text:
    Eva Mae HALL v. TELEDYNE FIRTH STERLING.
    Civ. 4100.
    Court of Civil Appeals of Alabama.
    April 4, 1984.
    Fred B. Simpson and Fulton S. Hamilton, Huntsville, for appellant.
    David C. Craddock and Donna S. Pate of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee sought workmen’s compensation benefits alleging that she suffered from an occupational disease. The trial court denied benefits and the employee through able counsel now appeals.

The employee contends on appeal that the evidence does not support the trial court’s conclusion that her disability is not work related. We find there is evidence to support the trial court’s actions and affirm.

In workmen’s compensation cases this court looks at the record only to determine if the findings of fact by the trial court are supported by any legal evidence and if the law has been properly applied to the facts. We will not consider the weight of the evidence. Craig v. Decatur Petroleum Haulers, Inc., 340 So.2d 1127 (Ala.Civ.App. 1976), cert. denied, 340 So.2d 1130 (Ala. 1977).

Keeping in mind our standard of review, the following is relevant:

The employee, a forty-nine-year-old female, was employed by Teledyne Firth Sterling (employer) at its manufacturing plant from November 1980 to August 1982. The employee operated a grinding machine used to grind cutting instruments. The grinding or manufacturing process involved the use of coolants and tungsten carbide. During the process a mist or dust was generated which would wet or settle on the employee.

After working at Teledyne some nine or ten months, the employee began experiencing trouble in breathing and other symptoms which she alleges were caused by exposure to the coolant and dust at work. The employee sought compensation bener fits.

After considering the evidence, the trial court determined that although the employee had “a definite disability and resulting loss of ability to earn wages because of her health and physical condition, she has failed to present sufficient evidence to convince the Court that such is related to her employment or the conditions under which she worked....” Accordingly, the trial court denied the employee compensation.

In order for the employee to recover under the occupational disease or the occupational pneumoconiosis sections of the Workmen’s Compensation Act, she must prove the disease arose out of and in the course of employment. Ala.Code §§ 25-5-110 and 25-5-140 (1975). An occupational disease is not compensable if it is not caused or aggravated by the nature of the employment. Dodson v. Atrax Division of Wallace-Murray Corp., 437 So.2d 1294 (Ala.Civ.App.1983).

In the present case there is evidence that the nature and symptoms of the employee’s affliction are inconsistent with the respiratory diseases caused by the inhalation of tungsten carbide dust. There is also evidence that the employee’s disease or ailment was caused by over thirty years of cigarette smoking.

We believe the following testimony from an apparently extremely qualified medical expert supports the finding that the employee’s condition is not work related.

“Q. Doctor, I know we have been around this a great deal, but if you could sum up for the Court why you think Ms. Hall does not have asthma or bronchitis that was caused by tungsten carbide exposure?
“A Yes, sir. We know with a high level of medical certainty what she has. She has chronic bronchitis with the usual wheezing or asthma features which go with that. There may be some emphysema. This is simply not the pattern of illness that results from tungsten carbide exposure under the circumstances of this patient, namely possible exposure for a year and then removal from exposure.
“And, indeed, her pattern of her disease, the nature of her disease is objectively confirmed by pulmonary function studies which show the typical obstructive features of chronic bronchitis with asthmatic features and fail to show the typical restrictive features that are the long-term sequelae or results of tungsten carbide exposure.
“In addition, the onset and course of her illness came on rather gradually after a year of possible exposure and remained about the same after leaving the job, neither better nor worse. That just doesn’t make good common sense to ascribe that to tungsten carbide.
“If there were at about the time she dates her symptoms a very heavy exposure, I would have expected her to have very severe and heavy symptoms then of an asthmatic nature which subsequently subsided, and that is not the history of this case.
“And, third, this patient’s onset and characteristics of her illness in every respect, history, physical examination and objective laboratory are absolutely typical of the second most common disabling condition in the entire work force ensured under Social Security, namely, chronic obstructive lung disease.
“Q. And in your opinion what is the cause of her chronic obstructive lung disease?
“A. Smoking is such an overwhelmingly important cause of this condition.”

As seen from the above, there is evidence to support the trial court’s finding that the employee did not establish that her condition was work related. This is true whether the employee sought to recover under § 25-5-110 or § 25-5-140, Ala.Code (1975).

We note in all fairness that had the trial court found that the employee’s affliction was compensable there is also some evidence to support such a determination. Be that as it may, as seen from the foregoing, under our standard of review we must affirm the trial court’s judgment.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Deranell TAYLOR v. STATE of Alabama.
    Civ. 4155.
    Court of Civil Appeals of Alabama.
    April 4, 1984.
    Joel Lee Williams, Troy, for appellant.
    Mary Lee Stapp and James E. Long, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

This is an appeal from a termination of custody of two minor children.

The Juvenile Court of Pike County awarded custody of two minor children to the Department of Pensions and Security of Pike County. The mother through able counsel appeals.

The dispositive issue as presented by the mother is whether the juvenile court had jurisdiction in this matter. We hold that the juvenile court did have jurisdiction, and thus, this case is due to be affirmed.

The relevant facts are as follows:

On November 2, 1983, the Pike County Department of Pensions and Security filed a petition with the juvenile court alleging the dependency of the mother’s two minor children. On November 3, 1983, the father filed for divorce in the Circuit Court of Pike County. On November 8, 1983, the circuit court awarded custody of the children to the mother pursuant to an agreement between the parents that was incorporated into the divorce decree.

The petition alleging dependency did not indicate that the immediate well-being and safety of the children was involved. The juvenile court also determined that an emergency situation did not exist. On November 28, 1983, the juvenile court awarded custody to the Department.

Although the general law is that once the circuit court has obtained jurisdiction over the custody of the child, that jurisdiction continues during the infancy of the child, Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970), there are exceptions. One exception is where there exists an emergency as to the immediate welfare of the child. Roberson v. McAliley, 387 So.2d 840 (Ala.Civ.App.1980). However, that exception does not apply here.

There is a rule of law applicable in this instance that “where two courts have equal and concurrent jurisdiction, the court that first commences the exercise of its jurisdiction in a matter has the preference and is not to be obstructed in the legitimate exercise of its powers by a court of coordinate jurisdiction.” Rush v. Simpson, 373 So.2d 1105, 1108 (Ala.Civ.App. 1979). The juvenile court has equitable powers in the area of child custody which are equal to the equitable powers of the circuit court in custody matters in divorce proceedings. Ala.Code § 12 — 16—2(f) (1975). Therefore, in this instance and under these facts, since the juvenile court assumed jurisdiction first on November 2, 1983, it had jurisdiction to determine dependency and award custody. We particularly note that the circuit court’s custody determination was based upon an agreement between the mother and father, and furthermore, there appears to be no question of the children’s dependency.

This case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


author: TYSON, Judge.

text:
    James Lee WASHINGTON v. STATE of Alabama.
    6 Div. 23.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.

      J. Dennis Bailey of Wiginton & Bailey, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James Lee Washington was charged by indictment with the murder of Nathaniel Walker, Jr., by “shooting him with a pistol” in violation of § 13A-6-2, Code of Alabama, 1975.

The jury found the appellant “guilty of murder as charged” and the trial court, following a habitual offender hearing, at which three convictions obtained in the Circuit Court of Jefferson County, Alabama, on October 27, 1980, for grand larceny, buying and receiving stolen property, and burglary and grand larceny were all placed in evidence, appellant was sentenced to life imprisonment without parole.

Emily Jones, the mother of the deceased, Nathaniel Walker, Jr., testified that her son was killed at Salter’s Barbecue on the night of October 8, 1980, and identified some photographs of his body and his automobile parked at the scene. She stated that her son was 19 years old at the time of his death and was employed at North American Van Lines in Birmingham. On cross-examination, she admitted that her son did occasionally drink “a beer or two”.

Dr. Bruce Alexander, a forensic pathologist who assisted the coroner’s office, testified he examined the body of Nathaniel Walker, Jr., on October 9, 1980, and the victim died “of a gunshot wound to the left chest and heart with resulting hemorrhage.” On cross-examination, the doctor stated that the blood alcohol content was .24%.

Reginald L. Rogers, a construction worker who was being held in the Jefferson County Jail on a robbery charge, testified that he was present at Salter’s Barbecue on the night Nathaniel Walker was shot. He stated that he saw the victim fall to the ground and the police drive up. He saw two black males running away, one of them wearing blue jeans, a dark colored shirt, and had on a baseball cap which he thought was yellow in color. He stated he later talked with Sergeant Bill Gautt at City Hall on the night of October 8 about 10:00 o’clock. Rogers related that he had overheard the victim, Nathaniel Walker, attempting to talk on the telephone and that he overheard him say to the black male wearing the baseball cap, “You put your own damn money in the phone.” He stated that later he saw the victim walk back toward his car and overheard Walker state, “Why are you walking up on me?” and the black male with the baseball cap on pulled out a pistol and fired. Then the black male and his companion ran off.

On cross-examination, Rogers stated the party who fired the shot at Walker was wearing a “red baseball cap” (R. 60), but he was unable to make an identification in court of the appellant or the other party who had approached the victim, Nathaniel Walker. On cross-examination, Rogers said that the victim did not have any weapon in his hand. Rogers also admitted that his own attorney and some assistants from the district attorney’s office had talked with him at the jail, but Rogers insisted that he could not recognize the party who fired the shot.

Claudia Hill testified that she was working at Salter’s Barbecue on the night of October 8, 1980. She positively identified the appellant, James Lee Washington, in court as being one of two black males that she observed near the telephone shortly after 8:00 o’clock p.m. She also stated that she knew the victim, Nathaniel Walker, Jr., and had seen him talking on the telephone. She further testified that the appellant was wearing a red baseball cap and a pair of blue jeans and she heard Washington tell Walker, the victim, “He wasn't scared of nobody that walked.”

Claudia Hill stated that she was preparing an order for a customer and that she next heard one shot and went outside and saw Nathaniel Walker lying on the ground and saw Washington running from the phone booth down 7th Avenue and that he was wearing a red baseball cap. She also identified her sister, Sylvia Carson, as another employee working at Salter’s Barbecue. She stated that she telephoned the police after the shooting.

Sylvia Carson, a sister of Claudia Hill, testified that on the night of October 8, 1980, she too was working at Salter’s Barbecue. Shortly after 8:00 o’clock in the evening, she testified that she saw two men come up and that one of them appeared to be “drunk or something” because he had “a syringe hanging out of his arm.” She testified the two men came from the direction of a “dope house” across the street. She said the taller of the two men was cursing and she overheard him say, “He wasn’t scared of nobody, and he would kill any m.f_” She noticed that he had a pistol. She said a few minutes later she saw him go near the telephone booth and a few moments later she heard a shot. She stated that she and her sister came outside and saw the victim, Nathaniel Walker, lying on the ground, and she called to her sister to call the police. She said that someone came and put a pillow under Walker’s head and that she saw the taller man who was wearing blue jeans and a baseball 'cap “run across the lot and down 7th Avenue.” and the shorter man disappeared. She said the police and ambulance came a few minutes later and that she only heard one shot and saw no weapon on the victim, Nathaniel Walker. She, however, was not able to recognize or identify the man whom she saw wearing the red baseball cap.

Birmingham Police Detective William T. Gautt, testified that he went to the crime scene on October 8, 1980, arriving shortly after the victim’s body had been removed. He stated that he interviewed Reginald Rogers and Claudia Hill that night. He stated that he later went to California, on August 12, 1981, and brought Washington back to Birmingham.

William Woods testified he lived at 1210 Apartment 8, 7th Avenue North in Birmingham. His home was two houses from Salter’s Barbecue. Sometime after 8:00 o’clock on the night of October 8, 1980, he heard a shot and saw two men running down the street and heard the taller man say, “Well, we got him,” but that he did not get a good look at either man and would not be able to identify either. He stated that the tall one had on a red baseball cap, a brown jacket and blue jeans. Woods stated that he walked over to Salter’s Barbecue and saw a black male lying on the ground and a few moments later saw the police and ambulance arrive and remove the victim.

The appellant made a motion to exclude and also a motion for judgment of acquittal because of the insufficiency of the State’s evidence. These motions were overruled.

The appellant presented no testimony at trial and following argument the trial court gave an extensive oral charge to which no exception was made except that counsel “objected to including the second count, recklessness.” (R. 173).

I

The appellant first argues that the trial court committed reversible error by allowing the State’s case to go to the jury, asserting that the evidence presented was insufficient to support a conviction. The appellant essentially bases his argument on the vagueness of the State’s witnesses’ testimony and the fact that much of the evidence is circumstantial in nature.

“In Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), an opinion authored by Judge Bowen of this court, we find the following authority pertinent to the issue before us:
‘In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
‘(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):’
‘Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words,
‘... the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.’ Williamson v. United States, 5 Cir.1966, 365 F.2d 12, 14. (Emphasis supplied)”

See, Hayes v. State, 395 So.2d 127 (Ala.Cr. App.1980), cert. denied, 395 So.2d 150 (Ala. 1981).

A verdict of guilty should only be set aside on grounds of insufficiency of evidence when, after allowing all reasonable presumptions as to its correctness, the preponderance of evidence against the verdict is so clear as to convince this court that it was wrong and unjust. Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976). Williams v. State, 420 So.2d 819 (Ala.Cr.App.1982).

Here, the State presented the testimony of one witness who positively identified the appellant at the crime scene, cursing and talking to the victim near the telephone booth, shortly before the shooting. Three other witnesses stated that they saw a person wearing clothing which resembled that worn by the appellant on the night in question, running from the crime scene shortly after the shooting, though they were unable to make a positive identification in court. Under these circumstances, we are of the opinion that the trial judge correctly overruled appellant’s motion and allowed this case to go to the jury.

II

Appellant refers to the closing argument of the district attorney and states that the trial court improperly allowed prejudicial argument. Record 157-160 is as follows:

“(Whereupon, Mr. Mahon then addressed the jury in closing arguments, at which time the following occurred:)
“MR. MAHON: Not because somebody decides, well, this may not be the airtight case that some of them are. Not because some prosecutor says, well, I have got to make a deal, I have got to plea bargain. I am not going to do that in this case, this case is serious.
“MR. MILLER: Objection, Your Hon- or.
“THE COURT: Let’s steer away from plea bargaining.
“MR. MAHON: I submit to you it is not our fault for having to bring it to you two years later, because the defendant decided that Birmingham was not a good place for him to be any more.
“MR. MILLER: Objection, Your Honor.
“MR. MAHON: He went to California.
“THE COURT: Overruled.
“MR. MAHON: We can’t change what Reginald Rogers decided to say. But, you can guess who he is, a convicted robber, who happened to share the same accomodations.
“MR. MILLER: Your Honor, I am going to object to that—
“MR. MAHON: The evidence is that.
“MR. MILLER: The evidence has not been shown that they stayed in the jail—
“THE COURT: Well, there were certain things said outside the presence of the jury, Steve. And I will ask you to segregate those from what come in before the jury, in your own mind as you draw your inferences.
“MR. MAHON: All right.
“(Whereupon, Mr. Mahon concluded his closing argument at which time the following occurred:)
“MR. MILLER: Your Honor, at this time we would like to make a motion for a mistrial based on the statement made by the prosecutor that there was some type of plea bargaining in this case. And based on that, it would be highly prejudicial in that there has been no plea bargaining in this case whatsoever before the jury—
“THE COURT: I think that in effect is what he said, Vic, this was not a case of plea bargaining. Am I correct?
“MR. MAHON: That is correct.
“MR. MILLER: Well, he indicated, Judge, this is not a case that he would plea bargain in, in that — you know, with the inference that the defense in this case has attempted to make some type of plea of guilty, when that has not been the case.
“THE COURT: Yes. Well, I did sustain your objection in effect and ask Steve to steer away. I will let you respond in kind, if you wish, in your argument. I will deny your motion for a mistrial.-
“MR. MILLER: Okay.
“THE COURT: But, if you wish to respond, I would—
“MR. MILLER: We would like to have that area opened up in which we can respond to clear that aspect up.
“THE COURT: All right, sir.
“MR. MILLER: We wouldn’t want the jury to go in there thinking we have attempted—
“THE COURT: Well, I think your speaking objection is probably very effective, but if you wish to further respond, I will let you do it.
“MR. MILLER: All right. Thank you, Judge.
“THE COURT: All right. Mr. Bailey.”

In Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980), Judge Bookout noted:

“A trial court’s ruling on a motion for a mistrial is reviewable on appeal. Sten-nett v. State, Ala., 340 So.2d 65 (1976). However, such a motion is addressed to the sound discretion of the trial judge, and his ruling will not be reversed in the absence of a clear showing of abuse of discretion. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Heard v. State, Ala.Cr.App., 351 So.2d 686 (1977).”

In the instant case, we find instructions from the trial judge as noted in the above colloquy concerning the argument made by the district attorney. Further, during the oral charge of the court, the trial judge explained that arguments of counsel should be viewed in the heat of debate and from their impressions of the evidence. Counsel may argue matters of legitimate inference and thereby treat the evidence presented in his own way. Mathis v. State, 414 So.2d 151 (Ala.Cr.App. 1982), Bailey v. State, 375 So.2d 1278 (Ala. Cr.App.1979), cert. denied, 375 So.2d 1284 (Ala.1979). No firm legal standards by which the alleged prejudicial qualities of a proper argument by a prosecutor during trial can be gauged. Each case must be reviewed on its own merits. Authorities cited. Here, we believe, the trial judge’s instructions to have correctly admonished the jury concerning any improprieties and we cannot ascribe error to the record here presented. Lamar v. State, 356 So.2d 680 (Ala.Cr.App.1977), Bailey, supra.

Ill

Appellant’s counsel next asserts that the trial court erred in its charge to the jury by referring to a “second count of recklessness” when there was only one count in the indictment.

Counsel is correct that the indictment in the instant cause charges murder in one count. At the conclusion of the trial court’s oral charge, counsel made the following comment: (R. 173)

“MR. MILLER: May it please the Court, the defendant in this case is charged with a one count indictment. I would object to including the second count, recklessness.
“THE COURT: So noted.
“MR. MILLER: Other than that, we accept the charge.
“THE COURT: Very good. All right.”

We are of the opinion that the objection above noted is insufficient to preserve any alleged error in the oral charge of the court for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed, 414 So.2d 993 (Ala.1982). Such a fragmentary objection as above noted is insufficient to preserve the error in this cause. Where, as here, counsel asserts the oral charge is not as full and instructive as defendant’s counsel desires, his remedy is to tender written charges which elucidate and explain the defendant’s theory of the case. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955), Winstead v. State, 53 Ala.App. 222, 298 So.2d 642, cert. denied, 292 Ala. 761, 298 So.2d 646 (1974). Here, no such written instructions are tendered for the trial court or are present in this record.

IV

Finally, appellant asserts that the appellant was denied due process and equal protection of law in that being sentenced as a habitual offender constituted cruel and unusual punishment.

This contention was rejected by this court in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1980).

Moreover, the appellant’s argument that the three prior convictions which were all had on the same date should be treated as one conviction for habitual offender purposes, rather than three, has also been rejected expressly by this court in Seritt v. State, 401 So.2d 248 (Ala.Cr.App.1981), cert. denied, 401 So.2d 251 (Ala.1981) and Bates v. State, 405 So.2d 1334 (Ala.Cr.App.1981), cert. denied, 405 So.2d 1339 (Ala.1981).

We have carefully examined this record and find same to be free of error. The judgment appealed from is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte James Lee WASHINGTON. (Re: James Lee Washington v. State of Alabama).
    82-995.
    Supreme Court of Alabama.
    March 9, 1984.

      J. Dennis Bailey, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for respondent.
   TORBERT, Chief Justice.

Defendant James Lee Washington was indicted on a one-count indictment charging that he intentionally murdered Nathaniel Walker. Washington was convicted of murder in the Circuit Court of Jefferson County, and the conviction was affirmed by the Court of Criminal Appeals, 448 So.2d 409.

During the trial court’s oral charge, the judge gave a lengthy charge as to the definition of “recklessness” and told the jury they could convict Washington of murder if they found that he acted “recklessly.” The one-count indictment, however, only alleged that Washington acted “intentionally” in causing the death of the victim. The pertinent part of the oral charge was:

“Now, after hearing the evidence, ladies and gentlemen, I am going to be talking with you shortly about homicide, the killing of a person. And we will be talking about the intent route, which is articulated here in this paper, and then we will be talking about another route or vehicle, if you will, that leads into murder. That is, reckless conduct — there is more to it than that, but you won’t hear about intent, you will hear about recklessness.
“Now, ladies and gentlemen, a word about murder. Some of you heard me talk about murder before, because you were with us earlier this week. In our relatively new criminal code, effective January, 1980, one of the things that the code did, the new criminal code did, ladies and gentlemen, was abolish the degrees of murder, which perhaps you used to hear about. In the State of Alabama there are no degrees of murder any more. You won’t hear me talking about degrees of murder.
“Let’s take a hypothetical person, and I will tell you what he has to do in order to commit murder in this state. We are not talking about these facts or Mr. Washington, certainly. A person does commit the crime of murder, ladies and gentlemen, if either of the following occur: And we will call them A or B or 1 or 2. Under the first hypothetical, he commits the crime of murder if he intentionally causes the death of another person. Very simple, he intentionally causes the death of another person. Intent is the key word, I think. Or, a person commits the crime of murder in this state, ladies and gentlemen, if under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person and thereby through his conduct so causes the death of another person.
“So, in my judgment, those are the two definitions of murder, or two routes of murder under the facts we have heard. There are other ways that a person could commit murder in this state, but they would not apply here.
“So, to sustain the charge of murder in this case, ladies and gentlemen, the State by the evidence must prove beyond a reasonable doubt each of the following elements.
“Under A, first route — well, first, under either route, there is a very perfunctory question of whether or not Nathaniel Walker, Jr. is deceased. Maybe I shouldn’t venture an opinion, but I don’t think there is any contention that he is not deceased. But, in any event you must first find that he is deceased, that he is dead.
“Secondly, that the defendant James Lee Washington caused the death of Nathaniel Walker, Jr. That is, that Nathaniel Walker, Jr. dies as a result of a conduct or activities engaged in by the defendant James Lee Washington, the shooting of Nathaniel Walker, Jr. with a pistol.
“You must believe that James Lee Washington was the agent or the actor in committing the crime and pulled the trigger, and that he so caused the death of Nathaniel Walker, Jr. And that he did so intentionally. That is, that it was his purpose to cause Mr. Walker’s death.
“Or, go back to the predicate. To sustain the charge of murder in this case, the State by the evidence must prove beyond a reasonable doubt each of these following elements. That under circumstances manifesting extreme indifference to human life, that the defendant James Lee Washington acted recklessly — as I will define it in a moment, acted recklessly in engaging in a course of conduct which created a grave risk of death to Mr. Walker, and which in fact did cause his death.”

At the conclusion of the oral charge the following exchange occurred:

“MR. MILLER: May it please the Court, the defendant in this case is charged with a one count indictment. I would object to including the second count, recklessness.
“THE COURT: So noted.
“MR. MILLER: Other than that, we accept the charge.
“THE COURT: Very good. All right.”

The Court of Criminal Appeals held that the objection failed to preserve the alleged error as it was fragmentary and that, “Where, as here, counsel asserts the oral charge is not as full and instructive as defendant’s counsel desires, his remedy is to tender written charges which elucidate and explain the defendant’s theory of the case.” Washington v. State, 448 So.2d 398 (Ala. Cr.App.1983). We disagree.

In order to preserve alleged error in the trial court’s oral instructions to the jury, the objection must be made prior to the jury’s retirement for deliberation, Johnson v. State, 421 So.2d 1306 (Ala.Cr. App.1982), but it need not be made in their presence. A.R.Crim.P., Temp.Rule 14. The objection must be specific enough to point out the alleged error so as to allow the judge to correct the error. Crumpton v. State, 402 So.2d 1081 (Ala.Cr.App.1981). Defendant’s counsel did object prior to the jury’s retirement for deliberation. The objection was to the oral instruction that defendant could be found guilty if under circumstances manifesting extreme indifference to human life he recklessly caused the death of the victim, when the indictment alleged only that the defendant acted intentionally. The objection by the defendant pointed out that the indictment only had one count, intentional murder, and he objected to the inclusion of a reference to recklessness. We fail to see how the trial court could not have been put on notice as to -\yhat the alleged error was. The holding of the Court of Criminal Appeals that petitioner’s remedy is to tender written charges which elucidate and explain the defendant’s theory of the case confuses a situation where the objection is to the court’s refusal or omission to charge on a particular subject, and the situation — like that in this case — where the objection is to what the trial court did say. Passmore v. State, 47 Ala.App. 189, 252 So.2d 115 (Ala. Cr.App.1971). In the latter situation only a specific objection is required. Hall v. State, 375 So.2d 536 (Ala.Cr.App.1979).

Having concluded that the defendant did preserve the alleged error, we must determine whether the oral charge constituted a fatal variance from the indictment. A defendant is constitutionally entitled to be informed of the nature and the cause of the accusation against him. U.S. Const. amend. VI; Ala. Const, art. I, § 6. The function of the indictment is to inform the accused of the crime with which he is charged, so that he may prepare a defense if one is available, Ex Parte Hightower, 443 So.2d 1272 (Ala.1983); City of Montgomery v. Collins, 355 So.2d 1111 (Ala. 1978). The person accused of a crime is required at trial to answer only the specific charge contained in the indictment. Geeter v. State, 35 Ala.App. 207, 45 So.2d 167 (1950).

In Marsh v. State, 418 So.2d 191 (Ala.Cr. App.1982), a similar case, the Court of Criminal Appeals decided that the giving of the charge on reckless murder did not constitute a fatal variance. That court stated that “[t]he trial court was obligated to charge on the entire statute should the proof so warrant_” Id. at 193. Apparently, the Court of Criminal Appeals felt that the inclusion in the indictment of the code number of the statute alleged to have been violated, § 13A-6-2, was sufficient notice to the defendant that he was charged with violation of any part of the statutory provision.

Our holding in Ex Parte Hightower, supra, necessarily rejects that conclusion. In Hightower the defendant was charged with “the crime of sexual misconduct in that the said William Edward Hightower, a male, did engage in sexual intercourse with Vir-gilyn Williams, a female, without her consent in violation of § 13A-6-65 of the Code of Alabama_” We concluded that because the proof showed that he obtained her consent by artifice, there was a fatal variance between the solicitor’s complaint and the proof. The inclusion of the code section number in the solicitor’s complaint must not have been sufficient to put the defendant on notice that he was charged with violation of any provable part of the statutory provision. If this was true in Hightower, where the “without her consent” and “consent obtained by artifice” alternatives are contained within the same subsection of § 13A-6-65, then it must also be true in this case, where the intentional murder and reckless murder alternatives are contained in different subsections of § 13A-6-2.

We recognize that it has long been the law that a person indicted for a specific offense can be convicted of a lesser included offense. Code 1975, § 13A-1-9; cf. Chavers v. State, 361 So.2d 1106 (Ala. 1978), on remand, 361 So.2d 1109 (Ala.Cr. App.1978). This is true because a lesser included offense is generally defined as an offense the elements of which must necessarily be proven in order to convict for the specific higher offense. Mayes v. State, 350 So.2d 339 (Ala.Cr.App.1977); Payne v. State, 391 So.2d 140 (Ala.Cr.App.1980), writ denied, 391 So.2d 146 (Ala.1980). Therefore, the defendant is on notice as to all the elements of the included offense that he must defend against.

We must determine, therefore, whether the offense specified in Code 1975, § 13A-6-2(a)(2), is an offense included within the offense specified in § 13A-6-2(a)(1). Code 1975, § 13A-6-2, in pertinent part, provides:

“(a) A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person; or
“(2) Under circumstances manifesting extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to a person other than himself, and thereby causes the death of another person .... ”

Code 1975, § 13A-1-9, sets out the criteria for deciding what are included offenses:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.
“(b) The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.” (Acts 1977, No. 607, p. 812, § 126.)

The difference between homicide by reckless conduct manifesting extreme indifference to human life, sometimes referred to as “universal malice murder,” and “purposeful” or “knowing murder” was set forth in Northington v. State, 413 So.2d 1169, 1170 (Ala.Cr.App.1981), which stated:

“Reckless homicide manifesting extreme indifference to human life (13A-6-2(a)(2)) must be distinguished from purposeful or knowing murder (13A-6-2(a)(1)). See American Law Institute, Model Penal Code and Commentaries, Part II, Section 210.2 (1980). Under whatever name, the doctrine of universal malice, depraved heart murder, or reckless homicide manifesting extreme indifference to human life is intended to embrace those cases where a person has no deliberate intent to kill or injure any particular individual. Napier v. State, 357 So.2d 1001, 1007 (Ala.Cr.App.1977), reversed on other grounds, 357 So.2d 1011 (Ala.1978). ‘The element of “extreme indifference to human life,” by definition, does not address itself to the life of the victim, but to human life generally.’ People By And Through Russel v. District Court For Fourth Judicial District, 185 Colo. 78, 521 P.2d 1254, 1256 (1974).”

See also McCormack v. State, 431 So.2d 1340 (Ala.1983) (where this Court adopted the Court of Criminal Appeals’ interpretation).

As pointed out, there are several differences between intentional murder, § 13A-6-2(a)(l), and reckless murder, § 13A-6-2(a)(2). One is that the kind of culpability differs in that § 13A-6-2(a)(l) requires intentional conduct and § 13A-6-2(a)(2) requires reckless conduct. Under § 13A-1-9(a)(4), reckless murder could be considered an included offense of intentional murder, the indicted offense, if it differed from the indicted offense only because it required a lesser kind of culpability. However, there is another difference. If only a lesser type of culpability is shown, recklessness, the offense is manslaughter. Code 1975, § 13A-6-3(a)(l). Section 13A-6-2(a)(2) must require something more. Section 13A-6-2(a)(2) requires a showing that the defendant’s conduct was directed at human life in general as opposed to a particular individual. This additional difference between the offense he was indicted for, intentional murder, and universal malice murder precludes the latter from being an included offense, since it can be established only by a showing of facts not required in order to be convicted of intentional murder under § 13A-6-2(a)(l).

We conclude that the trial court erred in giving an instruction on “universal malice” murder. Defendant has a constitutional right to be informed of the charges against him. U.S. Const, amend VI; Ala. Const., art. I § 6. Therefore, the judgment of the Court of Criminal Appeals is reversed, and this cause is remanded to that court for entry of an order not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

      . The indictment in Marsh charged that the defendant "did intentionally cause the death of another person, Hubert Belt, by shooting him with a gun, in violation of Section 13A-6-2 of the Code of Alabama.” 418 So.2d at 192.


text:
    James Lee WASHINGTON v. STATE of Alabama.
    6 Div. 23.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
   TYSON, Judge.

Reversed and Remanded for a new trial on authority of James Lee Washington, 448 So.2d 404 (Ala.1984).


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Lewis L. GANNAWAY v. STATE.
    7 Div. 944.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.

      Donald W. Stewart, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty on a trial under an indictment that charged in pertinent part:

“Lewis L. Gannaway ... did knowingly and unlawfully possess cannabis, a controlled substance, in excess of one kilogram or 2.2 pounds, to-wit: 3,235.46 grams, contrary to and in violation of the Alabama Uniform Controlled Substance Act, in violation of Section 20-2-80 of the Code of Alabama.”

In addition to the fine of $25,000.00 assessed by the jury by its verdict, the trial court fixed defendant’s punishment at imprisonment for six years.

Code of Alabama 1975, § 20-2-80 provides:

“Except as authorized in chapter 2, Title 20:
“(1) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as ‘trafficking in cannabis.’ If the quantity of cannabis involved;
“a. is in excess of one kilo or 2.2 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.”

The first of two issues presented by appellant is thus stated in appellant’s brief:

“Whether the overruling of appellant’s motion to suppress based on the failure of the officers to comply with the requisites of the knock and announce statute while executing the search warrant herein was reversible error.”

“Ala.Code §§ 15-5-9, 28-1-2 (1975); U.S. Const. amends. IV, V, XIV; Ala. Const. Art. I, § 5; Daniels v. State, 391 So.2d 1021 (Ala.1980); Reynolds v. State, 46 Ala.App. 77, 238 So.2d 557 (1970).”

By a profound discussion and thorough consideration of numerous pertinent authorities, the Alabama Supreme Court in the cited opinion of Daniels v. State, per Justice Beatty, paved the way for a correct decision of the first issue presented by appellant in the instant case. In Daniels v. State and in the instant case, Code 1975, § 15-5-9, was and is the focal point of the applicable law, which provides:

“To execute a search warrant, an officer may break open any door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance.”

Clearly applicable to the evidence in the instant case of the circumstances of the execution of the search warrant is the following statement in Daniels v. State, at 391 So.2d 1023:

“... In executing a search warrant, circumstances may exist which justify an unannounced and immediate entry. See, e.g., United States v. Singleton, 439 F.2d 381 (3rd Cir.1971); United States v. Garcia, 437 F.2d 85 (5th Cir.1971); Gilbert v. United States, 366 F.2d 923 (9th Cir.1966); see generally, Annot., 21 A.L. R.Fed. 820 (1974). Likewise, exigencies may justify a forcible entry after waiting only a brief time after announcement. See, e.g., United States v. Allende, 486 F.2d 1351 (9th Cir.1973); United States v. Cruz, 265 F.Supp. 15 (W.D.Tex.1967); United States v. Poppit, 227 F.Supp. 73 (D.Del.1964). Therefore, what constitutes a sufficient compliance with the announcement statute is necessarily dependent upon the peculiar circumstances confronting the executing officer. Laffitte v. State, 370 So.2d 1108 (Ala.Cr. App.1979)....”

Evidence bearing on the question of the validity of the execution of the search warrant was presented in three separate phases of the case, i.e., (1) on the hearing of the motion to suppress the evidence obtained by the search, (2) evidence presented after the trial of the ease commenced but out of the presence of the jury, and (3) evidence presented in the presence of the jury. As to (1), the evidence consisted of the testimo--ny of Mrs. Gannaway, defendant’s wife, and Officer Michael Hembree of the Anni-ston Police Department. As to (2), the witnesses named as to (1) and the defendant testified. As to (3), the witnesses were Deputy John Alexander of the Calhoun County Sheriffs Department, Agent Don Walden of the Alabama Bureau of Investigation, Narcotics Div., and Sgt. Dryden of the Anniston Police Department.

There was some difference between the testimony of Mr. and Mrs. Gannaway and the testimony of the officers as to the circumstances immediately preceding the execution of the search warrant, but there was little, if any, essential difference. The undisputed evidence shows that the heretofore named law enforcement officers converged on the home of defendant, his wife and their two young children, while the four were at home at approximately 3:45 P.M. on June 12, 1981; that two of the officers went to the front entrance and two of them went to the rear door of the residence. Entry at the front entrance was made a few moments before the rear door was entered. There seems to be no dispute as to the validity of the entrance into the rear door. Mrs. Gannaway opened that door for the officers to enter, and they did so. The issue between the parties is as to the entrance into the front part of the house by Deputy Alexander and Officer Hembree. The residence was a modest frame building with a small screened-in front porch with space therein for about two chairs, which were on the porch at the time. There were concrete block steps from the front yard to the screen door, which opened outwardly and had an outside knob. The screen door was closed at the time the officers arrived. The wooden door into the living room of the house was open. When the officers arrived at the front of the house, two children were in the screened-in porch. Upon their being asked where their father was, “One of them said something about he was in the house; and one of them, I believe, went back into the living room.” The following is found in the testimony of Officer Hembree:

“Q. And then what happened?
“A. It was just about the same time that we could see him [defendant] coming across the. living room to the threshold or the front door.
“Q. How far was he when you first saw him from you?
“A. It was, I guess, maybe five or six feet across the porch and then maybe ten feet on in the living room when we saw him.
“Q. And what direction did he proceed there in the living room?
“A. He was coming from the rear of the house, which was back toward the bathroom and kitchen area. He came across the living room to the front door. “Q. Now, when you saw the children there on the front porch did you knock at that time?
“A. No, sir; it was already somebody there to talk to.
“Q. Now, when you saw Mr. Gannaway approaching the threshold, what happened then?
“A. We stepped up on the porch, met him at the threshold, and Deputy Alexander gave him a copy of the search warrant, and stated that we had a search warrant for his residence.
“Q. Did you identify yourselves at any time?
“A. I displayed my badge and identification.”

In Daniels v. State, supra, the Alabama Supreme Court upheld the action of the officers in entering the residence at which appellant resided and serving a search warrant upon him. In many respects, the circumstances were similar to those in the instant case. In both cases, two officers went to the front door and two to the rear. In both cases, the complaint of defendant was as to the entry into the front door. In the cited case, no screen door or screened porch was involved. According to the undisputed evidence therein by the officer effectuating the entry into the front door, he “knocked on the front door approximately four or five times and received no response” and then he “announced himself as a deputy sheriff ... with a search warrant for the residence.” No one answered the door, and the officer, “having heard movement within the house ... hit the door with his shoulder and forced his way in.” According to the undisputed testimony of the officer, “Approximately two or three minutes elapsed from the time he knocked on the door until the time he made his forcible entry.” In the fact that the officer in Daniels v. State, supra, actually knocked on the door, the case was more favorable to the State than the instant case. However, in several other respects, the instant case is more favorable to the State than the Daniels case. There was considerable force exercised by the officer in the Daniels case; there was practically no force exercised by the officer in the instant case. The screen door presented little opportunity for the officers to so knock thereon as to be heard by anyone in the house itself, unless the officer had used the screen door as a knocker by repeatedly opening it and slamming it, which would have been highly unbecoming, frightening to the children and alarming to the neighborhood.

We find much more in Daniels v. State, supra, to uphold the execution of the search warrant than to vitiate it, both in the opinion itself and in the numerous authorities cited therein. In most of said authorities, execution of the search warrant there involved was upheld. In general, we are persuaded that the conduct of the officers in going onto the porch and into the house conformed to legal requirements. Actually, until they had served the warrant on the defendant, they did no more and no less than what would have been expected of general business or social visitors. Even if their conduct can be correctly described as expeditious, it clearly was not precipitate or provocative. Specifically, we conclude that they did not violate Section 15-5-9 of Alabama Code 1975.

The second issue presented by appellant, by which he asserts that the trial court should not have submitted the case to the jury has two prongs:

“(1) Ala.Code § 20-2-80 violates the mandate of separation of powers contained in Ala Const. Art. Ill, § 43 (1901) and (2) that ‘it was the State’s burden to prove that the weight of the contraband minus the prohibited matter was in excess of the statutory threshold of 2.2 pounds.’ ”

Both of these contentions have been recently decided adversely to appellant in Dickerson v. State, Ala.Cr.App., 414 So.2d 998 (1982).

As to the contention that the particular statute violates the doctrine of separation of powers expressed in Article III, § 43 of the Alabama Constitution of 1901, it was held, after a thorough consideration of the question and the citation of abundant authorities as to it:

“Consequently, we find § 20-2-80(1) not unconstitutionally vague or indefinite as to its sentencing scheme or violative of the separation of powers doctrine of § 43, supra.” Dickerson v. State, supra, at 414 So.2d 1005.

In urging that the evidence in the instant case does not show that the marijuana found in the possession of defendant was in excess of 2.2 pounds, in that the evidence disclosed that the amount included “stems, stalks and seeds,” appellant challenges the applicability here of that part of the opinion in Dickerson v. State, supra, in which, in reliance upon numerous authorities, it is stated:

“It is well established that the burden is upon the appellant to establish and bring himself within any exclusion which is found not in the enacting clause defining a crime but rather in a subsequent clause or statute. Specifically, he must establish that the marihuana seized from his residence contained excludable matter falling within the definition of such under § 20-2-2(15)....”

Without agreeing with appellant and without entering into an extensive discussion of the question which appellant’s brief on the point would require, we note that, irrespective of the party upon whom the burden was in the particular respect under consideration, there was ample evidence that the “stems, stalks and seeds” of the marijuana possessed by defendant were not of sufficient weight to have prevented the total weight of the particular controlled substance from exceeding 2.2 pounds. This is demonstrated by part of the testimony of Lt. Richard Townsley, who was in charge of the Police Department Crime Laboratory, while being cross-examined by defendant’s attorney out of the presence of the jury, in pertinent part as follows:

“Q. I’m asking you, though, if it is not a fact that those particular elements of the plant, which were in this plant material when you weighed it, do not contain the TCH or—
“A. THC.
“Q. THC?
“A. Stems, stalks and seeds ungerminated would not contain THC, to my knowledge.
“Q. You didn’t perform any test on this matter in this material to determine, say the seeds, for instance whether they had any capability to germinate?
“A. No, sir. There was no need to; there was enough of the other material. “Q. Just respond to the question. You didn’t perform any test on that?
“A. No, sir.”

In concluding our consideration of appellant’s contention that the evidence failed to show that defendant possessed “cannabis, a controlled substance, in excess of one kilogram or 2.2 pounds, to-wit: 3,234.46 grams,” we note that it was only necessary for the weight of the cannabis to have been approximately one-third of the total weight of the material that was seized and weighed. Furthermore, it should be noted that, apparently with the approval of both parties, the court orally charged the jury on the lesser included offense of possession of marijuana and gave the jury three forms of verdict, one finding the defendant not guilty, one finding defendant guilty of trafficking in cannabis and one finding him guilty of possession of marijuana.

No issue is presented that requires a reversal of the judgment of the trial court, which should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice. MADDOX, Justice

text:
    Ex parte Lewis L. GANNAWAY. (Re Lewis L. Gannaway v. State of Alabama).
    82-980.
    Supreme Court of Alabama.
    Feb. 10, 1984.
    Rehearing Denied March 9, 1984.

      Frances Heidt, John C. Falkenberry, and Donald W. Stewart of Stewart, Falkenber-ry & Whatley, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

Certiorari was granted to ascertain whether the Court of Criminal Appeals, 448 So.2d 409, has properly applied the provisions of Code of 1975, § 15-5-9, and our decision in Daniels v. State, 391 So.2d 1021 (Ala.1980), to the facts of this case. We reverse and remand.

In his petition for writ of certiorari, the petitioner presented two issues, the first being:

“Whether the overruling of appellant’s motion to suppress based on the failure of the officers to comply with the requisites of the knock and announce statute while executing the search warrant herein was reversible error.”

In addition to the facts recited in the opinion below, we have before us additional facts properly presented under Rule 39(k), A.R.A.P., in petitioner’s application for rehearing below.

It is clear from the record that the officers who entered the petitioner’s home through the front screen door neither “knocked” nor “announced.” The State now defends the entry on the ground that the officers had “talked to the two children” before entering, and in any case, “literal compliance with § 15-5-9 has never been required.” In either event, it is urged, the procedure used to permit entry of the petitioner’s premises complied with Daniels v. State, supra, recognized by the court below as the focal point of the applicable law. It is unnecessary to repeat here the injunctions of the federal courts on the requirement of prior notice of authority and purpose on the part of law enforcement authorities when making forceful, as opposed to permissive, entry into private homes. Nor is it necessary to discuss at length the exceptions which, in certain circumstances, may exist to justify an unannounced and immediate entry. That aspect of this area of search and seizure law was sufficiently explored in Daniels, supra. It should be recalled that Daniels, itself, involved not an unannounced entry, but an entry which occurred two or three minutes after the officer had knocked on the door and announced his authority, knowing that someone was inside the residence. Here, there was never any attempt by the officers to announce their authority and purpose. Indeed, Officer Hembree testified that he did not knock because there “was already somebody there to talk to.” Perhaps this was, as the court below observed, consistent with the conduct of business or social visitors. That, however, is not the test to be applied in these instances. § 15-5-9, supra.

Nor does the record demonstrate any necessity for an unannounced entry. The officers saw the defendant approaching the screened porch from the living room. There was no evidence that any announcement or delay on their part would alert him or place them in peril, cf. United States v. Mendez, 437 F.2d 85 (5th Cir.1971); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966), or that the petitioner knew their identity and purpose, or that the officers entertained a reasonable belief that any announcement of purpose would lead to destruction of the evidence, United States v. Singleton, 439 F.2d 381 (3d Cir.1971), or that their announcement would have been met with a refusal. Cf. United States v. Allende, 486 F.2d 1351 (9th Cir.1973) (after announcement officers heard “scampering” sounds). What happened here was that the officers asked some children who were inside the screened porch the whereabouts of their father. Upon being told that he was in the house, the officers, seeing the petitioner inside at the time, entered the residence and, displaying identification, handed the petitioner a copy of the search warrant. Those circumstances do not justify this entry through the front screen door.

The State, moreover, does not contend that there was any permissive entry by police officers through the back door. The record discloses that following Officer Hembree’s entry through the front door, Mrs. Gannaway unlocked the rear door to the house on the call of another officer who said, “You can unlock this door now.”

On the record, we find that the requirements of § 15-5-9 were not met and that, accordingly, it was error to overrule the petitioner’s motion to suppress the evidence seized in the search in question. Having so found, we find it is unnecessary to consider the other alleged error raised by the petitioner. Accordingly, the decision of the Court of Criminal Appeals must be, and it hereby is, reversed, and this cause is remanded to that court with directions to award the petitioner a new trial. It is so ordered.

REVERSED AND REMANDED WITH DIRECTIONS.

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

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

MADDOX, Justice

(dissenting).

Petitioner, pursuant to Rule 39(k), A.R. A.P., requested the Court of Criminal Appeals to add facts to its opinion, including these:

“On the afternoon of June 12, 1981, Lewis Gannaway was in the bathroom at his home, when his wife told him that she had just seen someone running up the driveway. Gannaway left the bathroom, which was at the rear of his home, and proceeded through a hall and through the kitchen into his living room.
“Appellant entered his living room at the same time Officer Hembree of the Anniston Police Department was entering the room from the opposite side of the room. The only other people in the room were Appellant’s two children, who were watching television at the time; his wife was in the kitchen. Appellant had never seen Hembree before, and recognized him only as a stranger dressed in civilian clothes. Because Officer Hem-bree entered the room simultaneously with Appellant, Appellant had no opportunity to elect whether or not to admit Hembree to the room. Hembree was already in the house by the time Appellant saw him because Hembree had not knocked prior to entering.”

According to petitioner’s own version of the facts, his wife “saw someone running up the driveway.” These facts, and other facts in the opinion of the Court of Criminal Appeals, in and of themselves, tend to support the reasonableness of the officer’s conduct on the occasion complained of. I believe the Court of Criminal Appeals correctly construed Daniels. I would affirm.

FAULKNER, ALMON and SHORES, JJ., concur.


author: SAM TAYLOR, Judge.

text:
    Lewis L. GANNAWAY v. STATE.
    7 Div. 944.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
   SAM TAYLOR, Judge.

In compliance with the direction of the Supreme Court of Alabama in Ex Parte Gannaway, 448 So.2d 413 (Ala.1984), the judgment of the trial court is reversed and the cause remanded with directions to award the appellant a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Tommy Edward PYLES v. STATE.
    4 Div. 36.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      Cary L. Dozier, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   GARDNER F. GOODWYN, Jr., Retired Circuit Judge.

The appellant, Tommy Edward Pyles, was indicted by a Pike County Grand Jury at its January 1982, term, charging that he “did knowingly sell, manufacture, deliver, or bring into this state, or was knowingly in actual or constructive possession of more than one kilo or 2.2 pounds of cannabis, in violation of 20-2-80 of the Code of Alabama.”

This section, as a part of Article 4A, became effective May 28, 1980, and defines the offense of trafficking in cannabis and sets the punishment therefor.

An arrest warrant was issued for appellant, and trial was held in the Circuit Court of Pike County, Alabama, before a jury, which returned a verdict of guilty as charged.

After a presentence hearing, the appellant was sentenced to a term of imprisonment of four years, but no fine was imposed.

The case of the State was based upon the testimony of an accomplice of the appellant, and the testimony of a police officer and an expert witness. The appellant called no witnesses in his defense.

The accomplice, Buster Griffin, testified, in substance, that he, his wife and sister, the appellant, and three other men left Pike County on September 4, 1981, in two automobiles — a blue colored Opel and a green colored Chevrolet station wagon — to go to Falls City, Nebraska, for the purpose of obtaining marijuana for later sale and distribution in Alabama.

They arrived in Falls City at approximately 5 p.m. the following day and checked into a motel. They purchased at a local grocery store a quantity of garbage bags and gloves for use in containing and picking the plant, which they harvested from 9 p.m. that evening to 3 a.m. the next morning in a wild field about three miles from town. They picked about nine bags that night, and the appellant actively participated in the operation. Further harvesting was interrupted by rain, and they left Falls City on Monday, September 7, for Maryville, Missouri, with the harvested bags. While in Falls City, the parties took several photographs of one another and their vehicles. (These were identified and introduced into evidence during the trial.)

In Maryville, they gathered more marijuana, bringing the total to seventeen bags totaling about 350 to 400 pounds.

On Wednesday, September 9, they returned to the home of the witness near Troy, Alabama, arriving about 4:30 or 5 a.m. on Thursday the 10th. They unloaded the two vehicles and carried the bags into his house. They turned on the front porch light to aid in unloading, and the appellant and the other men carried the bags into the house. The witness and his wife remained at their home and went to bed after the unloading. All the others, including the appellant, left the area, supposedly to go to their homes. Before separating, it was agreed that they would come back the next day about 1 p.m.

The witness further testified that the appellant did not live at the home of the witness and did not have any ownership interest in the house and was not present when the officers raided his home that same Thursday and seized the marijuana.

He further testified that on the trip back to Alabama the auto in which the appellant rode carried marijuana; and this was marijuana that they had harvested and brought back to Alabama and which was seized in the raid. He did not know whether the appellant returned to the house at 1 p.m. the next day because by then the witness was in jail.

The witness testified that he had pleaded guilty to the charge against him, but no one had promised him anything.

The next witness, Grady Reeves, testified in substance that he was Assistant Chief of Police of the Troy Police Department and a criminal investigator with the department. On September 10, 1981, at 4:47 a.m., he was a stakeout in a ditch on the roadside across from the residence of Buster Griffin. At that hour a blue Opel and a 1971 green Chevrolet station wagon pulled into the front yard of Griffin’s house. Several individuals got out of the vehicles and began to carry some large, green, plastic garbage bags into the residence. He recognized these individuals as appellant, Buster Griffin, who lived there, Michael Lewis, Ronnie Robert Smith, Tommy Mount, Liz Griffin, and Vera Griffin. He knew the appellant prior to this time and saw him carrying the bags — roughly ten to thirteen in number — into the house from the cars. The bags were filled with some type of bulky material, but at that time he could not see into the bags and did not know for an absolute positive fact that they contained marijuana, but it was his opinion that he had probable cause to believe that marijuana was in the bags.

After observing this he left his stakeout position and obtained a search warrant for the residence of Buster Griffin and returned on the same day with several other officers and conducted a search under the warrant. Seventeen large, plastic bags filled with marijuana were found in the house. Photographs and measurements were taken, and labels were affixed. Total weight of the bags was 420½ pounds. A sample from each bag was delivered to Joseph Saloome of the Enterprise State Crime Laboratory. The appellant was not present when the search was conducted.

Joseph Saloome testified as a qualified expert that the samples delivered to him were marijuana, the scientific name of which-is cannabis setiva, and it is a controlled substance of the Alabama Uniform Code.

As to the legality of the ruling allowing the marijuana to be admitted into evidence, the appellant was without standing under the Fourth Amendment to raise the question in the trial court of the legality of the search of Buster Griffin’s house and the seizure of the marijuana therein.

In order to raise this question, he had to show that he possessed a legitimate expectation of privacy from governmental invasion of the area that was searched. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). This he did not do. He did not live at the Griffin house, nor did he have any right, title, or interest therein. He was not present when the search was conducted, and he made no claim to any proprietary interest in the goods that were seized.

Under these facts, there was no error in denying the appellant’s motion to suppress the evidence and in overruling his objection to the admission into evidence of the seized goods. Collier v. State, 413 So.2d 396 (Ala.Cr.App.1981), aff'd, 413 So.2d 403 (Ala.1982); Davidson v. State, 48 Ala.App. 446, 265 So.2d 888 (1971), cert. denied, 289 Ala. 741, 265 So.2d 897 (1972).

Moreover, the search warrant was issued upon probable cause and was valid, as disclosed by the affidavit given by Officer Reeves in support of the warrant.

The affidavit was, in substance, that on September 5, 1981, Saturday, a confidential informant told the police department that Buster Griffin and others were en route to Nebraska to obtain a large quantity of marijuana to be brought back to Griffin’s house for storage until it could be sold. They were driving a green Chevrolet station wagon and a blue Opel. The individuals going were known users and dealers in marijuana, which had been observed inside Griffin’s house on several occasions. The trip had been discussed with the informant by these individuals.

The affidavit further stated that on the following day, September 6, 1981, the Narcotics Division of the Nebraska State Police informed the department that surveillance was being maintained in Falls City, Nebraska, of a blue Opel and a green Chevrolet station wagon of designated Alabama license tags. The occupants had bought at a local grocery store an unusually large quantity of plastic garbage bags and gloves. Marijuana grows wild in that area, and the common method of illicit operation is to pick it and pack it in such bags. Further information from the Narcotics Division was that the occupants had checked into a local motel under the name of Buster Griffin. Surveillance was maintained until 10:30 p.m., Monday. During this time, the vehicles were followed to local marijuana fields, and conversations were overheard in the motel rooms of the suspects as to how much marijuana had been gathered and of the odds against being “busted” on the return to Alabama. The suspects checked out of the motel at 10:30 a.m., Monday, and headed south. The affidavit further stated that a check of the license tags furnished by the Nebraska Narcotics Division revealed the station wagon was registered to Ronnie Smith, Troy, Alabama, and the Opel to Vera Griffin, Troy, Alabama.

The affiant, Officer Reeves, further stated in the affidavit that on surveillance of Griffin’s house, he observed at 4:47 a.m., Thursday, September 10, 1981, two vehicles, previously described, arrive at the house, and the occupants began to carry no less than twelve large, green plastic garbage bags into the house. The bags appeared to be filled with a bulky type material. The house was known to be the residence of Buster Griffin and his wife, both of whom were recognized among those who were carrying the bags into the house.

This affidavit, upon which the search warrant was issued, includes information from other law enforcement officers and the personal observations of the affiant himself, a police officer, and is sufficient as to reliability and specificity to establish probable cause. Davis v. State, 333 So.2d 168 (Ala.Cr.App.1976); Keller v. State, 54 Ala.App. 127, 305 So.2d 402 (1974).

The legality of the search warrant and the seizure thereunder is another ground, besides the lack of standing of the appellant to raise the issue, for upholding the trial court in overruling the appellant’s motion to suppress the evidence and the objection to the admission into evidence of the seized goods. Davis, supra; Keller, supra.

The appellant urges error in the overruling of his objection to the introduction of this affidavit into evidence, citing Loggins v. State, 52 Ala.App. 204, 290 So.2d 665 (1974).

But the appellant during cross examination of the affiant Reeves brought out portions of the affidavit before the jury. This was done by asking the witness several questions concerning specific statements—and the absence of statements—in the affidavit. This action authorized the State to introduce the affidavit in its entirety-

When one party puts into evidence part of a conversation, document, or transaction, the opposing party is entitled to introduce the whole of it. Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973); Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218 (1948), cert. denied, 251 Ala. 285, 37 So.2d 223 (1948); Bridges v. State, 26 Ala.App. 1, 152 So. 51 (1933), cert. denied, 228 Ala. 72, 152 So. 54 (1934), cert. denied, 292 U.S. 633, 54 S.Ct. 718, 78 L.Ed. 1487 (1934).

There was no error in allowing the State to introduce the affidavit in its entirety under these circumstances.

The appellant’s motions to exclude the State’s evidence and for a new trial raise the question of whether there was corroborative evidence of the testimony of the accomplice Buster Griffin sufficient to support a verdict of guilt.

Section 12-21-222, Code of Alabama 1975, states that conviction of a felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence is insufficient if it merely shows the commission of the offense or the circumstances thereof.

The corroborative evidence which is necessary does not have to be sufficiently strong in itself to support a conviction, but it must be of a substantive character and must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt. Thompson v. State, 374 So.2d 388 (Ala.1979); Andrews v. State, 370 So.2d 320 (Ala.Cr.App.1979), cert. denied, 370 So.2d 323 (Ala.1979).

The testimony of Officer Reeves and the expert witness Saloome, taken together, tended to place the appellant in possession of the controlled substance, which constitutes a crime if knowingly done. Their testimony tended to connect the appellant with the commission of the offense, as that expression in § 222, supra, is defined.

The corroborative evidence was sufficient to satisfy the statute, and the rulings of the trial court on this issue were free of error. Andrews, supra; Thompson, supra.

We have examined the record and we find no error that requires reversal of the judgment, but we remand the cause for proper sentencing.

Section 20-2-80(l)(a) requires imposition of a fine of $25,000 in addition to the mandatory minimum term of imprisonment of three calendar years when conviction is had under such subsection. The trial judge was required to sentence the appellant to pay a fine of $25,000 in addition to the sentence of four years imposed by him.

Section 80(1) provides that if the quantity of cannabis involved:

“a. Is in excess of one kilo or 2.2 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.”

This cause is remanded for imposition of a fine in compliance with the above section.

The judgment of guilt is hereby affirmed, but the cause is remanded for proper sentencing.

The foregoing opinion was prepared by the Honorable GARDNER F. GOODWYN, Jr., Retired Circuit Judge, 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.

REMANDED FOR PROPER SENTENCING.

All the Judges concur.


author: PER CURIAM.

text:
    Tommy Edward PYLES v. STATE.
    4 Div. 36.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
   ON RETURN TO REMAND

PER CURIAM.

On return to remand, the record shows that appellant was sentenced to four years in the penitentiary and fined $25,000 in accordance with § 20-2-80(l)(a), Code of Alabama 1975, in compliance with our opinion issued August 16, 1983.

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

AFFIRMED.

All the Judges concur.


text:
    Mitchell Hanna WHITE v. STATE.
    1 Div. 525.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Quashed April 6, 1984 Alabama Supreme Court 83-96.
    Arthur Clarke, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant went to trial on a two-count indictment, one count charging him with an assault in the first degree and the other charging an assault in the second degree. The jury found him guilty of assault in the second degree, a Class C felony. The court sentenced him to imprisonment for ten years, which is the maximum for a Class C felony. The indictment charged:

“The Grand Jury of said County charge, that, before the finding of this indictment MITCHELL H. WHITE whose name is to the Grand Jury otherwise unknown than as stated,
“1. did, with intent to cause serious physical injury to another person, cause serious physical injury to Edna Evans Legretta by severely beating her in the head with a pistol, in violation of Section 13A-6-21 of the Code of Alabama, against the peace and dignity of the State of Alabama.
“2. Did, under the circumstances manifesting extreme indifference to the value of human life, recklessly engage in conduct which created a grave risk of death to another person and did thereby cause serious physical injury to Edna Evans Legretta by Mitchell H. White in violation of Section 13A-6-20 of the Code of Alabama,
“against the peace and dignity of the State of Alabama.”

A tripartite error in the indictment apparently first came to light immediately after a jury had been selected to try the case on October 27, 1982. The defendant had been arraigned and had pleaded not guilty on April 29, 1981, at which time he was represented by a different attorney from the attorney who represented him on the trial and now represents him on appeal by appointment of the trial court. The order on arraignment made no reference to the second count of the indictment. The order stated in part:

“the defendant in open court on this day waived reading of the indictment in this case charging him with the offense of Assault First Degree and plead not guilty and reserved the right to file special pleas within 20 days.”

Out of the presence of the jury, the following occurred:

“MR. HARRISON [Assistant District Attorney]: At this time, the State moves to correct a clerical error in the indictment, Judge; two of them. The first is in Count Two. It should read 13A-6-21 and there is a close paren, symbol rather than the symbol 1 and it reads Section 20 rather than 21. The State would move to correct that in accord with Count One of the indictment. And secondly, Your Honor, the secretary transposed the names in both Counts of the victim. The victim’s name is. Edna Le-Gretta Evans and they have it Edna Evans LeGretta. I don’t think — Both of them are clerical errors, Judge. I don’t think the defendant has been prejudiced by that. He knows who the victim was. We have talked about it for quite some time.
“MR. CLARKE [Defendant’s Attorney]: Judge, I am going to object to any — trying to cure the indictment this morning. I am certainly not going to consent to it. “THE COURT: Well, I don’t see that it has prejudiced you. You know what the charges are and what the evidence is and the mere fact that they transposed the name — Of course, I don’t know why wait until the trial before correcting this thing. That indictment’s been here since February, February of last year — no that’s ’81. Seems to me would have corrected it a long time ago but I can’t see where it has prejudiced the rights of the defendant in any way. I am going to overrule your objection.
“MR. HARRISON: Thank you, Judge. “THE COURT: I will give you an exception.
“MR. CLARKE: We take an exception, Judge.
* * * * 5⅜ *
“(Jury was duly qualified and sworn.) “THE COURT: Now, how many of you are sitting on a jury for the first time in your life?
“(Show of hands)
“THE COURT: I think I will give them some preliminary instruction. In this case, as I have told you, Ladies and Gentlemen of the jury, the defendant here is charged with assault in the First Degree on the person of the woman that you saw in here, the lady — let me find that name — Edna LaGretta Evans. The defendant is presumed to be innocent. That’s part of our Constitution and our law. All our citizens charged with violations of the law are presumed to be innocent and what that means is that a defendant doesn’t have to do any thing to prove himself not guilty. He is presumed to be not guilty and that presumption of innocence afforded the defendant by law puts on the State of Alabama the burden of proving guilt and proving it beyond a reasonable doubt.”
[Thereafter the Court continued the instructions that cover approximately two pages of the transcript].

The first issue presented by appellant is thus stated in appellant’s brief:

“WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ALLOWED THE INDICTMENT TO BE CORRECTED OR AMENDED ON THE MOTION OF THE DISTRICT ATTORNEY PRIOR TO THE COMMENCEMENT OF THE TRIAL OVER THE DEFENDANT’S OBJECTION AND WITHOUT THE DEFENDANT’S CONSENT?”

We have quoted above all that the court reporter’s transcript shows pertaining to the particular issue. Irrespective of any question as to whether the court, by its overruling defendant’s objection, caused the State’s motion to be allowed to correct or amend the indictment, we give attention to the question whether there was any error prejudicial to defendant in permitting the trial to proceed to the conviction of defendant notwithstanding the erroneous particulars of the indictment: (1) that Count 1, though charging an assault in the first degree as defined by § 13A-6-20, erroneously alleged that it was “in violation of Section 13A-6-21;” (2) that Count 2, though charging an assault in the second degree pursuant to the definition thereof in § 13A-6-21, erroneously stated that it was “in violation of Section 13A-6-20;” and (3) in erroneously stating in each count of the indictment that the name of the alleged victim was “Edna Evans Legretta” instead of her correct name, “Edna LaGretta Evans.”

As to the incorrect designation of the applicable code section in each count of the indictment, we refer to the caption of 42 C.J.S. Indictments and Informations, § 138:

“The statute on which the indictment or information is based ordinarily need not be specifically referred to or recited. If it is referred to, the correct statute should be designated, although a misrecital thereof generally does not affect the indictment if it states facts constituting an offense under any statute.”

In Allen v. State, 33 Ala.App. 70, 30 So.2d 479, 481 (1947), cert. stricken, 249 Ala. 201, 30 So.2d 483, we find:

“The recitals of the code sections, in view of full information of the nature of the offense disclosed in Counts 1 and 2, may in our opinion be rejected as surplusage. As stated in Harper v. U.S., 5 Cir., 27 F.2d 77, 79, ‘The statement that the facts violate a certain section of the statute is nothing more than the pleader’s conclusion, which may or may not be correct, and neither adds nor detracts from the allegations.”

According to the undisputed evidence in the case, the defendant and the alleged victim had been well acquainted with each other for approximately four years prior to the alleged crime. According to the testimony of the defendant, they had been separated about three months at the time of the alleged crime. There is nothing in the testimony of either to the effect that defendant could have been misled in anyway by the transposition in the indictment of the middle name and the last name of the alleged victim. There is nothing in the evidence to indicate any confusion on the part of the defendant as to the name and identity of the person whom he was charged in each count of. the indictment as having assaulted.

We are convinced that neither the two mistakes in the indictment as to the number of the section of the Code nor the mistake in naming the alleged victim was harmful in the least to defendant and that, with appropriate explanations of the mistakes, the trial could have well proceeded without any effort to amend the indictment.

Code of Alabama 1975, § 15-8-90 provides:

“An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.”

In contending that the court committed reversible error as to the State’s effort to amend or correct the indictment, appellant urges correctly, as shown by a number of cases cited by appellant, that an indictment cannot be amended except as provided in § 15-8-90, in the absence of consent of defendant, not even as to an immaterial matter. Lay v. State, 42 Ala.App. 534, 170 So.2d 815 (1965); Bester v. State, Ala.Cr. App., 362 So.2d 1282 (1978); Skiff v. State, 84 Ala. 454, 4 So. 419 (1887).

The fallacy of appellant’s contention that the court erred in allowing the indictment to be amended lies in the fact that, although the court stated, “I am going to overrule your objection,” the indictment was not amended. The only reference to any amendment, or any proposed amendment or correction of the indictment is to be found in that part of the court reporter’s transcript that we have quoted above. There is no semblance of any reference thereto in the record proper. In the oral charge of the court to the jury, the court recited the exact language of both counts of the indictment except in the following particulars: It substituted the name of “Edna LaGretta Evans” for the name of “Edna Evans Legretta” in each count of the indictment, and substituted “Section 13A-6-20” for “Section 13A-6-21” in Count 1 and substituted “Section 13A-6-21” for “Section 13A-6-20” in Count 2 of the indictment. It charged the jury that the jury could under the evidence find the defendant guilty of assault in the first degree, assault in the second degree, assault in the third degree or not guilty.

Although the ruling of the court overruling defendant’s objection to the State’s motion to correct the indictment may be subject to the construction placed upon it by appellant that the indictment was amended in accordance with the motion, we are persuaded that no such amendment actually occurred and that the authorities cited by appellant, as well as other authorities in accordance therewith, that hold that an indictment cannot be amended without the consent of defendant even as to immaterial matters, are not apposite. In our opinion, the action of the court as to the matter did not constitute error prejudicial to defendant.

By the only other issue presented by appellant, he contends that the court was in error in overruling defendant’s motion to exclude the State’s evidence, made when the State rested its case in chief. Appellant argues that there was a “failure to prove a prima facie case and specifically” that there was a failure to prove “serious physical” injury to the victim. We quote some of the testimony of the alleged victim:

“A. He turned right on the Service Road and, I don’t know, fifty foot up is when he hit me the first time. He said, T am going to take you out in the woods and I am going to kill you.’ And he had the gun in his hand between his legs as he was driving and he reached up and he hit me right here on the head (indicating). When he hit me the first time, the gun went off and shattered the passenger’s side window.
“Q. Wait a minute. He had a gun between his legs when he hit you?
“A. No, he had it in his hand between his legs and he pulled up his hand. He kind of had it sitting in his palm.
“Q. All right. So, he said that the first time and then — how many times did he hit you?
“A. Four that I can recall.
“Q. Did you ever make it to the hospital that night?
“A. Oh, yes.
“Q. Okay.
“A. An ambulance—
“Q. What, if anything, happened at the hospital?
“A. An ambulance was called and they took me directly over there and I had my head sewed up. I had two holes and nine stitches; five in one and four in the other.
“Q. Okay.
“A. And I stayed—
“Q. Did you stay in the hospital?
“A. Two hours for observation and then I called my friends and they came and got me.
“Q. All right. Went home?
“A. Yes, I went to my—
“Q. Did you miss any time from work?
“A. A week from work.”

In our opinion, the testimony just quoted was sufficient to present a jury issue as to whether the alleged victim sustained “serious physical injury,” and the trial court was not in error in denying defendant’s motion to exclude the evidence.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.