next day defendant gave Owens another $300.00, so that they could obtain an automobile to carry out the plan.

Nothing materialized from this plan, and several days later Owens told defendant Williams had left and his whereabouts were unknown. Owens stated to defendant that he and his partner, Gregory Hughes Lumpkin, would do the job for defendant. Approximately two days later, on August 31, 1981, at about 2:00 A.M., Owens called defendant at defendant’s home and said that he and Lumpkin were prepared for the job. At 6:00 A.M. defendant locked and left his house. Before leaving he put a brick in his car which was also used by his wife. The brick was to be placed on the accelerator in carrying out the appearances of an accident. He also left a piece of wiring in the car to tie down the steering wheel.

Defendant went to Owens’ apartment and explained how he wanted the act done. Defendant then went to the apartment of his girlfriend, Denise Lambert, and waited for a call from Owens. After receiving the call, defendant went to a service station in Columbus, Georgia, and turned over his automobile, a 1978 green Oldsmobile, to Lumpkin. Owens was also present, driving a white Mustang.

Defendant and Denise Lambert, driving Lambert’s truck, led Owens and Lumpkin to Russell County, Alabama. On the road leading to his house, defendant stopped and pointed out the house to Lumpkin. Defendant then left as Owens pulled up beside Lumpkin. Defendant had left his house keys on the key ring with his car keys, so that Lumpkin had the keys to the house. The evidence indicates that Rebecca Heath was in her home when defendant pointed out his house to Owens and Lump-kin. At 9:10 A.M. that same morning defendant’s car was seen a short distance off the road known as Smokey Road in Troup County, Georgia. A light-colored Mustang was seen sideways in the road one hundred yards from defendant’s automobile. It then went down the road at a high rate of speed.

The body of Rebecca Heath was found at approximately 11:00 A.M. She was dead, having suffered a fatal gunshot wound through the right eye and into the brain. She was nine months pregnant.

In August, 1981 defendant borrowed $2,500.00 from Southern Discount Company. Rebecca Heath was a cosigner of this loan. $500.00 of this loan was used by defendant to build concrete pads for his dog pen. Thereafter defendant formed the intention to use the balance of $2,000.00 to pay for the murder of his wife. This sum of money was used for that purpose.

Rebecca Heath was forcibly abducted from her home in Russell County, Alabama, for the purpose of inflicting sufficient physical injury to her to cause her death. There is no evidence to suggest that at any time she was armed with any weapon. There is no evidence to indicate that the killing of Rebecca Heath was a justifiable or excusable homicide.

Defendant states that he formed the intention and plan to murder his wife because he was under the influence of extreme mental and emotional disturbance based upon his belief that his wife was engaged in an extramarital affair with another man and was pregnant by that man.

The Court finds that defendant initiated, procured, aided and abetted, and planned the abduction of Rebecca Heath so that she could be murdered. Defendant intentionally hired others with whom he was acting in complicity to intentionally abduct Rebecca Heath and to intentionally murder the said Rebecca Heath.

FINDINGS FROM SENTENCING PHASE

After the trial a sentence hearing was conducted with participation by the jury. The state rested upon the evidence brought forth at trial. The defendant presented evidence by witnesses called to testify. Arguments were made to the jury by both sides. The jury deliberated after being charged by the Court and unanimously returned a recommendation that defendant’s punishment be death.

The Court ordered the probation officer for this circuit to prepare a written presen-tence investigation report. This report was duly prepared and filed. Copies of the same were furnished to counsel for both parties. A hearing was held for the parties to respond to the report and to present evidence about any part of the report which would be the subject of a factual dispute. At this hearing the state presented no further evidence. The defendant testified and gave evidence disputing certain matters in the presentenee investigation report. The defendant also stated that he did have remorse for the killing of his wife, Rebecca Heath.

The Court finds from the evidence presented in this case that the defendant was guilty and is guilty of the murder of Rebecca Heath during a kidnapping in the first degree of the said Rebecca Heath.

The Court finds the following aggravating circumstance to exist in this ease: The capital offense was committed while the defendant was engaged in the commission of a kidnapping.

The Court finds that the following aggravating circumstances do not exist in this case:

A. The capital offense was committed by a person under sentence of imprisonment.

B. The defendant was previously convicted of another capital felony or a felony involving the use of threat of violence to the person.

C. The defendant knowingly created a great risk of death to many persons.

D. The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

E. The capital offense was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, or burglary.

F. The capital offense was committed for pecuniary gain.

G. The capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

H. The capital offense was especially heinous, atrocious, or cruel compared to other capital offenses.

Upon consideration of all of the evidence brought forth at the trial in this case, the sentence hearings, and the presentence investigation report, the Court finds that the following mitigating circumstances exists in this case: Defendant was convicted of the murder of Rebecca Heath in the Superi- or Court of Troup County, Georgia, on February 10, 1982, and received a sentence of life imprisonment in that court.

The Court finds that the following mitigating circumstances do not exist in this case:

A. The defendant has no significant history of prior criminal activity. The Court finds that the defendant does have a significant history of prior criminal activity in that before the sentence hearing in this case he was convicted of three felony offenses, those being buying, receiving or concealing stolen property, forgery, and a criminal attempt of theft by extortion.

B. The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

C. The victim was a participant in the defendant’s conduct or consented to it.

D. The defendant was an accomplice in the capital offense committed by another person and his participation was relatively minor.

E. The defendant acted under extreme duress or under the substantial domination of another person.

F. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.

G. The age of the defendant at the time of the crime.

H. Any other mitigating circumstances offered pursuant to Section 13A-5-52, Code of Alabama 1975.

Upon considering and weighing the aggravating circumstance with the mitigating circumstances in this case, the Court is of the opinion that the aggravating circumstance outweighs any mitigating circumstances. It is, therefore,

ORDERED AND ADJUDGED BY THE COURT that the defendant be sentenced to death by electrocution as specified in the laws of this state and as set forth in an order of sentence by this Court.

DONE this the 10th day of February, 1983.

Wayne T. Johnson Circuit Judge

ORDER OF SENTENCING

This case is now before the Court for sentencing. The State is represented by its district attorney and the defendant is present in open court with his counsel, Larry W. Roney, Esq., and R. Michael Raiford, Esq. The Court has previously conducted a sentence hearing with participation by the jury and a hearing for the parties to present evidence regarding matters in the contents of the presentence report and for arguments to be made regarding the proper sentence in this case. The defendant, Larry Gene Heath, being asked by the Court if he has anything to say as to why the sentence of the Court should not be pronounced or before sentence is pronounced says proceedings violate the 5th Amendment and laws of this state.

Upon jury verdict of guilty of murder during kidnapping in the first degree, the Court adjudges the defendant guilty of murder during kidnapping in the first degree, that is, that Larry Gene Heath did intentionally cause the death of Rebecca Heath by shooting her with a pistol, and Larry Gene Heath caused said death during Larry Gene Heath's abduction of, or attempt to abduct, Rebecca Heath, with the intent to inflict physical injury upon her, in violation of Section 13A-5-40(a)(l) of the Code of Alabama 1975, as amended. Upon consideration of the evidence in this case, the matters brought forth in the sentence hearing, and upon consideration of the aggravating and mitigating circumstances in this case, the Court finds that the aggravating circumstance outweighs any mitigating circumstances.

It is, therefore,

ORDERED BY THE COURT that the punishment in this case is fixed at death.

IT IS ORDERED BY THE COURT that the defendant, Larry Gene Heath, be sentenced to death by electrocution on the 17th day of March, 1983.

The Sheriff of Russell County, Alabama, shall deliver the said Larry Gene Heath to the custody of the Warden of the William C. Holman unit of the state prison system at Atmore, Alabama, together with a warrant from the clerk of this court as set forth hereafter.

The executioner designated by the laws of this state, at the proper place specified by law for the execution of one sentenced to death, shall cause a current of electricity of sufficient intensity to cause death to pass through the body of the defendant, with such current of electricity to be applied and to continue until the defendant, Larry Gene Heath, is dead.

The clerk of this court is ordered to issue a warrant under the Seal of this Court directed to the warden of William C. Holman unit of the state prison system at Atmore, Alabama, for the execution of the sentence of death, which warrant shall recite the fact of conviction and shall set forth specifically the offense, the judgment of the Court, and the time fixed for defendant’s execution. Said warrant shall command the warden to proceed at the time and place named in the sentence to carry the same into execution as provided in Section 15-18-82, Code of Alabama 1975. The clerk shall deliver said warrant to the Sheriff of Russell County, Alabama, who shall deliver the same, together with the defendant, Larry Gene Heath, to said warden.

Pursuant to Section 13A-5-55, the judgment of conviction is subject to automatic review. Notice of appeal is entered and the sentence herein is suspended, pending appeal.

DONE this the 10th day of February, 1983.

s/Wayne T. Johnson Circuit Judge


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Larry Gene HEATH. (Re Larry Gene Heath v. State of Alabama).
    82-1060.
    The Supreme Court of Alabama.
    July 6, 1984.
    Larry W. Roney, Phenix City, for petitioner.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

The petitioner was convicted of murder during a kidnapping in violation of § 13A-5 - 40(a)(1), Code of Alabama, and was sentenced to die. The Court of Criminal Appeals reviewed the petitioner’s conviction and, after independently determining that the death penalty was appropriate, affirmed his conviction and sentence. Heath v. State, 455 So.2d 898 (Ala.Crim.App.1983). We granted certiorari pursuant to A.R.A.P. 39(c).

The facts are set out in detail in exhibit A to the opinion of the Court of Criminal Appeals. In short, Heath hired two men to abduct and murder his wife. After she was kidnapped and shot, her abductors abandoned her body in Georgia. Heath pleaded guilty to murder charges brought in Georgia and was sentenced to life in prison.

In his appeal to the Court of Criminal Appeals and in his petition to this Court, Heath raised only one issue, whether Alabama was prohibited by the double jeopardy provisions of the United States and the Alabama Constitutions from prosecuting Heath for his wife’s murder after his murder conviction in Georgia arising out of the same incident. United States Constitution, Amendment V.; Alabama Constitution Art. 1, § 9.

We agree with the Court of Criminal Appeals that the Double Jeopardy Clause of the Fifth Amendment and the double jeopardy clause of the Alabama Constitution each applies only to offenses against the same sovereign and, therefore, that the subsequent prosecution in Alabama was not barred. Prosecutions under the laws of separate sovereigns do not improperly subject an accused twice to prosecutions for the same offense. United States v. Wheeler, 435 U.S. 313, 317, 98 S.Ct. 1079, 1082, 55 L.Ed.2d 303 (1978). Thus, a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts on which the federal prosecution was based; nor does a prior state prosecution bar a federal one. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). As the Supreme Court stated in United States v. Wheeler, 435 U.S. at 320, 98 S.Ct. at 1084:

“Bartkus and Abbate rest on the basic structure of our federal system, in which States and the National Government are separate political communities. State and Federal Governments ‘[derive] power from different sources,’ each from the organic law that established it. United States v. Lanza, 260 U.S. 377, 382 [43 S.Ct. 141, 142, 67 L.Ed. 314], Each has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each ‘is exercising its own sovereignty, not that of the other.’ Ibid. And while the States, as well as the Federal Government, are subject to the overriding requirements of the Federal Constitution, and the Supremacy Clause gives Congress within its sphere the power to enact laws superseding conflicting laws of the States, this degree of federal control over the exercise of state governmental power does not detract from the fact that it is a State’s own sovereignty which is the origin of its power.”

The Supreme Court has never considered the question of the applicability, vel non, of the “dual sovereignty” doctrine to consecutive prosecutions by two states. It is clear that the “dual sovereignty” concept does not apply in every instance where successive cases are brought by separate entities. For instance, a state and a municipal subdivision of the same state cannot bring successive prosecutions for offenses arising out of the same conduct. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). The states of Alabama and Georgia are clearly separate political sovereignties, however. If, for double jeopardy purposes, Alabama is considered to be a sovereign entity vis-a-vis the federal government then surely it is a sovereign entity vis-a-vis the state of Georgia.

Alabama may choose not to prosecute individuals in situations like the one at bar where the defendant has been convicted of a serious offense and has received a substantial sentence in another state for an offense arising out of an act punishable under Alabama law. Such an exercise of prosecutorial restraint is not constitutionally mandated, however, and we decline to impose such a policy judicially under the guise of a constitutional pronouncement. See Booth v. State, 436 So.2d 36 (Fla.1983). Such a rule would have the undesirable effect of depriving Alabama of the right to enforce its own laws in instances where another state has prosecuted an individual for an offense arising out of the transaction in question, even where the prosecution in another state is for a relatively minor offense.

After reviewing the record and considering the petition, the arguments of the parties, and the opinion of the Court of Criminal Appeals, we are of the opinion that the judgment of the court below affirming the conviction and death sentence is due to be affirmed.

AFFIRMED.

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


author: BOWEN, Presiding Judge.

text:
    Joseph TURNER v. STATE.
    6 Div. 5.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Hugh C. Henderson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the murder of his neighbor, Oliver Anderson, Jr., in violation of Section 13A-6-2, Code of Alabama 1975. Sentence was life imprisonment. The sole issue raised on appeal is whether the defendant’s motion for new trial was due to be granted on the ground that the evidence of insanity was overwhelming.

Mrs. Wilma Anderson, wife of the victim, testified that when she came home from work on June 3, 1980, her husband went out into the backyard. She heard two shots, ran out the back door, and found her husband lying dead in the garden.

Mr. Eugene Edwards, who lived in the same neighborhood as the victim and the defendant, stated that he was out in the yard playing dominoes when he saw the defendant walk outside with a pistol in his hand. The defendant shot twice into the ground and said, “I will shoot anybody. I . have got a right to do what I am doing.” He then walked over to the victim, fired twice, re-holstered his pistol and went back inside.

On cross examination, Edwards testified that he had known the defendant since he moved into the neighborhood and he had never noticed any “strange behavior” on the defendant’s part, or seen the defendant “bother” anyone.

Mr. Johnny Ruffin was watching the domino game when he heard a shot and turned to look. He saw the defendant fire two shots at the victim and then start mumbling to himself. On cross examination he said that the men in the domino game had been talking about the fact that defendant claimed to be “with the FBI or something.”

Officer Ross Spurlock of the Birmingham Police Department arrived on the scene shortly after the shooting and ordered the defendant to “freeze”, whereupon the defendant dropped his gun, made no attempt to escape, and surrendered to the police. Spurlock said that the defendant appeared to know where and who he was and appeared to recognize the officer as a policeman.

Birmingham Police Sergeant James E. Gay interviewed the defendant after his arrest and took a statement from him at the police station. Gay testified that the defendant appeared to comprehend the questions he was asked, claimed to understand his constitutional rights, and seemed to know the difference between telling the truth and telling a lie, insisting that he was going to tell the truth. According to the officer, the defendant understood where and who he was, knew that Sergeant Gay was a police officer, and answered his questions in a forthright manner.

On cross examination, Gay conceded that some of the defendant’s answers were “rambling” but concluded that he “didn’t notice anything unusual from most of the people that (he) interview(ed) ... it was just a normal interview (like he had) conducted many, many times.”

After the State rested, the defense read > into evidence the deposition of Dr. James C. Thompson, staff psychiatrist at Bryce Hospital, who stated that the defendant had been hospitalized in Bryce for approximately one year, from February 1981 to February of 1982. Based on three interviews, the results of psychological tests, and the defendant’s social history, Thompson concluded that the accused was suffering from “schizophrenia, paranoid type.” The psychiatrist explained that the defendant had “pretty fixed delusions ... that people are against him ... specifically in this case, it was .,. a neighbor or neighbors.” Dr. Thompson stated that the anti-psychotic medication Haldol had been prescribed for the defendant.

When asked his opinion of the defendant’s mental condition at the time of the incident in question, the physician responded as follows:

“A. It would be hard to say exactly, but from what history we have and the fact that I didn’t see him originally — but we felt like that the act of which he was charged, he was acting under a delusion at that time.
“Q. That he was acting under a delusion?
“A. That his neighbor, I believe, was out to get him.
“Q. So would it be your opinion that he was mentally incapable of forming an opinion as to whether or not his actions were right or wrong?
“A. Yes.”

On cross examination, Thompson stated that each of his three interviews with the defendant lasted fifteen minutes and the first session took place fifteen months after the shooting. Dr. Thompson conceded that “the longer it has been from the time of an incident until you interview somebody, the harder it is to look back and see what their mental state was at the time of an incident.” He also admitted that not everyone suffering from a mental disease or defect is unable to appreciate his criminal acts or to conform his conduct to the requirements of the law.

The defense then called Mrs. Nellie Scott, the defendant’s sister, to testify to the defendant’s history of mental problems. She stated that her brother was first hospitalized in the Veterans Administration facility following a series of hallucinations in 1961, but that his aberrant behavior began in 1945 after he was discharged from the service. Mrs. Scott said that after several months her brother was released from the VA Hospital on the medication Thorazine. She returned him to the hospital over the years for further medication whenever he hallucinated or thought people were “after him”. She testified that since 1961 her brother’s mental condition had fluctuated depending upon whether he took the medicine. As long as he had his medication he was, according to his sister, in “pretty good shape.”

During June 1980, Mrs. Scott noticed that her brother’s mental condition began to deteriorate and she found that he did not have his medicine. She stated that during this period he had conversations with people who were not there, took notes in little books, carried a badge, and made calls to the FBI.

Mrs. Lorene Woodruff, another of the defendant’s sisters, corroborated Mrs. Scott’s testimony regarding her brother’s history of mental problems. She testified that she had been appointed the defendant’s guardian for receipt of Social Security benefits.

Ms. Donna Click, a psychiatric social worker, testified that she was employed by Jefferson County to evaluate “alleged mental patients” incarcerated in the jail. At the request of Judge Stewart and Sergeant Gay, she interviewed the defendant and determined that he was in need of further psychiatric testing., Ms. Click read the notebooks kept by the defendant and described the entries as “very bizarre”. She also testified that the defendant told her he was employed by the FBI or the CIA.

The defense rested and the State presented no rebuttal evidence.

The legal principles governing the burden and sufficiency of proof of insanity are collected in Cunningham v. State, 426 So.2d 484 (Ala.Cr.App.1982), and need not be restated here. See also Alvis v. State, (1983) 434 So.2d 859 (Ala.Cr.App.1983). In Lewis v. State, 439 So.2d 1357 (Ala.Cr.App.1983), the accused had also been diagnosed as a paranoid schizophrenic. There, we held that the refusal of the affirmative charge was not error.

“Even if the jury accepted the testimony of the experts, there remains the fact that no expert testified that Lewis was suffering from a mental disease or defect at the time of the crime. Here, there was simply no showing that Lewis lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law at the time of the criminal conduct.
Alabama Code Section 13A-3-1 (1975). Lewis’ own expert testified that he would have periods of remission and recovery.
“ ‘There is no presumption that fitful and exceptional attacks of insanity are continuous — a proposition manifest in itself. It is only insanity of a chronic or permanent nature which, on being proved, is presumed to continue.— Whart.Cr.Ev. Section 730. The rule, therefore, prevails that where an insane person “has lucid intervals, the law presumes the offense of such person to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper.” — 1 Russell on Cr. 11; 1 Hale, 33-4.’ Ford v. State, 71 Ala. 385, 395 (1882).
“See also Cogbill v. State, 8 Ala.App. 223, 227, 62 So. 406 (1913).”

“A defendant does not, by evidence that he was ‘subject to spells of insanity from time to time’, raise a presumption that he was insane when he committed the homicide so as to shift the burden of proving his sanity to the State. Talbert v. State, 140 Ala. 96, 37 So. 78 (1904).” Carey v. State, 361 So.2d 1176, 1178 (Ala.Cr.App.1978).

Evidence of commitments to hospitals for mental and psychological reasons is insufficient, in and of itself, to establish that the accused was legally insane at the time the crime was committed. Evans v. State, 410 So.2d 143 (Ala.Cr.App.1981). “Unusual or weird behavior alone cannot be equated with mental insanity.” Meredith v. State, 370 So.2d 1075, 1078 (Ala.Cr.App.), cert. denied, 370 So.2d 1079 (Ala.1979).

The fact that the defendant could have been insane at the time of the crime does not authorize this Court to reverse the jury’s finding to the contrary. Smith v. State, 32 Ala.App. 209, 211, 23 So.2d 615 (1945). The fact that this Court may not agree with the verdict of the jury “does not warrant a reversal of a cause in which a jury, exercising their solemn prerogative to determine the issues, has rendered a verdict which is supported by substantial evidence, and which verdict cannot rationally be said to be arbitrary.” Cunningham, 426 So.2d at 491, quoting Fitzhugh v. State, 35 Ala.App. 18, 26, 43 So.2d 831 (1950).

Here, there was substantial evidence from which the jury could have found that the defendant was insane. However, that evidence was not so overwhelming and conclusive that they were compelled to so find. For this reason, the judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Joseph TURNER. (Re Joseph Turner v. State)
    83-62.
    Supreme Court of Alabama.
    July 6, 1984.
    Hugh C. Henderson, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

In September of 1982, Joseph Turner was convicted for the murder of his neighbor. His sentence was life imprisonment.

At trial, Turner entered a plea of not guilty and not guilty by reason of insanity. After a jury verdict of guilty, judgment was entered thereon. Turner filed a motion for new. trial, contending proof of insanity was overwhelming and uncontro-verted. That motion was denied. On appeal to the Court of Criminal Appeals, the trial court’s judgment was affirmed. We granted certiorari in order to review the appellate court’s decision.

I

We begin by stating the general rules of law with respect to pleas of insanity in Alabama. These are succinctly stated by Chief Justice Torbert in Christian v. State, 351 So.2d 623, 624 (Ala.1977):

“We begin by stating the general rule in Alabama that, as persons on trial for commission of crimes are presumed sane, the defense of insanity is an affirmative defense which must be clearly proved to the jury’s reasonable satisfaction and the burden of proof in this regard rests on the defendant. Ala.Code, Tit. 15, § 422 (1958); Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Smith v. State, 257 Ala. 47, 57 So.2d 513 (1952); Parrish v. State, 139 Ala. 16, 36 So. 1012 (1903). Thus, where a plea of not guilty by reason of insanity is filed, the burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence. Grissom v. State, 33 Ala.App. 23, 30 So.2d 19 (1947); Lee v. State, 246 Ala. 343, 20 So.2d 471 (1944); Lide v. State, 133 Ala. 43, 31 So. 953 (1901). In this respect, the burden never shifts to the State nor rests on the State. Grammer v. State, 239 Ala. 633, 196 So. 268 (1940).
“In applying these propositions of statutory and case law, it has been stated that the question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence. Carr v. State, 43 Ala.App. 642, 198 So.2d 791 (1967); Hawkins v. State, 267 Ala. 518, 103 So.2d 158 (1958). In making its determination, the jury may reject all expert testimony though it is without conflict. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533 (1945); George v. State, 240 Ala. 632, 200 So. 602 (1941); Parrish v. State, 139 Ala. 16, 36 So. 1012 (1903). However, opinion testimony, even of experts in insanity cases, must be weighed by the jury and may not be arbitrarily ignored. Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954); Boyle v. State, 229 Ala. 212, 154 So. 575 (1934).”

In determining the issue presented by this case, we remain cognizant of these general rules regarding pleas of sanity. Further, we respect the great weight to be afforded the verdict of the jury.

II

Because the fact that appellant shot and killed the victim is not an issue on appeal, it is unnecessary to detail the evidence here. Rather, the issue on appeal is whether the appellant, by a preponderance of the evidence, proved that, as a result of a mental disease or defect, he lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Section 13A-3-1, Code 1975. Therefore, we cite only the evidence which tends to illustrate appellant’s mental state at the time the killing was done.

Eugene Edwards, who lived in the same neighborhood as the victim and the defendant, stated that he was out in the yard playing dominoes when he saw the defendant walk outside with a pistol in his hand. The defendant shot twice into the ground and said, “I will shoot anybody. I have got a right to do what I am doing.” He then walked over to the victim, fired twice, re-holstered his pistol and went back inside.

On cross examination, Edwards testified that he had lived near the defendant for several years and had never noticed any “strange behavior” on the defendant’s part, or seen the defendant “bother” anyone. His contacts with Turner were limited to occasions when Edwards needed to borrow gas for his car from Turner.

Mr. Johnny Ruffin was watching the domino game when he heard a shot and turned to look. He saw the defendant fire two shots at the victim and then start mumbling to himself. On cross examination he said that the men in the domino game had been talking about the fact that defendant claimed to be “with the FBI or something.”

Officer Ross Spurlock of the Birmingham Police Department arrived on the scene shortly after the shooting and ordered the defendant to “freeze,” whereupon the defendant dropped his gun, made no attempt to escape, and surrendered to the police. Spurlock said that the defendant appeared to know where and who he was and appeared to recognize the officer as a policeman.

Birmingham Police Sergeant James E. Gay interviewed the defendant after his arrest and took a statement from him at the police station. Gay testified that during the interview the defendant appeared to comprehend the questions he was asked, claimed to understand his constitutional rights, and seemed to know the difference between telling the truth and telling a lie, insisting that he was going to tell the truth. According to the officer, the defendant understood where and who he was, knew that Sergeant Gay was a police officer, and answered his questions in a forthright manner.

On cross examination, Gay conceded that some of the defendant’s answers were “rambling” but concluded that he “didn’t notice anything unusual from most of the people that [he] interview[ed] ... it was just a normal interview [like he had] conducted many, many times.”

The State presented no expert testimony concerning Turner’s sanity.

After the State rested, the defense read into evidence the deposition of Dr. James C. Thompson, staff psychiatrist at Bryce Hospital, who stated that the defendant had been hospitalized in Bryce for approximately one year, from February of 1981 to February of 1982. Based on three interviews, the results of psychological tests, and the defendant’s social history, Thompson concluded that the accused was suffering from “schizophrenia, paranoid type.” The psychiatrist explained that the defendant had “pretty fixed delusions ... that people are against him ... specifically in this case, it was ... a neighbor or neighbors.” Dr. Thompson stated that the anti-psychotic medication Haldol had been prescribed for the defendant.

When asked his opinion of the defendant’s mental condition at the time of the incident in question, the physician responded as follows:

“A. It would be hard to say exactly, but from what history we have and the fact that I didn’t see him originally — but we felt like that the act of which he was charged, he was acting under a delusion at that time.
“Q. That he was acting under a delusion?
“A. That his neighbor, I believe, was out to get him.
“Q. So would it be your opinion that he was mentally incapable of forming an opinion as to whether or not his actions were right or wrong?
“A. Yes.”

On cross examination, Thompson stated that each of his three interviews with the defendant lasted fifteen minutes and the first session took place fifteen months after the shooting. Dr. Thompson stated that “the longer it has been from the time of an incident until you interview somebody, the harder it is to look back and see what their mental state was at the time of an incident.” He also stated that not everyone suffering from a mental disease or defect is unable to appreciate his criminal acts or to conform his conduct to the requirements of the law.

The defense then called Mrs. Nellie Scott, the defendant’s sister, to testify to the defendant’s history of mental problems. She stated that her brother was first hospitalized in the Veterans Administration facility following a series of hallucinations in 1961, but that his aberrant behavior began in 1945 after he was discharged from the service. Mrs. Scott said that after several months her brother was released from the VA hospital on the medication Thorazine. She returned him to the hospital over the years for further medication whenever he hallucinated or thought people were “after him.” She testified that since 1961 her brother’s mental condition had fluctuated, depending upon whether he took the medicine. As long as he had his medication he was, according to his sister, in “pretty good shape.”

During June 1980, Mrs. Scott noticed that her brother’s mental condition began to deteriorate and she found that he did not have his medicine. She stated that during this period he had conversations with people who were not there, took notes in little books, carried a badge, and made calls to the FBI.

Mrs. Lorene Woodruff, another of the defendant’s sisters, corroborated Mrs. Scott’s testimony regarding her brother’s history of mental problems. She testified that she had been appointed the defendant’s guardian for receipt of Social Security benefits.

Ms. Donna Click, a psychiatric social worker, testified that she was employed by Jefferson County to evaluate “alleged mental patients” incarcerated in the jail. At the request of Judge Stewart and Sergeant Gay, she interviewed the defendant and determined that he was in need of further psychiatric testing. Ms. Click read the notebooks kept by the defendant and described the entries as “very bizarre.” She also testified that defendant told her he was employed by the FBI or the CIA.

Ill

We must note the facts in this case are strikingly similar to those presented in Christian v. State, supra, where we held that the verdict of the jury was contrary to the preponderance of the evidence. In the instant case the evidence would have authorized the jury to find that appellant was insane at the time the shooting was committed. Indeed, the evidence of appellant’s insanity from both expert and lay witnesses was substantially undisputed and uncon-tradicted by the evidence presented by the State. The sole evidence presented by the state which can be considered contradictory is testimony by Turner’s neighbor and by the police sergeant who interviewed Turner after his arrest. Both had limited contacts with Turner and both testified they had not noticed unusual or aberrant behavior by Turner in their contacts with him.

After consideration of all the testimony presented at trial, we conclude the evidence of the defendant’s insanity was so strong and overwhelming that it mandated the jury find appellant was insane at the time the crime was committed. For all that appears from the record, we can find no facts which would give rise to a reasonable inference to sustain the jury’s conclusion that appellant’s act was that of a sane man; hence the conviction could only prevail because of the rebuttable statutory presumption of sanity. Because we consider that appellant has conclusively overcome this presumption of sanity by the great preponderance of the evidence, the jury’s decision cannot stand.

The great preponderance of the evidence sustained the plea of insanity and was sufficient to rebut the State’s presumption of sanity. Therefore, the judgment of the Court of Criminal Appeals is reversed and the cause remanded for judgment consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and JONES, BEATTY and ADAMS, JJ., concur.

MADDOX, FAULKNER, ALMON and SHORES, JJ., dissent.


text:
    Joseph TURNER v. STATE.
    6 Div. 5.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
   AFTER REMANDMENT

BOWEN, Presiding Judge.

The judgment of the circuit court is reversed on authority of Ex parte Turner, 455 So.2d 910 (Ala.1984), wherein the Alabama Supreme Court held, “The great preponderance of the evidence sustained the plea of insanity and was sufficient to rebut the State’s presumption of sanity.”

REVERSED AND RENDERED.

All Judges concur.


author: TYSON, Judge. BOWEN, Presiding Judge, HUBERT TAYLOR, Judge,

text:
    Geryl Watson WILLIS v. STATE of Alabama.
    3 Div. 618.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.

      Barry E. Teague, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Geryl Watson Willis was charged in a four count indictment with the unlawful possession of cocaine, phencyclidine, meth-aqualone and marijuana, all contrary to the provisions of the Alabama Uniform Controlled Substances Act.

The jury found the appellant guilty under each of the four counts of the indictment and following a sentencing hearing, the trial court initially set sentence at 15 years’ imprisonment on each of the four counts, or a total of 60 years, which were to be served consecutively.

After the opinion of this court in Vogel v. State, 426 So.2d 863 (Ala.Cr.App.1980), affirmed 426 So.2d 882 (Ala.1982), the trial court entertained a petition for proper sentence and the appellant’s sentence was set at 15 years’ imprisonment on the guilty verdict on each of the four counts, with each of the sentences to run concurrently. This appeal follows.

The appellant, Geryl Watson Willis, was found by three Montgomery police officers, asleep in room 140 Matador Inn, located just off I 85 in Montgomery, Alabama, on the early morning of November 11, 1980. The three officers, at the request of the manager of the motel, Mr. Music, followed a trail of blood leading from the parking lot directly to the room. After seeing the door ajar and knocking on same, they entered the room, where appellant lay asleep. A search of this room by Officers Acteimer, T.R. Shanks and James R. Gaines, revealed a pistol lying on a night stand, a brief case lying on an adjoining bed, which was un-rumpled, several bottles of capsules found in the bathroom and some clear packages of plant material (which was later determined to be marijuana) lying on the floor near the spread on the bed. The officers had been called to the parking lot of the Matador Inn on complaint of the owner of an automobile because of a broken window in the automobile and some items missing therefrom. At the door of the motel room an antenna of a CB radio was observed, along with some booklet material which belonged to the owner of the automobile with the broken window. Upon seeing this and upon getting no response from the occupant of the room, the officers entered, found the narcotics and placed the appellant under arrest.

Shortly before entry into the motel room, a female had emerged, who appeared to be in a dazed or drunken stupor.

Monica Marie Bond testified that she had met the appellant at a night club on Fair-view Avenue in Montgomery after having several drinks at Crockmier’s Restaurant, where she was employed as a cocktail waitress. The appellant, Willis, had invited Ms. Bond and several companions to come to the Matador Inn to a party. Ms. Bond testified that she was handed some white powdery substance which she thought was cocaine and sniffed it at the motel room in the company of the appellant. She stated that she did not recall any other persons being present in the motel room and had no recollection of any further events until she came to the next morning and stumbled out of the room asking for help.

The manager, Mr. Music, confirmed that he observed her coming out of the room shortly after eight o’clock the next morning and had one of the employees give her a sheet or towels to cover her person and took her to the office where the police officers could talk to her.

An inventory of the contents of the room was made by the arresting officers and a statement was taken from Ms. Bond later at police headquarters.

I

The appellant raises four issues in this appeal. He first states that the trial court committed error by allowing the police officers to testify to what appeared to have been the burglary of a motor vehicle on the parking lot of the Matador Inn on the night before or early morning on which the appellant was found in room 140 of the Matador Inn.

This, however, was all part of one continuous criminal transaction, as the blood trail from the broken window clearly led into the doorway of room 140 and into the room itself where appellant slept' with his arm cut and bleeding, wrapped in a towel, and the sheets also contained blood of the appellant. Burlison v. State, 369 So.2d 844 (Ala.Cr.App.1979), cert. denied, Ex Parte Burlison, 369 So.2d 854 (Ala.1979); Reed v. State, 401 So.2d 131 (Ala.Cr.App.1981), cert. denied, 401 So.2d 139 (Ala.1981). See generally, Alabama Digest Criminal Law key no. 363.

Further, there was no proper objection to the testimony. Thus, any error is not properly preserved for review.

II

The appellant also asserts that the State was improperly allowed to bolster the credibility of its own witness prior to the witness’ credibility being attacked. A review of the record where this matter is alleged to have occurred (R. 99-101), however, reveals no proper objection. Thus, this issue is not properly preserved for review.

III

Appellant also asserts that he was prevented from properly examining Ms. Bond concerning her knowledge of the drug cocaine. The record here reveals that the trial court inquired concerning the granting of immunity to Ms. Bond and found that such was only with reference the events which occurred on the night and early morning of November 10-11, 1980 leading up to the arrest that morning. The trial judge then appointed experienced legal counsel to advise Ms. Bond and following consultation, she invoked her privilege against self incrimination with reference any questions concerning the use of cocaine on other occasions. Clearly, this ruling was correct and no error appears. The authorities cited by appellant’s counsel in brief do not support his position.

IV

Finally, both the State and the appellant point out that the State of Alabama had given proper notice of its intent to proceed under the Alabama Habitual Felony Offender Act and that two prior felonies were shown to the trial judge. The provisions of this act are mandatory in application. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981).

The record in the case at bar reveals the appellant had two prior felony convictions in the State of Mississippi, one for the attempted sale of controlled substances and the other for the attempted sale of marijuana (R. 245). These were not called to the attention of the trial judge who endeavored to sentence the appellant pursuant to the provisions of Vogel, supra.

As stated by this court in Coleman v. State, 424 So.2d 685 (Ala.Cr.App.1982):

“In Peoples v. State, 415 So.2d 1230 (Ala.Cr.App.1982) affirmed after remand, 421 So.2d 1383 ([Ala.]1983), we find the following:
‘Ala.Code § 13A-5-9(b)(3) (Supp.1981) mandates that in all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and then is convicted of a Class “A” felony, ‘he must be punished by imprisonment for life or for any term of not less than 99 years.’ Once a defendant admits prior felony convictions they are proved for purposes of the Habitual Offender Act. See, Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981); Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.) cert. denied 406 So.2d 1053 (Ala.1981).
“As in Peoples, supra:
‘We affirm the guilt phase of the trial. However, because of the failure to apply the Habitual Felony Offender Act, we remand this cause with directions to the trial court to conduct another sentencing hearing applying said act. The State of Alabama should, a reasonable time prior to the sentencing hearing, notify the appellant of the prior convictions under which the State plans to proceed, although for all practical purposes the appellant is aware of such prior convictions.
‘All parties should be present, with counsel, and any evidence offered shall be recorded for this court’s review. A complete transcript of these proceedings shall be transmitted to this court under Motley, supra and Aplin v. State [421 So.2d 1299] [Ms. December 29, 1981] (Ala.Cr.App.1981). See Motley v. State, 409 So.2d 945 (Ala.Cr.App. 1981).’ ”

AFFIRMED, BUT REMANDED WITH DIRECTIONS FOR ANOTHER SENTENCING HEARING.

HARRIS, J., concurs.

BOWEN, P.J., concurs in result with opinion.

HUBERT TAYLOR, J., dissents with opinion.

SAM TAYLOR, J., recuses self.

BOWEN, Presiding Judge,

concurring in result only.

I am hard-pressed to understand how the burglary of the automobile in which no drugs or contraband were found and the illegal possession of controlled substances found in a motel room were part of “one continuous criminal transaction” as found by the majority of this Court. There is no contention that the drugs were stolen from the car. Certainly, it cannot be argued that evidence of the burglary “is inseparably connected with or is a part of the res gestae of the” possession case. C. Gamble, McElroy’s Alabama Evidence, Section 69.-01(3) (3rd ed. 1977). Even the Attorney General does not argue this on appeal.

However, despite the prejudicial and irrelevant nature of the burglary, the fact remains that there was no proper objection.

HUBERT TAYLOR, Judge,

dissenting.

The refusal of the trial court to allow defense counsel to cross examine the witness for the State, Mrs. Bond, was clearly error. The State claims that cross examination would concern only collateral matters; however, I feel the identity of the substance allegedly given to Mrs. Bond by the appellant is the most material aspect of the State’s case. A witness cannot selectively testify on direct examination concerning certain material facts and then refuse to answer on the ground of the right to remain silent when questioned about the same material facts on cross examination. International Bro. of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971).

The State should not be allowed to fashion immunity in a manner that precludes cross examination on material aspects of a case. The testimony of Mrs. Bond should have been excluded once it became apparent that she was not available for cross examination. The right to a vigorous and detailed cross examination in a criminal proceeding is at the very heart of the judicial process. It is that right that was denied appellant and for which he deserves a new trial.


author: PER CURIAM. MADDOX, Justice

text:
    Ex parte Geryl Watson WILLIS. (Re: Geryl Watson Willis v. State of Alabama).
    83-297.
    Supreme Court of Alabama.
    May 18, 1984.
    Rehearing Denied July 6, 1984.

      Barry E. Teague, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This case presents the following questions:

(1) Did the trial court err in allowing a prosecution witness to invoke the Fifth Amendment to the United States Constitution when she was being cross-examined by defense counsel on matters which she had testified about on direct examination?

(2) Did the trial court err in permitting the state to show evidence of a burglary of an automobile and a theft of articles from the automobile when the indictment only charged the defendant with possession of drugs?

The facts of the case are set out in the opinion of the Court of Criminal Appeals; however, petitioner, pursuant to the provisions of Rule 39(k), Ala.R.App.P., requested that court to add additional facts to the opinion, which that court refused to do. Finding those additional facts to be correctly stated, we will include them in our consideration of the issues raised by the petitioner.

Briefly stated, petitioner was charged with and convicted of the unlawful possession of controlled substances. The controlled substances were found by police in Room 140 of the Matador Inn in Montgomery, where appellant was sleeping. Police had been called to the scene to investigate a complaint by a motel guest that his car had been burglarized and that a trail of blood droplets led from the car to Room 140. Before the police arrived, a young woman had come out of Room 140 “in a dazed or drunken stupor.” This young woman, Monica Marie Bond, was granted immunity from prosecution and testified for the state at trial, and was a principal witness for the state.

I

We first address the question of whether the trial court erred in refusing to require the witness Bond to answer questions on cross-examination, because she invoked her right to remain silent under the provisions of the Fifth Amendment to the U.S. Constitution. The Court of Criminal Appeals found that Ms. Bond was granted immunity only with reference to the events which occurred on the night and early morning of November 10-11, 1980, which led up to the arrest of the petitioner; the Court of Criminal Appeals concluded, therefore, that Ms. Bond could invoke her privilege against self-incrimination. The petitioner cites International Bhd. of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971), for the proposition that “a witness cannot selectively testify on direct examination concerning material facts and then refuse to answer on the grounds of the right to remain silent when questioned about the same material facts upon cross-examination.” (Emphasis added.) The state agrees with petitioner that Hatas states a correct proposition of law, but contends that it does not apply to the facts of this case.

In view of all the operative facts of this case, we conclude that the trial court erred in allowing the witness to invoke her privilege against self-incrimination. The rule in Alabama is that an accused has a right to conduct a searching cross-examination of a witness. The judgment of the Court of Criminal Appeals, 455 So.2d 914, is due to be reversed as to this aspect of the case.

II

We next address petitioner's claim that the trial court erred in permitting the state to introduce evidence of the automobile burglary. The Court of Criminal Appeals held that the evidence of the burglary was admissible because it “was all part of one continuous criminal transaction, as the blood trail from the broken window clearly led into the doorway of Room 140 and into the room itself where appellant slept, with his arm cut and bleeding, wrapped in a towel, and the sheets also contained blood of the appellant.” The Court further found that there was no proper objection to the testimony, and that the error, if any, was not preserved.

Whether a proper objection to the admission of the evidence was made is disputed. Petitioner, by using Rule 39(k), asked the Court of Criminal Appeals to include in the opinion the actual objection which was made:

“MR. BUCKLEY: Your Honor, if it please the Court, I object, I think it may be prejudicial and it’s certainly irrelevant. He’s here in Court and the jury has been informed on what he’s charged with here in Court today. It would be nothing but an attempt to bring out other charges for which he’s not prosecuted.”

We cannot agree with the Court of Criminal Appeals that the car burglary and the drug possession were parts of one continuous criminal transaction, thereby making the evidence admissible; therefore, we must consider whether a proper objection was made so as to preserve the error for review. The following transpired during the trial in connection with this evidence of the burglary:

“Q. Was he placed under arrest at this time, sir?
“A. Yes, sir, Investigator Bill Gaines handcuffed the subject.
“Q. And what was he charged with, if you know?
“A. Well, at the time we picked him up he was — (interrupted).
“MR. BUCKLEY: Your Honor, if it please the Court, I object, I think it may be prejudicial and it’s certainly irrelevant. He’s here in Court and the jury has been informed on what he’s charged with here in Court today. It would be nothing but an attempt to bring out other charges for which he’s not prosecuted.
“MR. TRAEGER: Your Honor, I merely request, they have already been performed [sic], we submit to the Court, it’s nonprejudicial, they should be allowed to hear it from the arresting officer.
“THE COURT: Objection overruled. “BY MR. TRAEGER:
“Q. What was he arrested for at this time, sir?
“A. Well, at that time we had him for Unlawful Breaking and Entering of a Vehicle, Theft of Property and then the drugs we had on him.”

We believe the objection was sufficiently specific, especially in view of the fact that, as the defense attorney pointed out, the jury knew what he was charged with in the proceeding they were hearing. The defense attorney also stated that an answer to the question “would be nothing but an attempt to bring out other charges for which he’s not prosecuted.” The answer made to the question, in fact, does show that other charges lodged against the defendant were mentioned, thereby giving credence to the defense attorney’s statement that the information the prosecutor sought to introduce into evidence was the fact that the defendant was charged with other crimes. We hold that the overruling of the objection was prejudicial error.

The rule about the admissibility of evidence of other crimes is set forth succinctly in Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959):

“The general rule is that in criminal prosecutions, evidence of prior criminal acts is not admissible since the only facts to be laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, and which alone the defendant is called on to answer.
“This rule, however, is subject to some well recognized exceptions. Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, or to establish the identity of the accused (and perhaps as bearing on the issue of insanity when that defense is pleaded in the case. — See ‘The Law of Evidence in Alabama’ by Honorable J. Russell McElroy, § 61, pp. 19-20; I Wharton’s ‘Criminal Evidence’, 10th Ed. p. 156, § 41.) The authorities also recognize such an exception to show system or plan usually to identify the accused or to show intent. Wharton’s, supra, p. 146, § 39. But even under the exceptions noted they or one of them is admissible only when the evidence is relevant to the crime charged. Noble v. State, 253 Ala. 519, 45 So.2d 857.
“Stated another way, the State is not permitted to give in evidence other crimes alleged to have been committed by the defendant unless they are so connected by circumstances with the particular crime charged as that proof of one fact with its circumstances has some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged. Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847; Wigmore on Evidence, 3rd. Ed., Vol. 2, § 304.”

While we recognize that the discovery of the drugs apparently resulted from an investigation being made of the automobile burglary, we cannot hold that the burglary was a part of the res gestae of the crime of drug possession. Because we find the objection to be sufficiently specific, we must reverse the judgment and remand the case to the Court of Criminal Appeals.

REVERSED AND REMANDED.

JONES, ALMON, SHORES, BEATTY and ADAMS, JJV concur in part I of the opinion.

TORBERT, C.J., and MADDOX and FAULKNER, JJ., dissent.

TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur in part II of the opinion.

EMBRY, J., not sitting.

MADDOX, Justice

(dissenting as to Part I).

I believe International Bhd. of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971), is applicable in this case and that the witness was properly allowed to invoke her privilege against self-incrimination; therefore, I dissent as to Part I.

In Hatas, a majority of this Court found that the questions posed to the witness there “called for testimony which ... was highly relevant and material to International’s defense.” In that case, the witness had testified on direct examination about how he had helped to organize a strike against Bowman Transportation Company in Birmingham. International’s defense in the civil case against it was that the witness was not acting as its agent, servant, or employee. The witness was asked to answer questions regarding which, if any, of the officers of the Birmingham local he had talked to. The witness refused to answer and invoked the privilege against self-incrimination. As I read the holding of Hatas, it is that a witness who testifies on direct examination to facts material to the case cannot refuse to answer questions on cross-examination which would be highly relevant and material to the defense. Does the Hatas rule apply here? I think not. The witness here was granted limited im-munityonly. To require her to detail when and where she had been exposed to cocaine could have been incriminating to her. In fact, the witness, after consultation with court-appointed counsel, claimed her privilege not to incriminate herself. I assume that the testimony would have been incriminating to the witness. The critical issue is whether her answer to the question would have been material to the petitioner’s defense even though incriminating to her. His defense to the charge brought against him was that he did not possess the illegal drugs. The question, therefore, becomes: Would the witness’s prior use of drugs have been “highly relevant and material” on the issue of whether the defendant possessed the drugs he was charged with possessing? I think not. If the witness had been required to answer the question, it probably would have been an admission on her part of past possession of illegal drugs by her, but would not have been “highly relevant and material” on the question of whether the defendant possessed the drugs in Room 140 of the Matador Inn on November 10 and 11. Had the defense been that the drug was not what the witness claimed it to be, then evidence of her past experience with the drug would have been highly relevant and material to the defense, but this was not the defense. If the defense had been that the witness herself was the one who possessed the drugs, and not the accused, then the Hatas rule would be applicable, but that was not the defense either, as I understand the facts. In fact, the witness was granted immunity only as to the particular offense about which she implicated the defendant. I recognize the rule that an accused has a right to conduct a searching cross-examination of a witness, but I believe that a witness’s right not to incriminate himself must be balanced against this right of the accused. The Hatas rule states how this balance must be achieved.

I would find, therefore, that the answer called for by the question posed was not highly relevant and material to the facts the witness testified to on direct examination so as to trigger application of the Hatas principle. Consequently, I would hold that the trial court did not err in allowing the witness to claim her privilege not to incriminate herself.

TORBERT, C.J., and FAULKNER, J., concur.

      . The actual question was: "When and where did you acquire the familiarity with cocaine?”


text:
    Geryl Watson WILLIS v. STATE of Alabama.
    3 Div. 618.
    Court of Criminal Appeals of Alabama.
    July 31, 1984.
   Appeal from Montgomery Circuit Court. TYSON, Judge.

Reversed and Remanded for a new trial on authority of Willis, 455 So.2d 917 (Ala.1984).

REVERSED AND REMANDED FOR NEW TRIAL.

All the Judges concur except TAYLOR, J., who recuses self.


text:
    Lonnie C. McGOWAN v. STATE.
    7 Div. 24.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-295.

      K. W. Gilchrist, Ashville, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   HARDIE B. KIMBROUGH, Presiding Circuit Judge.

The appellant was indicted by the St. Clair Grand Jury for receiving stolen property in the second degree in violation of § 13A-8-18, Code of Alabama 1975. Appellant was arraigned and entered a plea of not guilty. The jury returned a verdict of guilty, and the court, pursuant to the Habitual Felony Offender Act, sentenced appellant to life imprisonment in the penitentiary of the State of Alabama.

Appellant first contends that the State failed to prove the value of the stolen property received by the appellant to be in excess of $100. The record, however, reveals that the owner/victim testified as follows:

“Q. What was the value of that television at the time it was stolen or turned up missing?
“A. $119.00.
“Q. $119.00?
“A. Yes.”

There was further testimony by the victim/witness on cross examination and redirect examination in which she maintained that the value of the stolen property was in excess of $100, to-wit, $119.

The victim/witness testified that she was the owner of the stolen television set. The owner of personal property may testify as to the value of such property. The testimony of the victim/witness met the requirements for proof of value. Bell v. State, 364 So.2d 420 (Ala.Cr.App.1978); C. Gamble, McElroy’s Alabama Evidence § 128.11 (3d ed. 1977).

The appellant also contends that he was improperly sentenced pursuant to the Habitual Felony Offender Act, § 13A-5-9, Code of Alabama 1975. The record reflects that the appellant was adjudged guilty of receiving stolen property in the second degree on April 1, 1982. The record further reflects that oral notice was given to the appellant and his attorney of the State’s intention to proceed against the appellant pursuant to the Habitual Felony Offender Act. It next appears that written notice by the State of Alabama to proceed against appellant, pursuant to the Habitual Felony Offender Act, was filed on May 20, 1982. An order dated August 2, 1982, was entered by the court, wherein it was found that the appellant had been convicted of more than three previous felonies, and, pursuant to § 13A-5-9, Code of Alabama 1975, he was sentenced to life imprisonment in the State penitentiary. The record, however, does not reflect any transcript whatsoever of the sentence hearing. The State must prove an accused’s record in order to trigger the operation of the Habitual Felony Offender Act’s sentencing provisions. McGhee v. State, 412 So.2d 327 (Ala.Cr.App.1982).

The record in this case is devoid of any evidence, other than the notice filed by the district attorney, of the appellant’s prior convictions. Further, there is no evidence in the record which affirmatively reflects whether the appellant was represented by counsel in any of his alleged prior convictions. Although appellant, in his brief, alludes to objections during the sentence hearing, the record does not include a transcript of the sentence hearing, nor does it contain any evidence of the appellant’s pri- or convictions admitted by the court at the sentence hearing.

The conviction in this cause is affirmed.

The case is remanded for a sentence hearing pursuant to § 13A-5-9, Code of Alabama 1975, § 13A-5-10, Code of Alabama 1975, and A.R. Crim. P. Temp. 6(b)(3), in order that evidence of the accused’s pri- or convictions will be of record, including accused’s representation by counsel or waiver of counsel at the time of the prior convictions.

The foregoing opinion was prepared by the Honorable HARDIE B. KIMBROUGH, Presiding Circuit Judge, First Judicial Circuit, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

AFFIRMED; REMANDED FOR PROPER SENTENCING.

All the Judges concur.


author: PER CURIAM.

text:
    Lonnie C. McGOWAN v. STATE.
    7 Div. 24.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied July 31, 1984.
   ON RETURN TO REMAND

PER CURIAM.

On return to remand, the record indicates that a sentence hearing was held in compliance with our opinion issued November 1, 1983. During that hearing, the State, using certified copies on the docket sheet from Jefferson County, properly proved appellant’s prior convictions and affirmatively showed that he was represented by counsel at the time of each prior conviction.

The judgment of conviction of the lower court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: JOSEPH A. COLQUITT, Circuit Judge.

text:
    Odis McMURPHY v. STATE.
    5 Div. 691.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Quashed Sept. 21, 1984 Alabama Supreme Court 83-637.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   JOSEPH A. COLQUITT, Circuit Judge.

Appellant was convicted of theft in the second degree and, as a habitual offender, was sentenced to fifty years’ imprisonment.

The evidence as produced by the state tended to show the following facts. Late in the afternoon, on November 6, 1981, the appellant entered Lazenby’s Firestone in Opelika, Alabama, which was owned by Mr. Elmer Lazenby.

Mr. Lazenby testified that appellant stated he owned a motel in Boaz, Alabama, and wished to buy two television sets. The two men then negotiated a price of $800 for the sets. This price reflected a discount given by Mr. Lazenby to McMurphy in hopes of getting future business from him. Mr. Lazenby failed to get appellant’s tax number and thus had to pay sales tax on this sale. Appellant had Mr. Lazenby make out a check payable to Lazenby’s for the amount of $800 which McMurphy then signed. Mr. Lazenby studied appellant’s driver’s license and Social Security card, which were offered as identification, and wrote down the driver’s license number and the tag number of the van he was driving. Then he helped appellant load the television sets into the van.

Mr. Lazenby endorsed the check and deposited it into the “Lazenby's” checking account on November 7. On November 13, the check was returned stamped “Account Closed.” Mr. Lazenby stated that he usually tried to get in touch with people who owed him money but after finding out that appellant no longer lived at the Boaz address printed on the returned check, and had not lived there for some time, he made no effort to contact McMurphy.

Mr. Lazenby contacted his attorney and then a friend, Judge G.H. Wright, Jr., about the matter. Both men advised Mr. Lazenby to swear out a warrant for McMurphy’s arrest. He also testified that he had previously had some instances where he was given bad checks and that some were treated as felonies and some as misdemeanors.

Officer Gary Knight of the Opelika Police Department testified that the determination whether to treat a bad check case as a felony or misdemeanor depended on a number of factors, and the police department often advised the merchant to consult with the District Attorney as to whether felony charges should be brought against the individual who wrote the check. The Lee County Circuit Clerk also testified that the determination as to whether or not a felony warrant would be signed was made by the District Attorney.

Ms. Judy Berry, head bookkeeper of the Sand Mountain Bank of Boaz — the bank on which appellant’s check was drawn — testified that the appellant opened a joint checking account in May, 1981, and arranged for his monthly Social Security check to be directly deposited into the account. She also testified that his account was overdrawn at the end of each accounting period from June through October, 1981, and that the bank had also returned thirty-one checks drawn on the account because of insufficient funds. Ms. Berry testified that the bank attempted to notify appellant by mail that checks drawn on his account had been returned, but that the notices were returned by the Post Office marked “Unclaimed.” The bank closed McMurphy’s overdrawn checking account and charged the amount to the bank’s “Overdraft Losses” account as uncollectible.

Appellant testified that it was never his intention to deceive Mr. Lazenby and that he believed his checking account at the Sand Mountain Bank contained sufficient funds to cover the $800 check. He stated that two Social Security checks were to be deposited in his account each month, and that the bank was in error. McMurphy also stated that when he questioned the bank and attempted to get a monthly bank statement sent to him, the bank told him it did not send out statements on direct deposit accounts. He further testified that he never told Mr. Lazenby he owned a motel, only that he worked for someone who did and that he travelled around the country as an antique dealer.

Appellant was indicted, tried and convicted of theft in the second degree.

I

Appellant’s first contention of error is that the evidence did not sustain a conviction of theft in the second degree.

Section 13A-8-2, Code of Alabama 1975, provides that a person commits the crime of theft o'f property if he “knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.” Theft in the second degree consists of property which exceeds one hundred dollars in value but does not exceed one thousand dollars, Ala.Code § 13A-8-4 (1975).

Appellant maintains that the district attorney failed to prove the elements of deception and intent in the case against him. Deception is defined in Ala.Code § 13A-8-1 (1975). If a person knowingly “promises performance which the defendant does not intend to perform or knows will not be performed,” a deception occurs. “Failure to perform, standing alone, however, is not proof that the defendant did not intend to perform.” Ala.Code § 13A-8-l(l) (1975).

Generally, Alabama cases which involve deception are pre-Criminal Code cases tried under the charge of false pretenses. The crime of false pretenses now constitutes theft under the new criminal code. St. Paul Fire & Marine Ins. Co. v. Veal, 377 So.2d 962 (Ala.1979); Commentary, Ala.Code §§ 13A-8-2 through §§ 13A-8-5 “False Pretenses,” at 269.

The elements of false pretenses were: (1) the pretense, (2) its falsity, (3) obtaining property by reason of the pretense, (4) knowledge on the part of accused of falsity of the pretense, and (5) intent to defraud. Mitchell v. State, 56 Ala.App. 718, 325 So.2d 509 (1975), cert. denied, 295 Ala. 412, 325 So.2d 513 (1976); Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, cert. denied, 258 Ala. 558, 64 So.2d 121 (1952).

False pretense must have operated as an inducement for the injured party to part with goods or money. Smith v. State, 409 So.2d 927 (Ala.Cr.App.), cert. denied, 409 So.2d 930 (Ala.1981). However, it was not necessary that the false pretense was the sole, exclusive or decisive inducement for the owner’s parting with his property; it was sufficient if he would not have parted with it in the absence of the false pretense. Franklin v. State, 44 Ala.App. 521, 214 So.2d 924 (1968). The false pretense must not have been merely the expression of an opinion then entertained by the defendant, but must relate to existing fact, or to fact which has already occurred. Jones v. State, 236 Ala. 30, 182 So. 404 (1938).

The cases of Jones v. State, 55 Ala.App. 651, 318 So.2d 348 (1975), and Eaton v. State, 16 Ala.App. 405, 78 So. 321, 322 (1918), both false pretenses cases, involve circumstances similar to the case at bar. In both cases this court held:

“The giving of the check, if given without an explanation to the contrary, was in and of itself a representation, symbol, or token that the defendant had money on deposit in the bank on which the check was drawn, and if this check was given with the intent to deceive the seller of the goods in this case, and he was thereby induced to part with the title to his property, and the symbol or token was false, and the seller was thereby deceived, the defendant was guilty.”

Based upon our examination of the facts, we find the evidence of deception to be sufficient.

In a theft trial intent is a question for the jury. Craig v. State, 410 So.2d 449 (Ala.Cr.App.), cert. denied, March 19, 1982 (No. 81-415). Furthermore, fraudulent intent need not be proven by direct substantive evidence, but rather, can be inferred from conduct of defendant and circumstances of the case. Cottonreeder v. State, 389 So.2d 1169 (Ala.Cr.App.1980).

On an appeal from a conviction, this Court is required to consider the evidence in the most favorable light for the prosecution. Smelcher v. State, 385 So.2d 653 (Ala.Cr.App.1980); Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975). As we stated in Bell v. State, 339 So.2d 96, 98 (Ala.Cr.App.1976):

“Our function, where sufficiency of the evidence is before us, is to examine the record and determine if the State put on sufficient evidence from which a jury might have found the accused guilty. We must allow all reasonable presumptions for the correctness of the verdict, bearing in mind that conflicting testimony presents a question for the jury. Only when the preponderance of the evidence against the verdict is so decided as to convince this Court that it was wrong and unjust will the verdict be overturned.” (Citations omitted.)

The evidence was sufficient to support a conviction. We now look to appellant’s second contention.

II

The appellant next argues that it was unconstitutional for the district attorney to prosecute him for theft, a felony, when the majority of bad checks are prosecuted as misdemeanors under Alabama’s “bad check law.”

It is clear that the legislature may create two or more criminal offenses which may be committed by a single act. Coleman v. State, 290 Ala. 346, 276 So.2d 589 (1973); Clonts v. State, 42 Ala.App. 287, 161 So.2d 155 (1964).

When such an event occurs, the State may elect to prosecute for either offense, or under either statute. Coleman, supra, 290 Ala. at 349, 276 So.2d 589; Smith v. State, 409 So.2d 927 (Ala.Cr.App.), cert. denied, 409 So.2d 930 (Ala.1981).

Appellant also contends that the vague ways in which the term deception is distinguished as it is applied to felony or misdemeanor eases is constitutionally suspect and encourages arbitrary and erratic arrests and convictions.

The general rule in Alabama is that: “In enacting a criminal statute, there is an obligation on the State to so frame it that those who are to administer it and those to whom it is to be administered may know what standard of conduct is intended to be required and legislation may run afoul of the due process clause because of failure to set up any sufficient guidance to those who would be law abiding, or to advise a defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law’s enforcement.” (Citations omitted.)

Bolin v. State, 266 Ala. 256, 96 So.2d 582 (1957).

This court has previously recognized that “due notice that an act has been made criminal before it is done” is required as well as “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Quoted in Poe v. State, 389 So.2d 154 (Ala.Cr.App.1980). We are satisfied that the definition of “deception” in § 13A-8-1, Code of Alabama (1975), meets these standards. We therefore find no merit to appellant’s second contention.

Ill

Appellant's final contention is that the trial court erred in not granting a motion for mistrial based on the fact that the trial judge presiding over a portion of the proceedings was biased because he had prior knowledge of the facts relating to appellant’s trial.

In the absence of a statute to the contrary, a judge is not disqualified to review his own acts. McConnell v. Goodwin, 189 Ala. 390, 66 So. 675 (1914).

Alabama law provides for disqualifications of a judge if he has an interest in the outcome, is related to any party within the fourth degree of consanguinity, or has been previously involved as counsel or attorney, without the consent of all parties involved. Ala.Code § 12-1-12 (1975).

As stated by the Alabama Supreme Court in the ease of In re Raines [Raines v. State], 294 Ala. 360, 317 So.2d 559 (1975), “pretrial involvement or knowledge on the part of the trial judge does not necessarily create an. unconstitutional risk or bias.” Id., at 366, 317 So.2d 559. The court went on to quote at length the case of Winthrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), which stated:

“Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence.” Id., 421 U.S. at 56, 95 S.Ct. at 1469.

The general rule in Alabama is that there is a presumption that a judge is qualified and unbiased and a person who alleges otherwise has the burden of proving that grounds for his allegation. Schillaci v. State, 347 So.2d 556 (Ala.Cr.App.), cert. denied, 347 So.2d 559 (Ala.1977).

The bias or prejudice which has to be shown before a judge is disqualified must be “personal” bias, and not “judicial” bias. Personal bias, as contrasted with judicial, is an attitude of extra-judicial origin, or one derived non coram judice. In re White, 53 Ala.App. 377, 300 So.2d 420 (1977). The fact that one of the parties before the court is known to and thought well of by the judge is not sufficient to show bias. Duncan v. Sherrill, 341 So.2d 946 (Ala.1977). Neither is the fact that the judge had previously sentenced the defendant’s partner in crime to the maximum sentence allowed and bemoaned the fact he could not impose a longer sentence sufficient to constitute proof of bias. Coleman v. State, 57 Ala.App. 75, 326 So.2d 140 (1976). Nor is bias proved simply because the trial judge who presided at the second trial of defendant had also presided at his first trial and heard evidence later found to be inadmissible by an appellate court. Walker v. State, 38 Ala.App. 204, 84 So.2d 383 (1955).

In the case before us, the judge with whom Mr. Lazenby discussed the situation did not preside over appellant’s entire trial, only a portion of it. That portion merely involved selection of the jury and rulings on motions made prior to the actual commencement of the trial. Nothing in the record indicates that there was any personal bias held by Judge Wright against the appellant which would disqualify him from presiding over this part of the trial.

The decision to grant a motion for mistrial is generally left to the discretion of the trial judge. The trial judge has heard what has transpired and has seen the scenario unfold, and is thus in a better position to determine whether a mistrial should be declared. Duncan v. City of Birmingham, 384 So.2d 1232 (Ala.Cr.App.1980). A motion for mistrial implies a miscarriage of justice; therefore, it should only be granted where it is clear that justice cannot be afforded. Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978).

We have reviewed the evidence before us and have found that the trial judge did not abuse his discretion in this matter. The appellant did not prove any bias of Judge Wright and thus it was not error for the trial judge to deny appellant’s motion for a mistrial.

We have reviewed the entire record and find no reversible error therein. In the interest of brevity, we refrain from further discussion of this case. The conviction of the trial court is therefore due to be affirmed.

The foregoing opinion was prepared by Honorable JOSEPH A. COLQUITT, Circuit Judge, temporarily on duty on the Court of Criminal Appeals pursuant to § 12-2-30(b)(6), Code of Alabama 1975. The Court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.