text:
    Paul J. DAVIS v. Larry DOVER, Hubert Ray, Ed Jones, Alabaster Electric Co., Inc., et al.
    Civ. 4445.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1984.

      Samuel L. Masdon, Haleyville, for appellant.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellees Larry Dover and Hubert Ray.
    Kenneth H. Weldon of Bland, Bland & Weldon, Cullman, for appellees Ed Jones and Alabaster Elec. Co.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a personal injury case.

Mr. Davis’ complaint sought damages from defendants based upon negligence and wantonness. A light fixture fell from the ceiling of the plaintiff’s employer’s plant, and the plaintiff alleged that it struck and injured him. A jury trial ensued. Under the evidence, the defendants were not joint tort-feasors, but their liability, if any, was separate and several in nature. The case was submitted to the jury upon both negligence and wantonness as to the defendant Alabaster Electric Company and one individual defendant, but only upon wantonness as to the other two defendants. The only verdict of the jury was: “We the jury find for the plaintiff and against Alabaster Elec. Co. for negligence and assess the Damages at $2,000.00.”

The plaintiff appealed and raises as the sole issue for our decision the sufficiency of the jury’s verdict in view of the fact that there were three other defendants who were not mentioned in the verdict of the jury.

Intendments are indulged in favor of an ambiguous verdict where its language can be reasonably interpreted by reference to the pleadings and jury instructions. “The real question is whether the verdict was hopelessly defective thereby affording no proper basis for a judgment.” (Citations omitted.) Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979). In view of the pleadings, evidence and instructions of the trial court and a colloquy between the trial court and the jury, the clear import of the verdict was a finding in favor of the plaintiff and against the defendant, Alabaster Electric Company, for negligence in the assessed damages amount of $2,000.00, and an implied finding in favor of all other defendants. The verdict was adequate to provide a proper basis for a judgment to that effect.

An even stronger precedent for upholding the verdict is found in Handley v. Lawley, 90 Ala. 527, 8 So. 101 (1890), where two defendants were sued upon a note and the only jury verdict was in favor of the plaintiffs and against only one defendant, the other defendant not being named or designated in the verdict. Therein the supreme court determined that, “The issues in this case authorized a separate finding, and we hold that, when the jury found in favor of the plaintiffs against one defendant, and said nothing as to the other, this was equivalent to a finding in favor of that other.” 90 Ala. at 529, 8 So. at 101. For a more recent case, see Alabama Equity Corporation v. Hall, 46 Ala.App. 143, 239 So.2d 215, cert. denied, 286 Ala. 731, 239 So.2d 220 (1970).

The verdict was sufficient. We affirm.

The foregoing opinion was prepared by retired Circuit Judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Harold LOCKRIDGE v. ETOWAH COUNTY COMMISSION, et al.; Etowah County Personnel Board, et al.
    Civ. 4550.
    Court of Civil Appeals of Alabama.
    Dec. 12, 1984.
    Donald R. Rhea of Rhea, Boyd & Rhea and J.A. Hornsby, Gadsden, for appellant.
    ' William D. Hicks of Pruett, Hudson, Turnbach & Warren, Gadsden, for appellee.
   BRADLEY, Judge.

Employee appeals from an order of the Circuit Court of Etowah County reversing the Etowah County Personnel Board’s decision requiring that he be reinstated as a deputy in the Etowah County Sheriff’s Department.

Employee, Harold Lockridge, was a deputy sheriff of Etowah County. He had been an employee of the Etowah County Sheriff’s Department for thirteen years. On May 7, 1982 Mr. Lockridge requested that Roy McDowell, sheriff of Etowah County, grant him a leave of absence from June 5, 1982 through November 2, 1982 so that he could campaign for election to the office of sheriff of Etowah County. On May 11, 1982 Sheriff McDowell denied Mr. Lockridge’s request, stating that the department could not spare him due to an existing manpower shortage in the department. On June 8, 1982 the Etowah County Commission enacted a resolution providing that employees would be granted a leave of absence to run for political office, if requested. The resolution qualified the Commission’s grant of such requests “subject to this being within the authority of the Commission.” On June 10, 1982 Mr. Lock-ridge took a “leave of absence” and reported back to work at the department on November 3, 1982. On this date Sheriff McDowell informed him that he (Mr. Lock-ridge) no longer had a job with the department since he voluntarily quit the job when he left on June 10th without the sheriff’s consent.

On November 30, 1982 Mr. Lockridge requested a hearing before the Etowah County Personnel Board concerning his reinstatement in the sheriff’s department. The Personnel Board had formerly refused to grant Mr. Lockridge a hearing, contending that Mr. Lockridge had voluntarily quit his job. The Board reasoned that, therefore, it could not review Mr. Lockridge’s ease since it was permitted to review “dismissals” only. The circuit court, however, ordered the Board to give Mr. Lockridge a hearing. The Board found that Mr. Lock-ridge had been de facto dismissed on November 3, 1982, the date upon which he reported back to work and was told by Sheriff McDowell that he had voluntarily quit. The Board initially concluded that it lacked jurisdiction to hear this matter, since Mr. Lockridge’s appeal was untimely pursuant to section 9, 1971 Alabama Acts 203. However, the Board elected to proceed with the merits of the case, in the event that the above court order meant that jurisdiction was nevertheless present. The Board concluded that Mr. Lockridge should be reinstated, since Sheriff McDowell failed to allege good cause for Mr. Lockridge’s dismissal pursuant to section 9, 1971 Alabama Acts 203. Sheriff McDowell then filed a petition for writ of certiorari in the Etowah County Circuit Court for a review of the Personnel Board’s decision. Mr. Lockridge filed a petition for writ of mandamus in the Etowah County Circuit Court, asking that the Etowah County Commission and Sheriff McDowell be required to reinstate him to his position as deputy sheriff. The two actions were consolidated for trial. The court granted the writ of certiorari and, upon review, reversed the Personnel Board, finding that it had misapplied the law.

Mr. Lockridge appeals the deci-. sion of the circuit court. Appellees assert that Mr. Lockridge has no standing to appeal the order because he was not a party to the writ of certiorari. We disagree with this contention because Mr. Lockridge was a party to the original proceeding before the Personnel Board, which decision Sheriff McDowell appealed to the circuit court. Where an individual seeking an appeal was a party to the original proceeding which was subsequently reversed, and is adversely affected thereby, such individual has a right to appeal the reversal. See collected cases at 4 C.J.S. Appeal & Error § 169, 183 (1957). Thus, Mr. Lockridge should be permitted to appeal the circuit court’s order reversing the Personnel Board since he was a party to the original proceeding ordering that he be reinstated, and the reversal of that order adversely affects his rights.

Mr. Lockridge contends on appeal that the trial court erred in reversing the decision of the Etowah County Personnel Board after granting certiorari, since the Personnel Board’s decision was supported by sufficient evidence.

We have held that the review available after certiorari has been granted is limited to a consideration of the applicable law involved and whether the lower tribunal’s ruling is supported by any legal evidence. Minton v. Personnel Board, 406 So.2d 435 (Ala.Civ.App.1981).

The trial court determined that the Personnel Board had erred in its decision to reinstate Mr. Lockridge, and reversed the Board’s decision. Specifically, the trial court held that the Personnel Board made mistakes of law in determining that Mr. Lockridge was de facto dismissed and did not voluntarily leave his job when he failed to appear for work after being denied a leave of absence by Sheriff McDowell. The court concluded that the sheriff had the sole authority to grant a leave of absence and that the Etowah County Commission had no such authority. The circuit court thus concluded that Mr. Lockridge had voluntarily resigned from his position by absenting himself from his job without the sheriff’s permission. Furthermore, the trial court determined that Mr. Lockridge’s request for a hearing before the Personnel Board was not timely filed so that he was not entitled to a hearing. We affirm the trial court.

The dispositive issue on this appeal is whether the Personnel Board misapplied the law by deciding that Lockridge had been dismissed by the sheriff rather than having voluntarily left his job after being denied a leave of absence by the sheriff. Our determination of this issue centers around who had the authority to grant a leave of absence, and whether Mr. Lock-ridge was entitled to rely on a leave of absence granted by the Etowah County Commission. The controlling law on this matter is found in two acts passed by our legislature.

Act 318, Local Acts of Alabama 1947, p. 232, provides that the Etowah County Commission shall provide sufficient deputies for the sheriff and fix their compensation. The Act also gives the sheriff the power to fire his deputies at will.

Act 203, Acts of Alabama 1971, p. 496, creates the Etowah County Personnel Board and provides that no employee of an elected official of Etowah County shall be dismissed except for certain enumerated offenses. Should an employee of an elected official be dismissed, such employee is entitled to a hearing before the Personnel Board. After such hearing and upon a consideration of the evidence, the Board shall render its decision.

It is obvious that the sheriff did not dismiss Lockridge within the meaning of Act 203. The sheriff denied Lockridge’s request for leave of absence on the ground he needed him to work, that the sheriff’s department was short-handed. Then, when Lockridge reported back for work after several months’ absence, the sheriff told Lockridge that he considered Lockridge’s failure to report for work after being denied the leave of absence as a voluntary resignation. Nowhere in the record does it appear that the sheriff sent to Lockridge a written notice of dismissal containing one or more of the grounds for dismissal set out in Act 203. The uncontradicted evidence before the Board was that the sheriff considered Lockridge’s absence from work as a voluntary resignation. Lock-ridge considered himself to be on leave of absence granted by the County Commission.

A county is an instrumentality of the state of Alabama and is authorized to do only those things permitted or directed by the legislature of Alabama. Limestone County, Alabama v. City of Huntsville Hospital Board, 412 So.2d 792 (Ala.Civ.App.1982). We are unable to find any authority, nor have we been cited to any, for the Etowah County Commission to promulgate work rules for the employees of the sheriff’s office, especially the sheriff’s deputies. In the absence of such authority, we are constrained to hold that the Etowah County Commission has no power to grant leaves of absence to the sheriff’s deputies. The sheriff is the only official who has such authority.

The sheriff exercised his authority by denying Lockridge a leave of absence, and, when Lockridge failed to report for work after learning of such denial, rightfully considered that Lockridge had voluntarily quit his job.

We agree with the circuit court that the Personnel Board misapplied the law by finding that Lockridge had been dismissed by the sheriff and was, thus, subject to the review provisions of Act 203. Mr. Lock-ridge voluntarily left his employment as a deputy sheriff and is not due to be reinstated.

The circuit court’s judgment is affirmed.

AFFIRMED.

WRIGHT, P.J., and HOLMES, J., concur.


author: TYSON, Judge.

text:
    Alvin SCOTT v. STATE of Alabama.
    1 Div. 535.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.

      W.E. Garrett, Atmore, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Alvin Scott was indicted for theft in the second degree, in violation of § 13A-8-4, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment”. Following a habitual offender hearing, the appellant was sentenced to life imprisonment in the penitentiary.

Mrs. Ernest Weekley owns Weekley’s Grocery Store in Perdido, Alabama. On Friday, January 15, 1982, the Gulf Oil Corporation delivered gasoline to the two underground gasoline tanks situated beside Mrs. Weekley’s store.

Mrs. Weekley received a call early Saturday morning, January 16,1982, from one of the people who live near her store. As a result of that call, Mrs. Weekley went to her store and discovered that a quantity of gasoline was missing from the regular storage tank.

Mrs. Weekley testified that the gasoline was stolen on January 16, 1982, but the sheriffs office wrote it up as occurring on January 19, 1982.

The wholesale value of the gasoline that Mrs. Weekley discovered missing was stated as nineteen and a quarter cents per gallon (.1925 gal.).

Betty Hall testified she lives across the street from Weekley’s Grocery Store. On January 19, 1982, Mrs. Hall was awakened by a phone call from one of her neighbors, Janet Bush.

After she received the call, Mrs. Hall looked out of the side door of her house and saw a pickup truck with a pump and tank on the rear thereof and a man walking and smoking in front of Mrs. Weekley’s store.

Soon thereafter, she saw Buddy Bryars drive up to the store. Mrs. Hall heard the man say, “Hey, Buddy, what are you doing?” (R. 37). At this point Bryars backed up his vehicle. The man then walked over to Bryars’ car, leaned in the window and said something and then Bryars drove away.

Mrs. Hall saw another man and both of them got in the truck and left.

After the two men left, she and some other neighbors went over to Weekley’s Grocery Store and waited for Mrs. Weekley and the Sheriff to arrive. She stated that they smelled gasoline and took the top off of the gasoline tank.

Mrs. Hall said she did not see a hose going into the tank and did not see any gasoline removed. She stated she knew the man that she had seen that night was the appellant because of his body build, the way he walked and his missing fingers.

William E. Bush testified he lives next to Weekley’s Grocery Store. On January 19, 1982, at approximately 12:30 or 1:00 a.m., Bush was awakened by his wife who told him someone was at Weekley’s store. Bush told his wife to call the Sheriff and one of their neighbors, Clifford Hall, and then went outside. He saw two men and a “work type” pickup truck with a gas tank and a pump mounted in the bed. The truck was parked by the gasoline storage tank at Mrs. Weekley’s store. One of the men was standing beside the place where the tank is filled and the other man was walking around. Bush did not recognize either of the men.

Once Bush was outside, he realized his gun did not have any shells, so he went back to his house, loaded the gun and went outside again. He saw Buddy Bryars drive up to the store. Bush decided to get into his truck and drive over to Mrs. Weekley’s store. When he got there, he asked Bryars what was happening.

After his conversation with Bryars, he went home. Bush saw the two strange men remove a hose from the gasoline tank, put it in the truck and then leave. Bush then went back to Weekley’s store and Mrs. Weekley, Bryars and the Sheriff were there.

Bush stated the appellant was one of the men he saw that night at Weekley’s store.

Hubert Lee Bryars (Buddy) testified he is an assistant deputy for the Baldwin County Sheriff’s Department. On January 19, 1982, he received a call from the jail, and he was supposed to go to Perdido to see if he saw anybody.

He drove to Weekley’s Grocery Store and saw the appellant there with his pickup truck. When Bryars got out of his vehicle, the appellant said, “Buddy, if I hadn’t recognized you, I would blow your s_ away.” (R. 89). The appellant stated it would take about two seconds to light the dynamite.

Bryars saw the other man but did not recognize him. After talking to Bush when he drove up, Bryars then left and returned when the Sheriff arrived. Bryars stated that he told the Sheriff he did not know the man because the appellant had threatened to kill him and his family if he told on them.

Bryars told the Sheriff that the appellant was one of the men he saw that night, after he was called to the jail to sign a bond because he was withholding state’s evidence.

Larry Shivers testified that the appellant came to his house sometime in mid-January, 1982. The two men drove around and went to Weekley’s Grocery Store in Perdi-do and stole some gasoline. The appellant was the look-out and Shivers did the pumping.

Shivers stated that while they were there, Buddy Bryars drove up. A pickup truck also stopped at the store but he did not know who was in it.

Shivers stated he had been charged in the theft. The two had been to Weekley’s Grocery Store on other occasions and had stolen gasoline.

Jimmy Varnum testified that Buddy Bryars told him that he thought that one of the men involved in the theft was Shivers, but he did not know the other man.

Millard Richard McCall testified that one night at the Dixie Fort Motel in Atmore, he heard the appellant tell Bryars he had loaned his truck out. Bryars told the appellant the police were looking for his truck and the appellant said he would find it.

Jerry Spann testified Bryars told the appellant that his truck had been seen in Perdido and the police were looking for him.

James Hadley stated that Bryars asked him if he had heard about the gasoline theft. When Hadley stated that he had; Bryars told him that he could identify Shivers that night but not the other one.

The appellant denied he was at Week-ley’s Grocery Store on January 19, 1982. He stated he had loaned his truck to Shivers on that date. The appellant found out about the theft when Bryars came to his room at the Dixie Fort Motel and told him the police were looking for him. The appellant also denied threatening Bryars.

1(a)

The appellant contends the evidence in this case was insufficient to sustain a conviction of theft in the second degree.

In order to support a conviction in the case at bar, the prosecution had the burden of establishing by a preponderance of the evidence: (1) the ownership of the property; (2) that the said property was taken from the building; (3) the value of the property; (4) that the appellant did the taking or aided and abetted in the alleged taking; and (5) the time and venue of the commission of the act. See Stuckey v. State, 28 Ala.App. 83, 180 So. 116 (1938); see also McMickens v. State, 16 Ala.App. 78, 75 So. 626 (1917).

There is no question here concerning the ownership of the property taken. The evidence was undisputed that the gasoline found missing from the underground storage tank was the property of Mrs. Week-ley.

Section 13A-8-4(e), Code of Alabama 1975 states: “The theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored, constitutes theft of property in the second degree.”

Obviously, in the case at bar, the gasoline or “property” was stored in the underground gasoline storage tank. The issue we confront is what type of structure constitutes a “building” under the above statute. The appellant points out that “building” is defined by § 13A-7-l(2), Code of Alabama 1975 as: “Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods ...” (The same definition is found in § 13A-3-20 and § 13A-7-40, Code of Alabama 1975).

There are several reasons why we believe the legislature did not intend the above definition of “building” to apply in relation to theft offenses.

First, the legislature did not include the above-referenced definition in the definition section preceding the theft offenses. Therefore, we must assume the legislature intended the definition to apply only to chapters in which the definition was included, but not to every chapter in which the word was used.

Second, the word “building” as applied to the burglary (Ala.Code, § 13A-7-1(2) (1975)), arson (Ala.Code, § 13A-7-40 (1975)), and justification and excuse (Ala. Code, § 13A-3-20 (1975)) statutes has a different meaning than the use of the word in the theft statute. Traditionally, burglary is an offense against the security of habitation and arson is an offense against the building itself. See Chaney v. State, 225 Ala. 5, 142 So. 104 (1932); Washington v. State, 290 Ala. 344, 276 So.2d 587 (1973). In the justification and excuse section of the Code, the word “building” is used in connection with one’s right to use force in defense of his person and home against unlawful violence. See Russell v. State, 219 Ala. 567, 122 So. 683 (1929). Larceny, however, is an offense against the property. See Chaney v. State, supra. The significance of the word “building” is not as great in the theft statutes because the offense is not against the building itself or the security of the building but is against the property taken therefrom. The offense of larceny from a building developed as an aggravated form of simple larceny because such places had to be invaded to consummate the larceny. McCabe v. State, 1 Ga.App. 719, 58 S.E. 277 (1907).

Furthermore, even if the definition of “building” found in § 13A-7-l(2), § 13A-7-40 and § 13A-3-20, Code of Alabama 1975 applies to the use of the word in the theft statute, we believe that an “underground storage tank” would fall within that definition. Certainly, a gasoline storage tank is a structure which is utilized for the storage of goods. Even though a person cannot physically enter the tank, entry may be effected by the use of some type of instrument by the person (e.g., the hose). See Perry v. State, 407 So.2d 183 (Ala.Cr.App.1981).

The appellant cites Chaney v. State, supra, as authority for the proposition that an underground gasoline storage tank is not a “building”. In that case, the Alabama Supreme Court stated that a building “must consist of four walls and a roof, and if not resting on the earth’s surface as a floor, must have a floor of other material and must be susceptible of being entered by a human being. A gasoline pump is not such a structure.” Chaney v. State, supra.

"BUILDING. Structure designed for habitation, shelter storage, trade, manufacture, religion, business, education, and the like. A structure or edifice inclosing a space within its walls, and usually, but not necessarily, covered with a roof. Netter v. Scholtz, 282 Ky. 493, 138 S.W.2d 951, 953."

This case may be distinguished from the one at bar on several grounds. First, the Chaney case dealt with a gasoline pump not a gasoline storage tank. A gasoline pump is merely a device by which and through which gasoline is drawn from the storage tank. See People v. Lamphere, 219 N.Y.S. 390, 219 App.Div. 422 (1927). It is not used for storage of the gasoline.

Second, simply because a gasoline storage tank may be cylindrical rather than square or rectangular does not mean it may not be classified as a building. See State v. Ornelas, 42 N.M. 17, 74 P.2d 723 (1937). A gasoline storage tank is certainly “a structure ... enclosing a space within its walls ...” Jenney v. Hynes, 285 Mass. 332, 189 N.E. 102 (1934). Furthermore, underground structures have been held to be buildings. See cases cited in Jenney v. Hynes, supra.

Several jurisdictions have dealt with the question as to whether a gasoline tank is a “building” and different conclusions have been reached. See Atkinson v. Piper, 195 N.W. 544, 181 Wis. 519 (1923) (a gasoline tank held not to be a building within law restricting height of buildings); Small v. Parkway Auto Supplies, 258 Mass. 30, 154 N.E. 521 (1926) (case dealt with deed restrictions and court held the word “building” in its ordinary sense does not include a gasoline tank). San Diego County v. McClurken, 37 Cal.2d 683, 234 P.2d 972 (1951) (gasoline tanks held to be “buildings” within definition provided in zoning ordinance); Jenney v. Hynes, supra, (gasoline tank held to be “building” within restriction against, and decree enjoining, erection of “buildings” other than dwelling house).

In the case of State v. Gibson, 97 Iowa 416, 66 N.W. 742 (1896), the Iowa Supreme Court dealt with the issue of what constitutes a “building” when the charge is larceny from a building. The defendant in that case was charged with larceny from a corn-crib. The facts showed the corncrib was enclosed on all sides and did not have any doors or windows. The defendant gained entry into the corncrib by chopping off the end of a bottom board with an ax. He then reached into the crib and started the corn running out into his wagon by pulling some out with his hands.

The court stated that:

“A ‘building’ has been defined to be ‘a fabric or edifice constructed for use or convenience; as a house, a church, a shop. It must be permanent, and designed for the habitation of men or animals, or the shelter of property.’ 2 Am. & Eng.Enc.Law, 601. It was said in Railroad Co. v. Vanderpool, 11 Wis. [119] 121, that ‘the word ‘building,’ as a noun, has a common, well-understood meaning, ... and including only those which have a capacity to contain and designed for the habitation of man or animals, or the sheltering of property.”

State v. Gibson, supra.

The court further stated that the corn-crib was constructed as a permanent structure and was specifically designed to store corn, which is a commodity of value for use and sale. Whether the corncrib was a building within the statute could not be determined as a matter of law and was a question for the jury.

Certainly here a gasoline storage tank, although not having any doors or windows, is an edifice of permanent construction designed specially for the storage of gasoline. Whether it was a “building” under the laws of the State of Alabama was a question for the jury in the case at bar to decide.

The Supreme Court of Michigan in People v. Williams, 368 Mich. 494, 118 N.W.2d 391 (1962), held that a covered metal shed, which was used to store tires, set apart and away from the main gasoline station was a building within statute prohibiting larceny from a “building”.

“All stationary structures ..., no matter of what substance they may be constructed, are within term ‘building’ ... so long as they are designed for use in position in which they are fixed.” People v. Williams, supra.

Though set apart from the main building occupied by Weekley’s Grocery Store, the gasoline storage tank was a necessary part of the operation of a filling station. A gasoline tank is certainly an enclosed structure used for the storage of goods. Whether it was a “building” was a jury question under the evidence presented and which the jury determined adversely to the appellant.

Kb)

The only evidence of the value of the gasoline missing was the testimony of Mrs. Weekley. She stated that she found “approximately 150 gallons” of gasoline missing and that the price of gasoline at that time was nineteen and one-quarter cents (.1925) a gallon (which calculates to be $28.88).

Since in Alabama, the value of the property is used to determine the degree of theft, the State must establish the value of the property was equal to or exceeded the diacritical amount. We hold that the State met this burden in the case at bar. This court noted: Lankford v. State, 396 So.2d 1099 (Ala.Cr. App.1981).

“Testimony as to market value is in the nature of opinion evidence. A witness need not be an expert or dealer in a particular article in order to testify as to its value, if he has had the opportunity to form a correct opinion. Thomas v. State, Ala.Cr.App. 338 So.2d 1045 (1976). Such opinion evidence is not conclusive, and it therefore remains with the jury as the trier of fact to be considered like all other evidence. The evidence is viewed in light of the knowledge and experience of the jury, which factors are to be relied upon by the jury in determining the true value of the property. State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965).”

Mrs. Weekley testified she measured the gasoline in the tank to determine the amount of gasoline missing. She was clearly familiar with the wholesale price of the gasoline as she paid the bills. Therefore, she was competent to testify as to the value of the gasoline and the jury’s determination as to the value was amply supported by the evidence presented.

1(c)

The venue of the theft was clearly established as Weekley’s Grocery Store in Perdi-do, Alabama.

There was conflicting evidence adduced at trial concerning the date of the offense. One witness testified it occurred on January 16, 1982, and three others testified it was January 19, 1982.

Even though no definite date was positively established, all of the testimony relating to the theft pertained to one transaction on one specific night at Weekley’s Grocery Store. The appellant in this case had full knowledge of the exact offense for which he was being tried and the approximate date thereof.

Furthermore, the judge instructed the jury to determine if the time difference was in conflict and if so, whether it was a material difference which would render this appellant’s trial unfair.

We hold the jury properly considered the conflicts concerning “time” and determined all of the witnesses were referring to the same night on which the theft occurred.

Therefore, we hold there was, in fact, sufficient evidence on which to sustain the appellant’s conviction. Three witnesses so testified.

II

The appellant contends that a conviction may not be sustained on the uncorroborated testimony of an accomplice.

While we agree with the appellant, we must note that the corroborating evidence need not be sufficient in itself to support the conviction. The only requirement is that the corroborating evidence legitimately tend to connect the accused with the offense. Barnes v. State, 401 So.2d 305 (Ala.Cr.App.1981).

Three witnesses testified they saw the appellant at Mrs. Weekley’s store on the night in question. Two of them noticed a tank and a pump on the back of the appellant’s truck and one of the witnesses noticed a hose running from the appellant’s truck to the area of the gasoline storage tank. One of the witnesses testified she smelled gasoline at the store after the appellant and his companion had left. Furthermore, another witness testified the appellant threatened him not to reveal his knowledge of the appellant’s involvement in the theft.

The fact that the appellant was seen at Mrs. Weekley’s store near the time of the theft coupled with the fact that there was a hose running from his truck to the storage tank was sufficient “to connect the appellant to this theft” and therefore furnish the necessary corroboration of his accomplice’s testimony.

Ill

The appellant contends the trial court erred by allowing a State’s witness to view and use a drawing of the scene of the theft which had been made by a previous State’s witness. He asserts this is a violation of “the Rule” and the Hearsay Rule.

During cross-examination of one of the State’s witnesses, i.e., Mrs. Hall, defense counsel requested her to draw the area around Mrs. Weekley’s store for the jury, which she did. The appellant then objected when the State attempted to allow another State’s witness to use the map during his testimony.

The Alabama Supreme Court has held that it is proper to allow witnesses to refer to a map, even though it was not made by them, in explanation of their testimony before the jury. Burton v. State, 115 Ala. 1, 22 So. 585 (1897). Furthermore, it is not necessary that the map be introduced into evidence. Alabama Power Co. v. Jones, 212 Ala. 206, 101 So. 898 (1924).

The trial court did not err by allowing a State’s witness to use a map drawn by another State’s witness here at the request of defense counsel. Such a map was simply used as an aid in support of the witnesses’ own testimony.

IV

The appellant argues that two of his prior convictions should not have been admitted at the habitual offender hearing because the State failed to show the appellant had made a knowing waiver of his Boykin rights. Both of the challenged convictions were the result of guilty pleas.

Recently this court, through Judge Sam Taylor, stated:

“Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), states that before a trial judge may sentence a defendant following a plea of guilty, he must inquire if the defendant’s plea has been given knowingly and voluntarily. However, this rule of law has no application to the instant case. It only applies during the sentencing of the defendant following his guilty plea. There is no authority that these matters must be reviewed when that conviction is used pursuant to the Habitual Offender Act.
“A plea of guilty is a conviction itself. This is not the proper forum for attacking a prior conviction used during a Habitual Offender hearing. The proper forum for attacking the validity of a prior conviction would be by a petition for a writ of error coram nobis. See Mayóla v. State, 337 So.2d 105 (Ala.Crim.App. 1976).”

Jones v. State, 431 So.2d 1367 (Ala.Cr.App.1983).

Furthermore, we find that the State gave proper notice and offered adequate proof of the appellant’s prior convictions. Certified copies of the minute entries of the appellant’s prior convictions were offered as proof of these convictions. This is a proper method of proving such prior convictions. Thomas v. State, 395 So.2d 1105 (Ala.Cr.App.1981).

Each exhibit showed on its face a prior felony conviction of this appellant, and that he was represented by counsel at such time. The appellant’s prior convictions were properly presented during the habitual offender hearing.

Therefore, for the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . Black’s Law Dictionary, Fifth Edition, defines building as:


author: PER CURIAM. PER CURIAM.

text:
    Ex parte Alvin L. SCOTT. (re Alvin Scott v. State of Alabama).
    82-1076.
    Supreme Court of Alabama.
    July 20, 1984.
    Rehearing Denied Sept. 14, 1984.

      W.E. Garrett, Atmore, for petitioner.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for respondents.
   PER CURIAM.

We granted certiorari in this case to determine whether the Court of Criminal Appeals was correct in upholding the conviction of Alvin L. Scott for theft of property in. the second degree.

Defendant Scott was indicted for violation of Code 1975, § 13A-8-4, theft of property in the second degree, and convicted pursuant thereto in the Circuit Court of Baldwin County. After a hearing, defendant was adjudged a habitual offender, and subsequently sentenced to life imprisonment in the penitentiary. Defendant’s conviction stems from the following facts:

On or about January 19, 1982, at approximately one o’clock in the morning, two men (one of whom was identified as the defendant) were seen outside Week-ley’s Grocery Store in Perdido, Alabama. Witnesses testified that the two men were standing around a pickup truck which was equipped with a pump and tank. A hose was running from the truck to Weekley’s underground gasoline storage tank. One of the witnesses saw the men remove the hose from the storage tank, put it in the truck, and leave the scene. A deputy sheriff testified that, upon his arrival at Week-ley’s Grocery Store, he was met by defendant, who then threatened his life with a stick of dynamite if he revealed defendant’s identity.

Defendant’s accomplice in the theft testified at trial that he and defendant were at the store and did steal the gas, and that they had done so on other occasions.

The issues presented for our review are as follows:

(1) Whether the testimony presented at trial properly corroborated the testimony of the accomplice.

(2) Whether the evidence was sufficient to allow the case to go to the jury on a second degree theft of property charge.

(3) Whether the trial court erred in allowing prior convictions to be used in the habitual criminal sentencing hearing.

(4) Whether the Court of Criminal Appeals has the burden of searching the record for error.

After a thorough review of the issues presented, we agree with the defendant that the Court of Criminal Appeals was in error and that its judgment is due to be reversed as to issue (2). The judgment of the Court of Criminal Appeals, 460 So.2d 1364, is, therefore, reversed.

I

Defendant contends that his conviction should be overturned, as a conviction based on the uncorroborated testimony of an accomplice, in violation of § 12-21-222 of the 1975 Alabama Code. We disagree, for the reasons stated below.

Ware v. State, 409 So.2d 886 (Ala.Cr.App.1981), set forth a test for us to follow concerning corroboration of accomplice testimony:

“The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense.”

Id., at 891. Citing Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). Such corroborative evidence does not have to be very strong, or even sufficient to support a conviction, but merely must logically tend to link the accused with the offense. Miller v. State, supra. Three witnesses testified that the defendant was at Weekley’s Grocery Store on January 19, 1982. The defendant was seen near a truck with a gas tank in its bed, which tank was connected to the Weekley’s underground gasoline storage tank by a hose. The owner of the store testified as to the amount of gas missing after the incident. Evidence was also offered to show that defendant, before he left the scene of the crime, threatened bodily injury to one of the witnesses if he ever revealed defendant’s identity.

We agree with the Court of Criminal Appeals that the testimony of the accomplice has been properly corroborated in this case.

II

Defendant was indicted for the theft of property in violation of Code 1975, § 13A-8-4(e), which reads:

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

Defendant maintains that an underground storage tank is not a “building,” and, therefore, that the trial judge erred in allowing the case to go to the jury on a second degree theft of property count.

The legislature did not include a definition of the word “building” in Chapter 8 of the Criminal Code, which sets forth those offenses involving theft, but the legislature did define “building” in Chapter 7 of the Criminal Code, as follows:

“(2) BUILDING. Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein. Where a building consists of two or more units separately occupied or secured, each shall be deemed both a separate building and a part of the main building.”

Code 1975 § 13A-7-l(2).

Defendant argues that an underground gasoline storage tank is not a building, as defined in § 13A-7-l(2), because it cannot be entered by a person. He also cites Chaney v. State, 225 Ala. 5, 142 So. 104 (1932), to support his argument that the gasoline tank was not a “building.”

In Chaney, this Court held that a gasoline pump was not a building within the meaning of the term as defined in the burglary section of the Criminal Code.

We are persuaded that defendant’s argument is sound, and we hold that the underground gasoline storage tank here involved is not a “building” within the meaning of § 13A-8-4(e), because it is not a structure which may be “entered and utilized by persons. ...”

By holding that the underground storage tank here involved is not a “building,” we should not be understood as holding that a person cannot commit a theft from a “building” unless he physically enters the building. A person may commit a theft from a “building” or other structure by using an instrument or tool to effectuate the entry, so long as the instrument or tool is inserted into the “building” or structure for the purpose of perpetrating the theft. Perry v. State, 407 So.2d 183 (Ala.Cr.App.1981); Walker v. State, 63 Ala. 49 (1869). In fact, under the facts of this case, even though the defendant did not physically enter the gasoline storage tank, he, nevertheless, could have been convicted of theft. As a matter of fact, if the value of the property stolen had exceeded $100.00 in value, he could have been charged with theft of property in the second degree pursuant to the provisions of § 13A-8-4(a), which reads:

“(a) The theft of property which exceeds $100.00 in value but does not exceed $1,000.00 in value, and which is not taken from the person of another, constitutes theft of property in the second degree.”

It is undisputed, however, that the value of the property did not exceed $100.00 in value; therefore, he could not be convicted of theft of property in the second degree.

The judgment of the Court of Criminal Appeals to the contrary is due to be reversed.

Ill

An answer to defendant’s argument, that the trial court erred in allowing prior convictions to be used in a habitual felony offender hearing, can be found in the recent case of Jones v. State, 431 So.2d 1367 (Ala.Crim.App.1983).

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), states that before a trial judge may sentence a defendant following a plea of guilty, he must inquire if the defendant’s plea has been given knowingly and voluntarily. However, this rule of law has no application to the instant case. It only applies during the sentencing of the defendant following his guilty plea. There is no authority that these matters must be reviewed when that conviction is used pursuant to the Habitual Offender Act.
“A plea of guilty is a conviction itself. This is not the proper forum for attacking a prior conviction used during a habitual offender hearing. The proper forum for attacking the validity of a prior conviction would be by a petition for a writ of error coram nobis. See Mayola v. State, 337 So.2d 105 (Ala.Cr.App.1976).”

Id., at 1372. The principle stated in Jones is applicable in this case, and resolves the issue. The trial judge did not err by allowing prior convictions to be used at the sentencing hearing.

IV.

The final issue raised for our review is whether the Court of Criminal Appeals must search the record in order to find any existing error. Since the adoption of Rule 45B, A.R.A.P., effective as to appeals filed subsequent to January 1, 1982, the Court of Criminal Appeals has been under no obligation in a non-capital case to consider questions or issues not presented in brief on appeal. See Rule 45B, A.R.A.P., and Hoppins v. State, 451 So.2d 365 (Ala.1983). While that court may still consider obvious errors not argued, see Hoppins, the “search the record rule” is now applicable only in cases in which the death penalty has been imposed. Rule 45A, A.R.A.P.

The judgment of the Court of Criminal Appeals is due to be reversed because that court incorrectly determined that the defendant could be convicted of theft in the second degree.

REVERSED AND REMANDED.

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

EMBRY and ADAMS, JJ., dissent.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing, the state calls to our attention our original opinion’s failure to mention lesser included offenses. We now extend our original opinion to correct that oversight.

As the state correctly points out, third degree theft, Code 1975, § 13A-8-5, which consists of the theft of property which does not exceed $100 in value and which is not taken from the person of another, is a lesser included offense of second degree theft. Code 1975, § 13A-8-4. The state contends that even though, as our original opinion held, Scott was not guilty of second degree theft, all of the elements of third degree theft were proved at trial. We agree.

The record clearly shows that the trial court properly charged the jury as to third degree theft and the evidence clearly supports a finding that Scott committed theft of property not exceeding $100 in value which was not taken from the person of another.

Therefore, while reaffirming our- previous reversal of Scott’s second degree theft

conviction, we find sufficient evidence to support a conviction for third degree theft. Consequently, we remand to the Court of Criminal Appeals for a judgment not inconsistent with our findings. Ex parte Edwards, 452 So.2d 503 (Ala.1983), on remand, 452 So.2d 506 (Ala.Cr.App.1983), affirmed, 452 So.2d 508 (Ala.1984).

ORIGINAL OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

EMBRY and ADAMS, JJ., dissent.

      . Conflicting evidence existed at trial concerning the date of the offense. The jury was instructed by the court to consider whether the conflicting testimony would materially affect defendant's trial and consequently render it unfair.


text:
    Alvin L. SCOTT v. STATE of Alabama.
    1 Div. 535.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
   TYSON, Judge.

This cause is hereby remanded with directions to the Circuit Court of Baldwin County, Alabama, to conduct a new sentencing hearing, with Alvin L. Scott and his counsel present. Thereafter, the trial court shall enter an appropriate judgment and sentence in accordance with the opinion of the Supreme Court of Alabama in this cause (Scott v. State, 460 So.2d 1371, 1984, as extended on rehearing September 14, 1984).

Thereafter, an appropriate return shall be filed in the Court of Criminal Appeals of Alabama, 460 So.2d 1364, showing the new judgment and sentence in accordance with the opinion of the Supreme Court of Alabama as aforesaid.

REMANDED WITH DIRECTIONS.

All the Judges concur.

Appeal after remand, Ala.Cr.App., 460 So.2d 1376.


text:
    Alvin SCOTT v. STATE of Alabama.
    1 Div. 535.
    Court of Criminal Appeals of Alabama.
    Nov. 27, 1984.
   TYSON, Judge.

As directed by the opinion of this court, Scott v. State, 460 So.2d 1375 (Ala.Crim. App.1984), the Circuit Court of Baldwin County, Alabama, has conducted a new sentencing hearing and sentenced the appellant to one year in the county jail and, further, to be given credit for the time previously served in this cause.

The appellant was originally convicted of theft in the second degree and sentenced as a habitual felony offender to life imprisonment in the penitentiary. The Supreme Court of Alabama determined that under the evidence in this cause the appellant could only be convicted of theft in the third degree and not theft in the second degree. The cause was then remanded to this court for appropriate judgment in accordance with this opinion. Scott v. State, 460 So.2d 1371 [1984] as modified on rehearing [Ms. 82-1076, September 14, 1984], We therefore reverse the second degree theft conviction, as directed by the Supreme Court of Alabama, but affirm the conviction for third degree theft and the sentence of one year imprisonment in the county jail as imposed by the Circuit Court of Baldwin County on November 6, 1984, as shown by its remand filed in this court on November 9, 1984.

REVERSED IN PART; AFFIRMED AFTER REMAND.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Joe Roger CALHOUN v. STATE.
    7 Div. 78.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 16, 1983.

      B. Greg Wood of Wood, Hollingsworth & Willis, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   SAM TAYLOR, Judge.

Joe Roger Calhoun was convicted of the murder of Nelson Cross by shooting him with a shotgun. He was sentenced to twenty-one years’ imprisonment.

I

Appellant first contends that the trial court erred in refusing to charge the jury regarding the use of force in defense of premises as described in Ala.Code § 13A-3-25(b)(2). Appellant Calhoun killed the victim by shooting him at close range in the left eye with a shotgun just as the victim put his foot on the second doorstep leading to the porch of a house occupied by Calhoun and 17 members of his family.

The appellant neither requested a charge on § 13A-3-25(b)(2) nor submitted a written requested charge on this subject. However, appellant claims, even in the absence of an adverse ruling, that the trial court was guilty of plain error in failing to charge on § 13A-3-25(b)(2). We previously held in Craft v. State, 402 So.2d 1135 (Ala.Cr.App.1981), that: “The remedy for supplying a pertinent principle of law omitted from the court’s oral charge is to submit a written charge which supplies the omitted principle.” Snider v. State, 406 So.2d 1008 (Ala.Cr.App.), cert. denied, 406 So.2d 1015 (Ala.1981).

The facts indicate that the victim, who was drinking, was having a dispute with his girlfriend, who was a member of the Calhoun family. He appeared that day at the Calhoun house with a pump shotgun, which was taken from his car by the appellant. The victim left and later returned with a single-shot shotgun. He handed this shotgun to Bobby Calhoun and said, “I didn’t come back for no trouble, I just came back after my first gun that Joe took.” Bobby Calhoun unloaded the single-shot shotgun and handed it to Kindness Swain, who put it in his own car. (R 97-98) The victim was variously quoted as saying, “[If] you sleep tonight ... I’m going to burn down this house” (R 180); “I’ll be back ... no one could sleep there.” (R 197) These threats were allegedly made while the victim was standing in the yard. The victim did not have any apparent means to start a fire as he approached the house, although a cigarette lighter was later found in his pocket. The victim was shot while he was walking up the steps of the house. After Cross was shot, Sam Calhoun put the single-shot shotgun under his (the victim’s) body. (R 100-1)

It is apparent from appellant’s own testimony that the victim did not use deadly physical force in a manner defensible under § 13A-3-25(b)(2). As he stated: “I didn’t look and see whether he had a gun in his hand or not. I just shot.” (R 209) The appellant later testified that he fired because: “If I hadn’t shot [Cross], he would have killed me or somebody....” Under these factual circumstances, it was certainly proper for the court not to charge on § 13A-3-25(b)(2).

II

The appellant next contends that the court erred in sustaining the State’s objection to appellant’s offer of proof that the deceased had wounded appellant’s brother three years earlier by shooting into a trailer occupied by members of the appellant’s family.

The question of whether to allow testimony as to a previous act of violence of the deceased is a matter of discretion with the trial court. See, C. Gamble, McElroy’s Alabama Evidence § 63.01(3) (3d ed. 1977). The factors to be considered in such a ease are (1) the distance between the time and place of the former and the present act; (2) the presence or absence of kinship or friendship between the victim of the former act and the accused; (3) the relation between the accused and the deceased after the accused was informed of the former act of violence; and (4) the similarity or dissimilarity of the immediate facts of the presently charged homicide to the facts of the reported former act of violence.

It is clear that the victims of the former act and the appellant in this case are related to each other. The distance in time between the previous act and the present murder was approximately three years. The deceased and the appellant had, in the interval between the two incidents, associated with each other on amicable terms and had visited at each other's home as well as their parents’ homes. (R 30-31) (R 173-174) In addition, the two incidents appear substantially dissimilar. We hold, therefore, that the trial court did not abuse its discretion in any way by excluding testimony as to the previous act of violence by the victim directed toward persons other than the defendant himself.

On the basis of the foregoing, the judgment should be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Joe Roger CALHOUN. (In re Joe Roger Calhoun v. State of Alabama).
    82-1171.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Aug. 24, 1984.
    See also 450 So.2d 478.
    B. Gregg Wood of Wood, Hollingsworth & Willis, Talladega, for petitioner.

      Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for respondent.
   ALMON, Justice.

Certiorari was granted to determine whether the Court of Criminal Appeals, 460 So.2d 1376, erred in not allowing a defendant charged with murder, who raised issues of self-defense, defense of home, and defense of others, to offer evidence that the victim had wounded the defendant’s brother three years earlier by shooting into the defendant’s family residence.

This Court will consider the following facts, which the defendant properly requested under Rule 39(k), A.R.A.P., in addition to the facts stated in the opinion of the Court of Criminal Appeals, the Court having found these additional facts to be correct.

The defendant lived in a house with 17 members of his family in the rural community of Alpine, Alabama. According to the testimony of several persons who were present at the Calhoun home on May 15, 1982, the victim, Nelson Cross, was having a dispute with his girlfriend, Patricia Garrett (Pip), the defendant’s sister and a member of the Calhoun household. Because Cross, who had been drinking that day, repeatedly made offensive, life-threatening remarks to Pip, her father demanded that Cross leave their home. Cross, however, returned to the Calhoun home several times that afternoon and threatened to burn down the house or to kill somebody that night.

On one of those return trips, Cross drove up to the Calhoun house with a pump shotgun conspicuously protruding from the hood of his car. After several of the Calhoun children became alarmed at the presence of this gun, the defendant removed Cross’s gun from the car and placed it inside the Calhoun house.

Although Cross drove away, he returned early that evening, brandishing another shotgun and repeating the same threats of arson and murder to the Calhoun family members who were then present. The defendant stated that he looked out the window of his house and saw Cross walking toward the front porch. Cross was allegedly pointing a shotgun at members of the Calhoun family while making various threats. The defendant immediately turned around, grabbed the pump shotgun from the bed, opened the window, and shot Cross as he was walking up the front steps of the Calhoun house. He testified that when he shot Cross, he thought that Cross was still brandishing the shotgun.

Other eyewitnesses from the Alpine community, who had known Cross for many years, testified that he was a violent man who had gained a reputation in the Alpine community for violence and bloodthirstiness.

During the testimony of Larry Calhoun, a brother of the defendant, defense counsel attempted to elicit evidence from Larry concerning his prior dealings with the victim. The circuit court sustained the objection to this testimony, and defense counsel made the following offer of proof: that approximately three years before Cross’s death, the Calhoun family was living in a mobile home in the same location as their present residence; that Cross fired a shotgun into the mobile home and that Larry was wounded by this shot; that Larry knew that the shot was fired by Cross; and that the defendant, although not present at the time of this shooting, had knowledge of this event.

The defendant asserts that this decision of the Court of Criminal Appeals conflicts with the decision of that court in Weaver v. State, 402 So.2d 1099 (Ala.Crim.App.1981). We agree.

In Weaver, supra, the Court of Criminal Appeals quoted the traditional rule used to determine whether evidence of the defendant’s knowledge of the victim’s violent acts towards others is admissible:

“ ‘In some cases where the accused is relying on self-defense he will want to show that the victim had previously committed specific acts of violence towards other persons and that the accused knew of such acts. The purpose of such evidence will be to show the accused’s reasonable apprehension of peril. The general rule is that such evidence is admissible if the person toward whom the violence was directed had a very close connection with the accused such that there would be reasonable apprehension of peril on the part of the accused. It is quite clear that such violence towards other persons is not admissible if it is remote in time or lacks any connection in circumstances with the accused.’ ”

402 So.2d at 1101 (quoting Gamble, McElroy’s Alabama Evidence, § 63.01(3) (3rd ed. 1977)).

In Weaver, supra, the Court of Criminal Appeals held that because the specific acts proffered by the defendant occurred up to ten years prior to the shooting in question and because only one incident involved a person even remotely related to the defendant, this evidence was too remote in time or circumstance to warrant admission. 402 So.2d at 1101.

In contrast, Calhoun’s offer of proof clearly satisfied the rule announced in Weaver, supra: 1) Calhoun relied upon pleas of self-defense, defense of others, and defense of home during the trial below; 2) the victim of the former act of violence was Joe Roger’s brother, Larry Calhoun; 3) the presently charged homicide and the former act of violence both involved shootings which occurred at the Calhoun family home; and 4) the three-year interval between these shootings was not so remote as to require exclusion.

We therefore hold that because this evidence should have been admitted at trial, the Court of Criminal Appeals erred in upholding its exclusion.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur.


author: TAYLOR, Judge.

text:
    Joe Roger CALHOUN v. STATE.
    7 Div. 78.
    Court of Criminal Appeals of Alabama.
    Nov. 13, 1984.
   AFTER REMANDMENT ON APPLICATION FOR REHEARING

TAYLOR, Judge.

This court’s “After Remandment” opinion of October 9, 1984, is withdrawn, and the following substituted in its place.

In compliance with the decision of the Supreme Court of Alabama in Ex parte Calhoun, 460 So.2d 1378 (Ala.1984), the judgment of conviction in this case is hereby set aside and reversed, and the case remanded for a new trial.

REHEARING GRANTED; REVERSED AND REMANDED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Tommy G. JONES v. STATE.
    8 Div. 839.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.

      Randall 0. Gladden, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Tommy G. Jones, was convicted of robbery in the first degree and sentenced to fifty years in the penitentiary.

The only issue we will address is whether reversible error occurred when the district attorney commented during closing arguments on Jones’s exercise of his Fifth Amendment right against self-incrimination. Because of the brief amount of time the victim had to look at his assailant, the issue of identity was before the jury. The modus operandi used to effectuate the robbery was sufficiently unusual that the State felt justified in eliciting testimony about a similar robbery in Tennessee. Jones had been positively identified as being a participant in the Tennessee robbery and was awaiting trial on that charge.

Jones took the stand in his own behalf. On cross examination, he answered all questions directly relating to the offense charged. However, when the questioning focused on the events in Tennessee, he invoked his Fifth Amendment privilege against self-incrimination. The trial court recognized the privilege and refused to order Jones to respond to the questions. During closing arguments, the district attorney commented on Jones’s invoking the Fifth Amendment. Defense counsel objected but was overruled.

It is well settled that a prosecutor may not comment on a defendant’s failure to testify. It is equally well settled that once the defendant takes the stand, he loses this privilege, and his refusal to testify as to material matters may be commented upon by the district attorney. Jones took the stand and answered all questions on cross examination except those that would directly implicate him in another robbery.

The case of Clarke v. State, 78 Ala. 474 (1885), discusses a defendant’s right to use his privilege not to testify once he has taken the stand. The court said:

“[T]he waiver extends no farther than to all such facts and circumstances as may tend to illustrate the particular offense charged. ... To avoid ... injustice, and to secure to the defendant a fair and impartial trial in the sense guaranteed by law, the waiver of the constitutional immunity from compulsory self-examination should not be extended beyond facts which may be testified to by other witnesses, or which may be relevant to the issue, or may tend to elucidate it. Within these limits, the fullest cross-examination should be allowed; but its range into inquiries respecting past transactions and offenses, separate and distinct, is prohibited by the constitutional inhibition.” 78 Ala. at 480 (Emphasis added.)

Additionally, the case of Douglass v. State, 257 Ala. 269, 58 So.2d 608 (1952), says:

“While it is well settled that, ‘When the defendant in a criminal case avails himself of the statutory privilege of testifying as a witness, he subjects himself to the test of cross-examination as to any matter connected with the transaction, or pertinent to the issue, and impeachment by evidence assailing his general character, or by proof of contradictory statements on other occasions; but he can not be cross-examined, against his objection, as to his connection with, or commission of other offenses, or matters which would unduly prejudice him in the minds of the jury ....”’

More on the point, the Supreme Court in Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1942), discussed the right of a prosecutor to comment on the defendant’s assertion of his privilege once the defendant has taken the stand. The Court said:

“[Wjhere the claim of privilege is asserted and unqualifiedly granted, the requirements of fair trial may preclude any comment. That certainly is true where the claim of privilege could not be denied. ... The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right.” 318 U.S. at 196, 63 S.Ct. at 553 (Emphasis added.)

An accused who testifies in his own behalf has an undeniable right to invoke the privilege with respect to other offenses that may be pending against him. Allowing the prosecutor to comment on this right would render the privilege void.

This cause is reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BEATTY, Justice. JONES, Justice

text:
    Ex parte State of Alabama. (Re Tommy G. JONES v. STATE).
    83-431.
    Supreme Court of Alabama.
    May 11, 1984.
    Rehearing Denied July 6, 1984.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for petitioner.

      Randall 0. Gladden, Huntsville, for respondent.
   BEATTY, Justice.

This Court granted certiorari to consider whether or not the Court of Criminal Appeals was correct in finding that an improper comment had been made upon the petitioner’s claim of the Fifth Amendment privilege, with a consequent reversal of his conviction and remandment. We find that the Court of Criminal Appeals did palpably err in that finding, and we reverse the judgment of that court and remand this cause to that court for further consideration in accord with this opinion.

As shown by the record, the pertinent cross-examination of the petitioner reached a point concerning a trip he made to Tennessee:

“Q. Well, when was that, that you went to Tennessee with Mr. Crumley?
“A. During — later that month.
“Q. Later that month. And what was your purpose?
“A. I think I’ll take the Fifth Amendment on that. My trip with Mr. Crumley has nothing to do with what’s happened down here in Huntsville.
“Q. What’s the Fifth Amendment?
“A. Says that I have a right not to testify on anything that might tend to incriminate me.
“Q. Why did you go to Tennessee with Mr. Crumley that time?
“A. I’ll take the Fifth on that one.
“Q. Did you get shot in Tennessee?
“A. I take the Fifth Amendment.”

The trial court upheld this claim.

At the conclusion of the evidence, the prosecutor made his closing argument to the jury. The record shows that the following occurred during that summation:

“[Defense Counsel]: Your Honor, we’ll object to the comment concerning the Fifth Amendment in this case.
“[Prosecutor]: I believe I’m entitled to argue what he did.
“The Court: Overruled.”

Based upon this recitation, the Court of Criminal Appeals concluded that “the district attorney commented on Jones’s invoking the Fifth Amendment.”

We have concluded that in making this finding the court below was clearly in error. The record is silent on the prosecution’s argument. It is at least equally in-ferrable from the silent record that the prosecutor made no such offensive argument. The trial court, in fact, overruled the defense counsel’s objection, obviously indicating that he did not find the argument to have abridged the defendant’s privilege.

It is well established that objectionable remarks should be fully quoted, or substantially so, in an objection to improper argument. The case of McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973), contains an exhaustive analysis of this rule and the reasons in support of it. It will suffice here to quote from one of the cases cited in that opinion, i.e., Ferguson v. State, 36 Ala.App. 358, 360, 56 So.2d 118, 119-20 (1952):

“If one counsel’s argument passes beyond the bounds of legal propriety in the judgment of the other counsel, it is the duty of the latter to object specifically, and point out substantially the language deemed objectionable. Only when this is done can an appellate court know with reasonable certainty what was said in the court below.”

There having been no compliance with this requirement, the Court of Criminal Appeals was without means from which it could ascertain any impropriety in the closing argument. The cases of Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1942); Douglas v. State, 257 Ala. 269, 58 So.2d 608 (1952); and Clarke v. State, 78 Ala. 474 (1885), are not apropos. They either contained a perfected record of the argument of counsel or dealt with the invocation of the privilege. Likewise, Gru newald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), and Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), cited to us by petitioner, are not in point for the same reason.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

JONES and ADAMS, JJ., dissent.

JONES, Justice

(dissenting).

I respectfully dissent. I agree that the party objecting to opposing counsel’s argument has the burden of presenting, for appellate review, the substance of the remarks objected to. The problem arises where the court reporter does not take down the summations of counsel except for objections. This means that the record, as in this case, shows only the objections and subsequent remarks, including the court’s ruling, but not the remarks to which the objection is directed.

But this deficiency is cured where the substance of the comments is shown in the objection itself, particularly if counsel who made the comments — the object of the objection — expressly or impliedly accepts the objecting counsel’s version of the subject remarks. Here, the two-pronged test set out in Ferguson is complied with. Defense counsel specifically objected to the prosecutor’s “comment concerning the Fifth Amendment in this case.” Not only did the prosecutor at trial verify the fact that he had so commented, but the State, also, takes no exception to the Court of Criminal Appeals’ finding that “the district attorney commented on Jones’s invoking the Fifth Amendment.” It is worthy of note that the only point raised by the State in its application for rehearing in the Court of Criminal Appeals was that, because the trial court erred in granting Defendant’s Fifth Amendment privilege, any subsequent error in, overruling Defendant’s objection to the district attorney’s comments was harmless. Thus the factual posture of this case, as reflected in the opinion of the Court of Criminal Appeals, is not in contest.

Furthermore, the substance of the comment regarding “Jones’s invoking the Fifth Amendment” is of no consequence. As the federal cases cited in the majority opinion make clear, any comment upon Defendant’s failure to testify, once the privilege is granted, is reversible error.

I would affirm the judgment of the Court of Criminal Appeals.


author: PATTERSON, Judge.

text:
    Tommy G. JONES v. STATE.
    8 Div. 839.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Rehearing Denied Oct. 23, 1984.
    Certiorari Denied Dec. 21, 1984 Alabama Supreme Court 84-152.
   On Remand from Supreme Court of Alabama

PATTERSON, Judge.

Appellant, Tommy G. Jones, was convicted of robbery in the first degree, and sentenced to fifty years in the penitentiary. He appealed to this court.

This court by opinion dated November 29, 1983, 460 So.2d 1380, determined that the District Attorney’s comment during closing argument on appellant’s exercise of his Fifth Amendment right against self-incrimination constituted reversible error. On the basis of this determination, we reversed and remanded the case.

The Supreme Court of Alabama granted certiorari to consider whether this court was correct in finding that an improper comment had been made upon appellant’s claim of the Fifth Amendment privilege, with consequent reversal of his conviction, and remandment. Subsequently, the Supreme Court found that this court erred in its determination, and reversed and remanded the cause to us for further consideration in accordance with its opinion. Jones v. State, 460 So.2d 1382 (Ala.1984).

The Supreme Court found that the record was silent as to the prosecution’s argument, and that defense counsel’s objections were not specific, and did not point out substantially the language deemed objectionable. Because of this the Supreme Court held that this court was without means from which it could ascertain any impropriety in the closing argument.

We, in accordance with the opinion of the Supreme Court, find that appellant’s contention that the District Attorney’s comment upon his claim of Fifth Amendment privilege was improper, is without merit as the issue was not properly preserved for appellate review. Jones v. State, supra.

The above issue as to whether the comments of the District Attorney during closing argument constituted reversible error was the only issue addressed in this court’s original opinion. Appellant raises additional issues in his appeal which we will now discuss.

James “Tex” Johnson owned and operated a concrete business in Huntsville, Alabama. On April 1, 1982, he received a telephone call from a person who wanted him to pour a concrete slab in a “pig parlor” at a location in rural Madison County. The calling party gave him instructions on how to get to the location, and he drove there in his truck. It is apparent from the record that the understanding between the caller and Johnson was that Johnson would visit the site, measure the dimensions of the proposed slab, and determine the concrete requirements. Johnson testified that when he arrived at the rural location, which appeared to be an abandoned farm, he was met by the appellant, Tommy G. Jones. He testified that as he stepped out of his truck the appellant said, “Are you Mr. Johnson?” He said, “Yes, sir”, and the appellant said, “Well, I was just cleaning up till you got here, we can measure it up in here.” Johnson testified that he got a tape measure and notebook from his truck, and he and the appellant walked into the barn with appellant leading the way. After getting into the barn, a man wearing a Halloween type mask and a shaggy black wig, and carrying a long barreled pistol in his hand, jumped out behind Johnson, and ordered him to lie down. Johnson then observed the appellant was carrying a short barreled or snub-nosed pistol in his hand. Johnson lay on the ground, and the man wearing the mask put a pistol to the back of Johnson’s head, and demanded his money. Appellant sat on top of Johnson. Appellant took approximately $6,300 from Johnson’s pockets, along with his billfold, and removed three rings from his fingers. The two men bound Johnson with hay rope, blindfolded him, and drove away in his truck. The truck was abandoned nearby.

Over the objections of appellant, Richard Jernigan, Chief Criminal Investigator for the Giles County, Tennessee, Sheriff’s Department, testified that on April 21, 1982, he was working in an undercover capacity, and as a result of a conversation with the Sheriff of Giles County, he along with some other officers went to a location just north of Athens, Alabama, and met with Johnny Wallace, who was the owner of the Decatur, Alabama, stockyards. As a result of that meeting, Jernigan, Wallace, and another officer went in Wallace’s pick-up truck to a roadside park in the community of Elkton, Tennessee, where they parked and waited. Jernigan testified that the appellant, Tommy G. Jones, appeared, but seemed hesitant, and did not approach them, but walked away. Jernigan further testified that on the next day, April 22, 1982, he was contacted by Joe Scott, an investigator with the Livestock Theft Investigation Unit of the Alabama Department of Agriculture and Industries, and he and Scott drove to a rural farm in Giles County in Wallace’s automobile. Scott carried $14,000 in cash with him. Jernigan testified that Scott was to pose as a cattle buyer. When they arrived they discovered that the farm was abandoned. They drove into the barn lot. Appellant Jones approached them from the direction of the barn, and, waving, said, “Hello, how are you doing? Glad to see you found it all right.” Scott placed his weapon under the car seat, and got out to talk with appellant. Scott and appellant walked to the other side of a hedgerow, and Jernigan heard the appellant say, “Here’s the hay I was telling you about.” Jernigan heard scuffling beyond the hedgerow, and heard Scott say, “What is this? What’s the gun for? Don’t shoot me.” He observed appellant through the hedgerow holding Scott by the arm, and pointing a pistol at Scott’s head. Jerni-gan then observed another person running toward him in a crouched position from the hedgerow. This person wore a Halloween type mask over his face, and was pointing a “four-inch blue steel revolver” directly at him. Jernigan identified himself, and ordered the man to halt. The man continued to advance on Jernigan, and cocked his pistol, at which time both Jernigan and the masked man opened fire. Two shots were fired by the masked man, one narrowly missing Jernigan, and Jernigan fired four shots, all of which struck the masked man, bringing him down. Jernigan then turned his attention towards the appellant and Scott, identifying himself; and firing two warning shots. Appellant started running toward the barn, and while running raised his pistol, pointing it at Jernigan. Jernigan fired at appellant, wounding him, and appellant fell to the ground. The masked man was identified as Leo Crumley. He died from his wounds.

Immediately after the shooting, Jernigan removed a “wadded up” bundle of rope from appellant’s hip pocket, and took from him a short-barreled 3"-inch blue steel .38 caliber revolver. Jernigan took a 4"-inch barrel, .38 caliber blue steel revolver from the masked man. The mask was removed from the masked man, and turned over to the local sheriff’s office.

Photographs showing a bloody mask, wig, and two pistols were offered into evidence by the State, and admitted without objection. Johnson positively identified the wig and mask shown in the photographs as being the identical ones worn by the masked man that robbed him in Madison County. He also positively identified the 4"-inch barrel pistol shown in the photographs as the one carried by' the masked man during the Madison County robbery, and testified that the short barrel pistol was the same type which the appellant carried. Johnson identified appellant as one of the men that robbed him. He was positive in his identification. He testified that appellant was the one without the mask, and he got a good look at him, “looking him right square in the face”.

Jernigan testified that the mask shown in the photographs was the identical mask worn by the masked man, Leo Crumley, during the incident in Tennessee. Jernigan also positively identified the 4"-inch barrel pistol shown in the photographs as the one carried by the masked man during the incident in Tennessee, and the short barrel pistol as the one carried by appellant in Tennessee*

Appellant testified that he did not participate in the robbery of Johnson, and had no knowledge of it. He claimed that Johnson was mistaken in identifying him as a participant in the robbery. He attempted through witnesses to establish an alibi defense. As to the incident in Tennessee, he admitted ■ going to Tennessee with Leo Crumley, but when questioned about details of the incident in Tennessee, he invoked the Fifth Amendment. He admitted knowing Leo Crumley, who had lived near him, and testified he had known him about eight months prior to the incident.

Appellant contends that the trial court erred “in allowing hearsay testimony to be used to prove two crimes were committed in a novel and peculiar manner, therefore, making evidence of the later crime admissible in the trial of the first alleged crime”. He specifically refers to that part of the record where, during an examination of Jernigan out of the hearing of the jury, the trial court stated, inter alia, that both incidents involved a telephone invitation for a person to meet at some rural location to conduct some sort of business transaction. Appellant also states in his brief that the testimony concerning the negotiations in Tennessee was obviously hearsay. The hearsay testimony involving the invitations to deal and the preliminary negotiations in Tennessee came from Jernigan when he was being questioned on voir dire out of the presence and hearing of the jury. The questions which elicited this testimony were never asked of Jernigan when he was testifying before the jury, and the hearsay evidence complained of was never offered for the jury’s consideration. Therefore, appellant’s contention in this regard is without merit. Appellant also contends that when the hearsay is excluded there is no evidence that the two transactions were similar. We do not agree.

The appellant further contends that “the trial court committed reversible error in allowing the testimony of Richard Jerni-gan .... who testified exclusively about events that related to an alleged crime in another state some two weeks after the crime the appellant was charged with in the indictment”. He further contends that “the prejudicial effect of evidence of the subsequent crime outweighed the probative value of the evidence submitted strictly to bolster a positive identification by the victim”.

Appellant objected to the testimony of Jernigan on the grounds that it was evidence of another crime, and therefore inadmissible. After examination of Jernigan on voir dire, the trial court ruled that his testimony was admissible, saying, in part, as follows:

“.... I think that there are novel and peculiar aspects of both these crimes that bring it under the identity exception, and those are: the unusual mask that we have here that’s been identified by both the witness in this case and the witness from Tennessee as being the very mask; you’ve got the same or similar weapons used in both instances, the most unusual weapon being common to both; you’ve got two men in both instances. Those are the most salient features that come quickly to my mind; but those features indicate a very novel and peculiar manner of conducting the actions in both instances that link them and, therefore, make them admissible in this case because the identity of the defendant is in question here.”

As a general rule, in a prosecution for a particular crime, evidence of other acts which of themselves constitute distinct and independent offenses is not admissible. Lewis v. State, 399 So.2d 907 (Ala.Crim. App.1981); Ex parte Williams, 350 So.2d 708 (Ala.1977); Hayes v. State, 384 So.2d 623 (Ala.Crim.App.1979), cert. quashed, 384 So.2d 627 (Ala.1980). However, this well established principle of criminal evidence is subject to several equally well established exceptions. Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); Hayes v. State, supra; Lewis v. State, supra. In Lewis v. State, this court quoting from Wharton’s Criminal Evidence, Section 31, set out the general categories of exceptions as follows: “(1) Relevancy as part of the res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. • (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes.” See also C. Gamble, McElroy’s Alabama Evidence, Section 69.01 et seq. (3rd ed. 1977.)

Evidence of other crimes may be introduced in the trial of the present crime, when it is relevant to the present crime and tends to prove an element of the present crime that is at issue. Seymore v. State, 429 So.2d 1188 (Ala.Crim.App.1983).

Was the trial judge correct in admitting the testimony of Jernigan concerning the incident in Tennessee under the identity exception to the general rule excluding evidence of other offenses?

Williams’ Alabama Evidence, § 83 (1967) states:

“The rule in Alabama and at common law is that, in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. But such evidence may be admissible for another purpose; the rule is that if evidence tends to aid in identifying the accused as the person who committed the particular crime under investigation, it is admissible, despite the fact that it tends to show that the accused is guilty of other crimes for which he is not on trial.”

The distinguishing feature of the identity exception which justifies admission of evidence of other crimes is that the witness’s positive identification of an assailant is probative of the perpetrator’s identity in the case being tried. Otherwise, the evidence would tend to show only a propensity to commit crimes, or bad character. Such an identification only tends to prove identity if it provides an inference that the person who committed the other crime is also the one who committed the present crime. The manner of commission, or circumstances surrounding the commission, of the two incidents must bear some similarity dr “novel and peculiar” features in order to provide the necessary inference. Brumfield v. State, 453 So.2d 1097 (Ala.Crim.App.1984).

Two statements of the general rule as to the identity exception have been frequently relied upon by this court. One is Wig-more’s explanation of the source of the inference:

“For simplicity’s sake, the evidential circumstance may thus be spoken of as ⅛ mark.’ But in practice it rarely occurs that the evidential mark is a single circumstance. The evidencing feature is usually a group of circumstances, which as a whole constitute a feature capable of being associated with a single object. Rarely can one circumstance alone be so inherently peculiar to a single object. It is by adding circumstance to circumstance that we obtain a composite feature or mark which as a whole cannot be supposed to be associated with more than a single object.
“The process of construing an inference of identity thus usually consists in adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable that they coexist in a single object only.” 2 Wigmore, Evidence, § 411 (Chadbourn rev. 1979) (Emphasis in original.)
The other is Judge McElroy’s statement: “[ T ]he identity exception to the general exclusionary rule .... contemplates the situation where the now-charged crime was committed in a novel and peculiar manner and the state is allowed to show that the accused has committed other similar offenses, in the same novel and peculiar manner, in order to show him the perpetrator of the now charged crime.”' C. Gamble, McElroy’s Alabama Evidence, § 69.01(8) (3d ed. 1977).

The identity exception may be used only when the defendant’s identity has been put in issue. This issue can be injected in several ways. It is not necessary that a special plea be entered, nor that defense witnesses be called, to raise the issue of identity. Identity of the perpetrator is placed in issue when counsel for the defendant cross-examines a witness so as to challenge the witness’s identification of the perpetrator. Brumfield v. State, supra; Thomas v. State, 409 So.2d 955 (Ala.Crim.App.1981), cert. denied, 409 So.2d 955 (1982).

As to the relevancy of Jernigan’s testimony about the incident in Tennessee to prove identity, the appellant’s identity as one of Johnson’s robbers was in issue. Although Johnson gave a detailed eye-witness account, and positively identified appellant as one of the men that robbed him, no one else witnessed the robbery except the robber who was masked. Appellant testified that he had no knowledge of the robbery, and that the victim was mistaken in identifying him as one of the perpetrators. He testified that he was in Anniston at the time of the robbery, raising the defense of alibi. He presented alibi witnesses who testified in substance that appellant was at some other place at the time of the robbery, the inference of the alibi testimony being that Johnson did not know who robbed him, but that it could not have been appellant. The appellant’s counsel extensively cross-examined Johnson as to his opportunity to observe appellant at the time he was robbed. Appellant’s identity was very much in issue. The theory of his defense and mistaken identity.

Under the identity exception to the general exclusionary rule prohibiting the admission of other or collateral crimes as substantive evidence of the guilt of the accused, the other crime is not relevant to prove identity unless both that and the now-charged crime are “signature crimes” having the accused’s mark and the peculiarly distinctive modus operandi so that they may be said to be the work of the same person. Thomas v. State, supra; Bighames v. State, 440 So.2d 1231 (Ala.Crim.App.1983); McElroy’s, id.

Does the manner of commission of the two incidents or crimes in this case bear such similar or novel and peculiar features as to provide the necessary inference? Are they so similar, novel and peculiar, and do they have such a distinctive modus operan-di, that it can be reasonably concluded that they are “signature crimes”, and have the appellant’s mark on them? Can it be reasonably inferred from the evidence in the record pertaining to the two incidents that they are the work of the same persons? We say yes.

Both incidents occurred in rural areas at abandoned farms with barns; the victims were apparently lured to the farms on some pretense of doing business; two men were involved in each incident; in both cases the man identified as appellant greeted the victims upon arrival; in both cases a man wearing a mask appeared carrying a 4"-inch barrel revolver; in both cases the man identified as appellant was carrying a 3"-inch barrel snub-nosed revolver; Johnson was tied up with rope in the Alabama robbery, and appellant had rope in his hip pocket at the time of the incident in Tennessee; the mask taken from the masked man in Tennessee was identified by Johnson as the identical mask worn by the masked man in the Alabama robbery; the 4"-inch barrel revolver carried by the masked man in Tennessee was identified by Johnson as the identical revolver carried by the masked man in the Alabama robbery; appellant knew Leo Crumley prior to the robbery in Madison County; they lived in the same general area; and the robbery in Alabama and what was obviously an attempted robbery in Tennessee occurred within two weeks of each other and in the same general area. The similarity between the two, novel and peculiar features of the two incidents is striking. The modus oper-andi used in both is the same and is so peculiarly distinctive that any reasonable person would be compelled to conclude that the crimes were the work of the same persons. We conclude that they are “signature crimes”, having the appellant’s “mark”.

We hold that Richard Jernigan’s testimony concerning the incident in Tennessee was properly admitted under the above exception of relevancy to prove identity even though it tended to prove commission of another crime.

We have examined each issue raised in the appellant’s brief. In addition, we have searched the record for errors injuriously affecting the substantial rights of appellant, and have found none. The judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

All Judges concur.


text:
    James Aaron POOLE v. STATE of Alabama.
    7 Div. 312.
    Court of Criminal Appeals of Alabama.
    Nov. 27, 1984.
    Gary E. Davis, Centre, for appellant.
    Charles A. Graddick, Atty. Gen., and Glenn L. Davidson and Tommie Wilson, Asst. Attys. Gen., for appellee.
   TYSON, Judge.

James Aaron Poole, a juvenile, appeals from the order of the trial court transferring him to the circuit court for prosecution as an adult on two charges against him.

I

In order to grant a motion to transfer a juvenile to circuit court for prosecution as an adult, the trial court must consider the six factors enumerated in § 12-15-34(d), Code of Alabama 1975 and expressly find that probable cause exists to believe the charges against the juvenile are true and correct. Duncan v. State, 394 So.2d 930 (Ala.1981); Ash v. State, 424 So.2d 1381 (Ala.Crim.App.1982); cert. denied, 424 So.2d 1381 (Ala.1983); Ala.Code, § 12-15-34(f) (1975).

While the trial judge in this case did consider the six factors set out in § 12-15-34(d), Code of Alabama 1975, he failed to find that probable cause existed. Furthermore, there was no evidence of probable cause presented at the transfer hearing.

Therefore, we must reverse and remand this case to the trial court with instructions that a hearing be held to determine if probable cause exists to believe that a crime occurred and that the appellant, in fact, committed same.

For the reasons shown, this cause is reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.