text:
    Willie James PARKER v. STATE.
    2 Div. 396.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1124.

      Barrown D. Lankster, Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty of robbery in the first degree, which alleged in pertinent part the following:

“Willie James Parker, alias Sonnie Parker, whose name is otherwise unknown to the Grand Jury, did, in the course of committing a theft of, to-wit: Four Hundred Sixty Eight Dollars and Twenty Seven Cents ($468.27) in lawful United States currency, denominations being otherwise unknown to the Grand Jury, the property of Motel Demopolis, use force against the person of Ruby Luker with intent to overcome her physical resistance or physical power of resistance, while the said Willie James Parker was armed with a deadly weapon, to-wit: a rifle or shotgun, in violation of 13A-8-41 of the Code of Alabama.”

By § 13A-8-41(c) robbery in the first degree is classified as a Class A felony, which is punishable by imprisonment “for life or not more than 99 years or less than 10 years.” Section 13A-5-6(a)(l). Soon after the conviction and after due notice by the State that it would proceed against defendant under the Habitual Felony Offenders Act, proof was made that defendant had been previously convicted of three felonies (more than three were actually shown), and the court sentenced him to imprisonment for life without parole. Alabama Criminal Code, § 13A-5-9(c)(3) provides that in all eases when it is shown that a criminal defendant had been previously convicted of any three felonies and after such conviction has committed a Class A felony, “he must be punished by imprisonment for life without parole.”

Appellant has established his indigency, and by reason thereof he is represented on appeal by an attorney appointed by the trial court, who has filed a brief in which two issues are presented, which we now proceed to consider in their order of presentation in appellant’s brief.

As his first contention for a reversal, appellant states:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE APPELLANT HIS CONSTITUTIONAL RIGHT OF SELF-REPRESENTATION.”

Notwithstanding the strong three-justice dissent in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to the contrary, we are duty bound to follow the majority opinion, wherein it was held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. The serious question now presented is a factual one, to-wit, Whether the multifarious circumstances of the proceedings in the trial court show a violation of his stated constitutional right. We now attempt to set forth the labyrinthi-an circumstances in the trial court pertaining to the question, which at times purport to show an adamantine determination that he would not be represented by counsel.

As a background to the court reporter’s transcript of the proceedings, it is to be noted that on May 10, 1983, there was a pre-arraignment order entered by the presiding judge of the Marengo County Circuit Court stating, “Defendant waives counsel and claims right to represent himself,” and on the same day defendant, without an attorney, pleaded not guilty. Thereafter, the judge of said circuit recused himself in the particular case and the Chief Justice of the Alabama Supreme Court appointed Honorable Hardie B. Kimbrough, Circuit Judge of Clarke County, to try the case. Just before the case was called for trial, the following occurred out of the presence of a jury, in chambers of the Circuit Judge of Marengo County:

“JUDGE NEILSON: Mr. Parker, I have recused myself from this case because you have filed a lawsuit against me in Federal Court. This is Judge Hardie Kimbrough, who will try the case. He is from outside the circuit, and he wanted to talk with you before we begin the case.
“This is in chambers outside the presence of the jury.
“THE COURT: Hold up your right hand and be sworn.
“WILLIE JAMES PARKER
“Called by the Court, was sworn and testified as follows:
“BY THE COURT:
“Q. Is your name Willie James Parker? “A. Yes, sir.
“Q. You have previously been arraigned in this case, which is case CC-83-056, by Judge Claude D. Neilson. Do you recall when you were arraigned in this case?
“A. Yes, sir.
“Q. At that time, Judge Neilson determined that you were indigent. That means that you were without funds with which to pay a lawyer. Do you understand that?
“A. Yes, sir.
“Q. Now, the record reflects that at that time you made a determination that you would like to represent yourself; is that correct?
“A. Yes, sir.
“Q. I want you to fully understand that Judge Neilson has now recused himself from this case. He has nothing whatsoever to do with the case, and I do. In your best interest, I want to explain to you again that since you have been determined to be indigent and without funds to pay an attorney, that I, presiding in this case, will appoint a lawyer to represent you if you would like to have a lawyer assist you in the course of this trial. Do you understand that?
“A. Yes, sir.
“Q. I want you to express on the record now whether or not you have a preference as to whether or not you want a lawyer to assist you in the course of this trial.
“A. At first I wanted to defend myself, but I have been denied the right to use the law library. Time after time I’ve asked, and I’ve been incarcerated almost six months. I have asked every single day, and I haven’t been to the law library but twice. They’ve taken me twice, and that was to go to get books. I was told by the officer at the jail that I only had ten minutes to pick out the books and I had only two hours to use them. It’s only twice I’ve been able to use the law library. I’ve been denied that again and again. I asked everyday. I was always told: ‘We don’t have the people; I ain’t got the time; I don’t care if you don’t go.’ It was words used like this here, you know. I’ve been denied the use of the law library.
“Q. What I’m asking you this morning; You realized and you knew the case was set for trial this morning, didn’t you? “A. Yes, sir.
“Q. What I want to know is do you want me to appoint a competent attorney practicing law in this circuit to assist you in this trial and to represent you and protect your interest in this case?
“A. Yes, sir.
“Q. You would like to have a lawyer represent you?
“A. Yes, sir.
“Q. Then I will appoint one to represent you.
“THE COURT: Is Mr. Langster around? “JUDGE NEILSON: He’s supposed to be outside the courtroom.
“(Mr. Barrown D. Langster enters.) “THE COURT: Mr. Langster, this is Mr. William James Parker. I have been assigned by the Chief Justice to try this case since Judge Neilson recused himself.
“The record reflects that back on May 10th of this year, 1983, defendant at his arraignment entered a plea of not guilty and indicated his desire to waive counsel and represent himself.
“MR. LANGSTER: Yes, sir.
“THE COURT: I have examined the defendant under oath this morning. He tells me that because he has not had access to the law library, he would at this time like to have counsel represent him. It is a serious offense with which this defendant is charged, robbery in the first degree. Since he has requested counsel I am going to appoint counsel to represent him. He’s been declared to be indigent, and I am going to appoint you to represent him.
“MR. LANGSTER: All right, sir.
“THE COURT: My present intention is this: My present intention is to select a jury this morning and set the case over until tomorrow so you will have time to confer with your client between now and in the morning.
“I realize it is rather short notice. If you have anything to file between now and in the morning, I’ll be back up here and I’ll consider any motion you might have, Mr. Langster.
“MR. LANGSTER: All right, sir.
“THE COURT: We’ll go off the record now.
“(Discussion held off the record.)
“THE COURT: If you think of anything significant to report to the Court, report it this morning. Do you understand? “MR. LANGSTER: Yes, sir.
“THE COURT: I am not going to put you to trial in this defendant’s trial today. He has previously indicated he did not want an attorney and indicates today he wants one. So, we’ll set it over to tomorrow.
“MR. LANGSTER: All right, sir. “(In-chambers proceedings concluded.) “(A jury was duly empanelled and sworn.)”

Thereupon, the jury selected to try the case was given appropriate instructions and then excused until the following morning at 9:00. The witnesses and parties and attorneys in the case were also excused until the following morning at 9:00, at which time the following occurred, in chambers, out of the presence of the jury:

“THE COURT: Mr. Langster, you have some motion you would like to make to the Court?
“MR. LANGSTER: Yes, sir. The first motion I would like to make is to withdraw from this case. The basis for the motion is that Mr. Parker here informed me that he does not wish to have a lawyer to represent him, that he feels as though he was somewhat forced to have a lawyer represent him. He has instructed me he does not want me to do anything regarding preparing for his defense, that he would prefer to handle it himself, and that the reason he was confused about as to whether or not he would be appointed an attorney or should be appointed an attorney was because he did not have access to the law books and that he was not given the opportunity to prepare his own defense. He would ask the Court to give him a continuance in this case so he can use the law books and be in a position to prepare his defense himself.
“THE COURT: All right. The defendant Willie James Parker earlier indicated to the Court under oath his desire to have counsel to represent him. This record reflects that, and the motion to withdraw as attorney will be denied. You are an officer of the Court, and I’m instructing you to assist this defendant in any way possible. If the defendant during the course of the trial wishes to pursue the role of an advocate himself, that will be his personal choice. But I will not relieve you at this time and will instruct you to go ahead and assist this defendant in every way possible. Mr. Langster, you understand that, because this defendant did not indicate any confusion earlier about the fact he wanted counsel to represent him.
“Your next motion?
“MR. LANGSTER: Well, I don’t have any other motion at this time; just to withdraw.
“THE COURT: I deny the motion to withdraw. Any further motions?
“THE DEFENDANT: I said I don’t want an attorney.
“THE COURT: If you would like to speak—
“THE DEFENDANT: I want to make a statement on the record.
“THE COURT: Raise your hand and be sworn.
“(WILLIE JAMES PARKER was sworn and made the following statement): “THE DEFENDANT: This morning when I was taken back in the room, I was asked did I want an attorney. And at the moment I said yes. But I going to say it was because Judge Neilson was there. That probably influenced me to say I wanted an attorney. But now I’ve stayed on the record: Under no way will I accept no attorney out of Marengo County. I will not accept one. He will be in court but not defending me. I don’t want no attorney out of Marengo County.
“THE COURT: He has been appointed by the Court to represent you, and as an officer of the Court he has no choice. You will be given opportunity to consult with him, and I would advise you to cooperate with him. He is a practicing attorney and licensed in the State of Alabama and an experienced trial counsel. And I’m not going to relieve him of his obligation to defend you in this cause. How and in what manner you want to cooperate with him will be up to you. “THE DEFENDANT: In other words, I’m forced an attorney. I’m being forced an attorney.
“THE COURT: No, sir. It is at your earlier request under oath.
“THE DEFENDANT: I don’t want an attorney. I can go to jail. I will not accept an attorney. I will not talk to him. I don't want it. I would appreciate if I be taken to the jail. I don’t want no attorney, period.
“THE COURT: Mr. Langster, you remain as counsel in this case.
“If you don’t want him to participate during the course of the trial, I will allow you to make opening statements and examine witnesses. Mr. Langster can remain seated.
“MR. LANGSTER: I don’t know what my position is. I know the Court appointed me, and officially I’m his lawyer, appointed by the Court. Will the case be tried today or tomorrow?
“THE COURT: Are there any further motions?
“MR. LANGSTER: Well, at this time I feel somewhat constrained in that I represent him and I don’t.
“THE COURT: You represent him by this Court’s order.
“THE DEFENDANT: No way.
“THE COURT: If you would like to make some other motion, now is the time to make it on the record.
“THE DEFENDANT: I would like a motion.
“THE COURT: Just a moment, sir.
“MR. LANGSTER: Let me confer with him.
“THE COURT: All right.
“(Discussion off the record.)
“THE DEFENDANT: I don’t care what you do. Like I say: You are not my attorney. Whatever, you will not be defending me.
“MR. LANGSTER: At this time I’m not prepared to adequately defend him. I don’t see myself being any more prepared next Thursday than right now. He has indicated he will not cooperate with me at all. He will not talk with me over at the jail, and without his help, there is no way I can adequately defend him. I wouldn’t know what his version of the facts is on this basis of trying to establish a defense.
“MR. WATKINS [District Attorney]: May I ask a question? My understanding was you appointed a lawyer because you wanted one, and the basis was he hadn’t had time to use the library. I suppose that problem is still there. Would not a continuance be in order for him to use the library?
“THE COURT: The Court entertains such a motion.
“MR. LANGSTER: It would have to be made by him.
“THE DEFENDANT: I would like to a postponement to use the library so I could defend myself.
“THE COURT: The Court is going to, on the defendant’s motion, grant a continuance in this case until next Thursday, August 18, at 9:00 a.m. The Court does not relieve Mr. Langster of his appointment. The Court will order that this defendant be given access to the Maren-go County Law Library to assist in the preparation of the trial of this case. “Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: Is there anything further?
“MR. WATKINS: I don’t have anything. “THE COURT: I will say this for the record, Mr. Parker: I’m not aware that you are a licensed practicing attorney and I would encourage you to consult with your Court-appointed attorney because I feel it is in your best interest. You will have a week in which to consult with him and in which to prepare for the trial of this case. On August 18th at 9:00 a.m., this will be tried, do you understand?
“THE DEFENDANT: Yes. And, like I say, I will be coming in the courtroom defending myself. Anything Mr. Lang-ster come in and say, it will be — I don’t know on whose behalf it will be, but not mine.
“THE COURT: This is during the morning of August 11 and you have indicated under oath to this Court you wanted a lawyer. I am complying with this.
“THE DEFENDANT: A lawyer is being forced upon me, and I will not accept a lawyer.
“THE COURT: This case is continued until next Thursday at 9:00.
“(In-chambers proceedings concluded; case continued until August 18, 1983, at 9:00 a.m.)”

As foreshadowed by the foregoing quotation from the transcript, the case came on for trial on August 18, 1983, but before the jury was allowed to hear any of the proceedings, another in-chambers conference was conducted, in which the following occurred:

“BY THE COURT:
“Q. You have indicated to the Court on two different occasions. On one occasion you indicated under oath that you did want an attorney to assist you in the trial of this case, and on another occasion you indicated to the Court that you did not. We are going to commence the trial of this case this morning, and the Court wants to know on the record what your disposition is this morning insofar as representation by counsel.
“A. [DEFENDANT]: First of all, my lawyer — when I was given a lawyer last Thursday — he stated he didn’t have but three working days to prepare my trial. I think that’s unfair. Simple reason because I needed witnesses. I needed him to collect information, and he didn’t have the proper time to do that.
“Q. My question to you this morning is: Do you want to represent yourself, Mr. Parker, or do you want Mr. Langster to assist you in the trial of this case? “A. I would like assistance, but I would like to be the man representing myself because I feel like him not knowing nothing about the preliminary hearing and just three or four days, I don’t see how he would be adequate in his fully representing me. And I don’t feel I could be adequate representing myself due to the fact that I have been denied the use of the law library. I only had the use of it since last Thursday and twice before then for almost a six-month period.
“Q. What I’ll do is I’ll allow you to conduct the trial of this case.
“THE COURT: Mr. Langster, I require you to sit there and assist him in any manner you possibly can as an attorney. Do you understand that?
“MR. LANGSTER: Yes, sir.
“THE COURT: Do you have anything else for the record?
“MR. WATKINS: No, sir.
“THE COURT: Mr. Langster?
“MR. LANGSTER: I don’t have anything.
“THE COURT: You may have a seat at the respective tables, and we’ll begin the trial of this case.
“(In-chambers proceedings concluded). “(In open Court; jury present.)
“THE COURT: As I instructed you when we selected you to serve as jurors in this case, this is a case of the State of Alabama versus Willie James Parker. We’ll commence the trial of this case by opening statement. The State of Alabama is represented by its District Attorney Nathan Watkins, and he will make the initial opening statement.
“In this particular case the defendant, Mr. Willie James Parker, has selected to represent himself, and he will make an opening statement. I have appointed an attorney to assist him if he so desires in the trial of this case, Mr. Barrown Lang-ster of Demopolis, Alabama.
“After Mr. Watkins makes his opening statement, Mr. Parker will have an opportunity to make an opening statement to you ladies and gentlemen of the jury, then, if he so desires, the District Attorney, because the State of Alabama has the burden of proof in a criminal case, will have an opportunity to make a closing opening statement.
“You may make your opening statements at this time.
“MR. LANGSTER: Your Honor, may we approach the bench?
“THE COURT: Certainly.
“(Discussion held at the bench off the record.)
“(Whereupon an opening statement was made on behalf of the State by Mr. Watkins during which no objection was made.)
“(Whereupon an opening statement was made on behalf of the defendant by Mr. Langster during which no objection was made.)
“THE COURT: Any rebuttal?
“MR. WATKINS: No, sir.
“THE COURT: Call your first witness.
“MR. WATKINS: Call Mrs. Luker.”

The court reporter’s transcript shows that immediately after the last portion of the transcript quoted above, Mrs. Ruby Luker was called, was sworn as a witness and took the witness stand but that before she testified, Mr. Langster moved that she not be allowed to testify for the reason that she had been sitting in the courtroom during the statements of counsel as to what they expected the evidence to show. The motion was overruled by the court, and Mrs. Luker was allowed to testify. After her testimony was completed, four other witnesses testified on behalf of the State. All of the witnesses for the State were cross-examined by Attorney Langster. When the State rested, the defendant testified on direct examination by Mr. Langster and on cross-examination by counsel for the State. At no time between commencement of the testimony of Mrs. Luker and a return by the jury of its verdict, did the defendant personally take any part, other than as a witness, in the trial.

We conclude, from what has been shown above, particularly from his inconsistency and ambivalence as to whether he desired to defend himself, as contradistin-guished from having an attorney to defend him, that the trial court did the best it could to protect him as to the constitutional right of a defendant in a criminal case to proceed without counsel when he voluntarily and intelligently elects to do so, as pronounced in Faretta v. California, supra. Furthermore, we conclude that the trial court did not commit error prejudicial to defendant in any of its rulings on the subject. By making it known to defendant that he could defend himself in all respects as if no attorney were in the courtroom to aid him and directing an attorney to stay with him to render him aid, the action of the court stands out most favorably in bold relief against the contumacy of the defendant.

In the only other issue presented by appellant, the position is taken that there was insufficient “credible evidence at trial to sustain a finding of guilty.” Appellant is correct in stating that the defendant “took the stand in his own behalf” and that his “testimony was a complete denial of the robbery charge.” Defendant’s attorney was successful in showing by the witness Mrs. Luker that she was unable to identify the defendant as the robber from the photographs, including the photograph of the defendant, two hours after the robbery was committed, but that when she saw his picture some two years after the robbery and before the trial, she was able to identify it as a picture of the robber. The witness said that she continued to be so afraid when the pictures were shown to her two hours after the robbery that she was unable to make an identification of the robber from the pictures. Appellant says that there “was a conflict in the testimony of the expert witnesses sufficient to cast doubt on their testimony.” There was expert fingerprint testimony, and there was some dispute in the testimony as to whether it is a scientifically established fact that a latent fingerprint that matches precisely a known fingerprint is the fingerprint of the person who made the known fingerprint. Notwithstanding the possibility that defendant was not the robber, we cannot say that the evidence did not show beyond a reasonable doubt that he was. A jury question was clearly presented, and we are not persuaded that the verdict is clearly unjust.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Lewis Lamar FREE, alias v. STATE of Alabama.
    3 Div. 880.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 22, 1984.
    Certiorari Denied July 27, 1984 Alabama Supreme Court 83-965.

      Johnnie B. Byrd, Jr., Brewton, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Lewis Lamar Free was indicted on one charge of murder and twelve charges of attempted murder. The thirteen cases were consolidated for trial and the jury found the appellant “guilty as charged” in each indictment. The trial judge sentenced the appellant to six “life terms" in the penitentiary.

On the morning of November 20, 1981, J.D. White, the warden at Holman prison, saw the appellant park his blue and white pickup truck beside Highway 21 near Wet Weather Creek Bridge. The bridge is located north of Atmore and just south of Holman prison and G.K. Fountain Correctional Center.

At approximately 9:30 a.m., Sherman Sanks and his wife, Merle, were traveling south on Highway 21. As their vehicle approached the bridge, the Sanks saw the appellant standing beside his truck pointing a gun directly at their vehicle. The appellant fired a shot which hit the lip of the hood on the Sanks’ vehicle.

John Shook and his wife, Nellie, were proceeding north on Highway 21 as they approached the bridge. After they had passed the appellant standing beside the road, the Shooks’ heard what sounded like an “explosion”. The rear windshield of their vehicle was shattered and the front windshield had a hole in it. The bullet the appellant shot into the Shooks’ vehicle skinned the top of Mrs. Shook’s ear.

The next vehicle to pass by the appellant was driven by Glenn Williams. The passengers in this north bound vehicle were Glenn Williams’ wife, Ann (who was sitting on the passenger side of the front seat), Williams’ niece, Teresa Blair (who was sitting in the left rear seat), Williams’ mother, Myrtle (who was sitting in the center rear seat), Williams’ sister, Bernice Harvill (who was sitting in the right rear seat) and Williams’ great niece, Candida Harvill (who was sitting in Bernice Harville’s lap). As their vehicle approached the appellant, Glenn and Ann Williams noticed the appellant was holding a gun. Once their vehicle had passed the appellant, Ann Williams told her husband she thought the appellant was going to shoot. Glenn Williams instructed everyone to duck. An instant later the appellant shot through the windshield of their vehicle. The bullet struck and killed Bernice Harvill.

As Robert Moye drove south on Highway 21 toward the bridge, he saw the appellant aiming his gun at him. Moye, realizing the appellant might shoot, laid down in the seat until his vehicle had passed the appellant. Then Moye looked in his rear view mirror and observed the appellant doing something to the gun. A few seconds later, Moye heard a shot but neither he nor his vehicle was struck.

Sherry Morris was traveling south on Highway 21 as she approached the appellant near the bridge. When she saw the appellant, he was aiming a gun at her and she laid down in the floorboard of her vehicle. Morris then heard a shot but it did not hit her vehicle.

Around 9:40 a.m., McArthur Davis, an investigator for the Department of Corrections, was at his office at Fountain Correctional Center when he overheard a radio conversation about gunfire at Wet Weather Creek Bridge and the need for an ambulance. Davis left and drove to the scene on Highway 21. Davis saw the appellant’s truck parked near the bridge, so he parked his vehicle approximately 140 yards away.

Seconds later, a shot rang out which hit the hood of Davis’ vehicle. Davis lay down in the front seat just as he heard another shot. All that Davis could see was the barrel of a gun protruding from the corner of the window of the appellant’s truck. A third shot hit and shattered the left front headlight of Davis’ vehicle.

At this point, Davis got out of his vehicle. Several shots were then exchanged between Davis and the appellant over a period of fifteen minutes. Davis instructed the appellant to exit the truck which he declined to do. Several Department of Corrections officials and Atmore police officers finally subdued the appellant who was lying in the floorboard of the truck. In and around the truck, the police found a .30-30 lever action rifle, an empty twenty shell box of ammunition, nineteen spent hulls and one bent round of ammunition.

An autopsy was performed on the body of Bernice Harvill and the cause of death was determined to be a gunshot wound to the head. The rifle found in the appellant’s truck, which the appellant had purchased in October of 1981, was determined to be the rifle which fired the bullet which killed Bernice Harvill, and the rifle which fired the spent ammunition found in and around this appellant’s truck.

I

A

The appellant, citing Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), contends that the trial court exceeded its authority by ordering an inquiry into the appellant’s sanity at the time of the commission of the crimes. We do not agree with this contention for two reasons.

First, on March 30, 1982, at arraignment, the appellant pled not guilty by reason of insanity in each case. Certainly, the appellant’s sanity, at the time of these offenses, was placed at issue, and was therefore the subject of proper inquiry, once the appellant entered his pleas of not guilty by reason of insanity.

Secondly, on April 27, 1982, defense counsel filed a motion with the trial court stating “... that the Defendant is presently insane and has been before and since the commission of the crime for which he is charged” and requesting an inquiry be held to ascertain “... whether he is sane or insane.” (R. 522) (Emphasis added).

The language contained in defense counsel’s motion clearly indicates the appellant’s sanity at the time of these crimes was placed in question. It is clear to this court that when the trial court ordered a “complete mental evaluation ... to determine whether or not this Defendant is presently insane, was insane on the date of the crimes alleged to have been committed by him and whether or not this Defendant is now competent to stand trial for said criminal acts,” he was merely granting defense counsel’s motion and giving him what he had requested. (R. 524). We are further convinced this is true because defense counsel never objected to the trial court’s order.

Therefore, the trial court properly ordered an evaluation of the appellant’s sanity at the time of the commission of these offenses.

I

B

Prior to trial, defense counsel filed a motion in limine to prohibit the prosecution from introducing evidence of psychiatric or psychological evaluations of the appellant due to the fact he was invoking his privilege of confidentiality as provided in § 34-26-2, Code of Alabama 1975. The trial court denied this motion and appellant claims this to be reversible error.

The prosecution in its case-in-chief did not attempt to present any evidence or testimony concerning the subject of the motion in limine. It was the appellant in his case-in-chief who first brought out evidence of these evaluations during the testimony of Dr. DeFrancisco. Then on rebuttal, the prosecution introduced the testimony of Dr. Salillas concerning these evaluations.

This issue was discussed and decided by this court in Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982). In that opinion, Judge Barron wrote:

“We hold that by actively pursuing an insanity defense and introducing the deposition of Dr. Rudder as a defense witness, appellant waived any potential psychotherapist-patient privilege or privilege against self-incrimination against the subsequent testimony of Dr. McKeown on rebuttal.
‘As the Court of Criminal Appeals notes in its opinion, there are states which hold that by pleading insanity, a criminal defendant waives his statutory privilege against disclosure of a ‘psychotherapist-patient communication.’ The better reasoned cases hold, however, that there must be some presentation of evidence of insanity in addition to the plea, in order for the question of ‘waiver’ to arise....’ Ex parte Day 378 So.2d 1159 (Ala.1979), at p. 1162.
“To hold otherwise would be to allow appellant to call all those psychotherapists or psychiatrists, who examined appellant under State order, he desired. Then, on a claim of privilege, appellant would be able to prevent the State from calling experts who examined him for the same purpose on rebuttal to refute the appellant’s defense. Ex parte Day, supra; Estelle, supra, and cases cited therein.”

Magwood, supra at 927.

Since the appellant’s counsel initiated the inquiry into the appellant’s sanity, appellant waived any privilege of confidentiality-he may otherwise have had. Therefore, it is unnecessary for us to decide whether the trial court’s decision to deny appellant’s motion in limine was error.

II

At approximately 5:00 p.m. on the day of the appellant’s arrest, Officers Ronnie Cribbs and James Dixon went to the appellant’s cell. He was asleep and someone awakened him. The officers advised him of his Miranda rights which he indicated that he understood. The waiver of rights was read to the appellant which he signed. At this point, the appellant gave a statement which was reduced to writing by Officer Cribbs. No threats, coercion, offer of reward or other inducements were made in order to obtain his statement. Cribbs read the statement back to the appellant and gave it to him to read. The appellant then signed the statement.

The appellant contends the State did not prove his confession was voluntary because the officers did not know the appellant’s blood alcohol content at the time the statement was taken or if medication had been administered to him on the day his statement was taken. The only evidence the appellant presents in support of this contention is that the appellant’s blood alcohol content was .15 at 10:30 that morning and that medication might have been given to him that morning at the hospital due to his injury he incurred during the exchange of gunfire with the officers who subdued him.

“In order for intoxication to render a confession involuntary and inadmissible, it must be shown that the mind would have been substantially impaired. See Palmer v. State, 401 So.2d 266, 267 (Ala.Cr.App.), cert. denied, 401 So.2d 270 (Ala.1981); Tice v. State, 386 So.2d 1180 (Ala.Cr.App.), cert. denied, Ex parte Tice, 386 So.2d 1187 (Ala.1980).”

Moore v. State, 415 So.2d 1210, 1214 (Ala.Cr.App.), cert. denied, 415 So.2d 1210 (Ala.1982).

The appellant did not present any evidence as to his blood alcohol content when the statement was taken or what effect the measurement taken at 10:30 a.m. would have on him at 5:00 p.m. that same day. Nor did he present any evidence that he had been given any medication that day. In fact, the officers stated they did not smell the alcohol and that the appellant did not appear to be intoxicated.

“ ‘The voluntariness of a confession, authorizing its admission into evidence, must be determined by the trial judge in the exercise of enlightened discretion ... ’ Burks v. State, 353 So.2d 539 (Ala.Cr.App.1977). When conflicting evidence is presented concerning the facts and circumstances surrounding a confession, the trial judge must decide on its admissibility. Hobbs v. State, 401 So.2d 276 (Ala.Cr.App.1981). The trial court’s decision will not be overturned on appeal unless it appears to be palpably contrary to the great weight of evidence or is manifestly wrong. Burks v. State, supra.”

Womack v. State, 435 So.2d 754, 761 (Ala.Cr.App.), affirmed, Ex parte Womack, 435 So.2d 766 (Ala.1983).

The trial judge, at a hearing outside the presence of the jury, decided the appellant’s statement was voluntarily given and allowed the jury to determine its credibility. Based on the totality of the circumstances, we are of the opinion that the trial judge did not abuse his discretion in making this decision. Shewey v. State, 48 Ala. App. 730, 267 So.2d 520 (1972); Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (1973); Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192 (1973).

Ill

During the direct examination of the appellant, the following occurred:

“Q. Mr. Free, on the morning of November 20th was it your intent to kill Bernice Harvill?
“MR. HART: Judge, we object to that that’s invading the province of the jury.
“THE COURT: I sustain the objection.
“MR. BYRD: Your Honor, we would like to make an offer of proof on that point that the cases are legion that the defendant in a criminal prosecution can testify to his mental state:
“MR. HART: Judge, that’s not what they asked him. Not only is it invading the province of the jury, it’s a self-serving statement and it’s not admissible for a man to testify what his intent was.
“THE COURT: Where are some of the cases you are quoting. You got McEl-roy right there.
“MR. BYRD: Give me fifteen minutes and I’ll show them to you, Judge.
“THE COURT: All right, let’s see them. (Defense counsel leave the courtroom and thereafter return.)
(2:55 p.m.)
“THE COURT: Mr. Byrd, McElroy says: ‘Alabama, for over one hundred years, followed a rule that a witness could not testify to his own intent, motive, reason, belief, or the like, even though the witness’ intent was material and relevant.’ And they go down here in a subheading, they refer you to a case, where it says: ‘A witness could not testify on direct examination whether he, on trial for murder, intended to shoot anyone when he went for a rifle.’
“MR. BYRD: That’s been overruled, Judge, but I can’t find it.
“THE COURT: And I have found no law saying that’s overruled.
“MR. BYRD: What section was that?
“THE COURT: That’s 102.07(2) of McEl-roy on Evidence. All right, let’s go on gentlemen. They criticize the rule but they haven’t abandoned it.
“MR. STOKES: That’s all we have to ask at the present time.
“THE COURT: All right. All right, Mr. Hart, you may cross.” (R. 248-249)

Then, on redirect examination, the following took place.

“Q. I show you that picture right there of Bernice Harvill. I’ll ask you this question: Did you intend to kill Bernice Harvill—
“MR. HART: Judge,—
“Q. —with your rifle?
“A. No, sir.
“MR. HART: I object to that, Your Hon- or. I object to that question. It calls for conclusion, invades the province of the jury and he’s not qualified to testify to his own intent.
“THE COURT: Mr. Hart, I hate to tell you but the appellate courts of Alabama have ruled to the contrary. They have changed the rule in Alabama. And they have specifically held he is entitled to state what his intent was. I overrule the objection.” (R. 261)

If the trial court had not allowed the appellant to testify as to his intent, reversible error would have been committed as the appellant alleges. Morris v. State, 405 So.2d 81 (Ala.Cr.App.1981); Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974). However, once this error had been brought to the attention of the trial court, he cured this error by allowing the appellant to testify on this subject. Therefore, there is no basis for error to reversal here shown.

Further, the appellant contends that the trial court’s remarks to the prosecution when he was overruling the objection, prejudiced the appellant to the extent a reversal is mandated. We do not agree that the appellant was so prejudiced. Moreover, the appellant failed to object to this remark so as to preserve this issue for review. Rule 45 A.R.A.P.

IV

The appellant contends that the testimony of witness David Gafford concerning the reputation of the appellant was improperly excluded. We do not agree. The pertinent portion of the record follows.

“Q. You don’t even know where he lived. Do you know where he lived the year before November of ’81?
“A. He was — I suppose he was living in Mississippi. I don’t know.
“Q. You don’t even know where he lived; do you?
“A. No.
“Q. What about two years before November ’81?
“A. I don’t know where he lived.
“Q. You don’t know anything about his reputation in the community because you didn't live in the same community with him during that time; did you?
“A. Well, for the last few years, no.
“Q. All right, sir.
“MR. HART: Judge, we would ask the court to exclude any testimony this witness has given concerning any general reputation because he’s admitted he didn’t live in the community with him.
“THE COURT: I am going to instruct the jury to disregard his testimony about the reputation of the man. What is relevant is reputation in the community where he lived.” (R. 290)

This testimony clearly indicates Gaf-ford did not have knowledge of the appellant’s reputation in the community during the relevant time period, i.e., at the time when the offenses were committed. See C. Gamble, McElroy’s Alabama Evidence § 26.02(5), (6), (7) (3d ed.1977).

Moreover, the appellant did not object to the exclusion of this evidence nor except to the trial court’s ruling. There is no adverse ruling. Therefore, this issue is not preserved for review. Jennings v. State, 439 So.2d 771 (Ala.Cr.App.), cert. denied, 439 So.2d 771 (Ala.1983).

V

A

“As a general proposition, evidence of the conduct of a person whose mental capacity is in issue is admissible whether such conduct or condition occurs at, near, prior, or subsequent to the time in issue. It is commonly said that, upon the issue of mental capacity, wide latitude must be allowed all parties in making proof. We have statements to the effect that every act of a person’s life is relevant to the issue of his mental capacity. However, it is generally agreed that this “every act” rule must be understood to carry the necessary limitation that the acts inquired about must throw some light upon the question of mental capacity existing at the time in issue.
“The courts have adhered to the wide latitude rule relating to the admissibility of the conduct and condition of a criminally accused offered in support of his plea of insanity. This wide latitude has encompassed many forms of conduct and conditions which the trial courts have held are relevant to show his mental incapacity at the time in issue.” (Footnotes omitted).

C. Gamble, McElroy’s Alabama Evidence § 61.01(6), (7), (3d ed. 1977).

The appellant cites several instances in which he was prevented from presenting evidence to support his plea of not guilty by reason of insanity.

First, appellant complains the trial judge limited testimony concerning his suicide attempt. A review of the record reveals such was not the case. The appellant was allowed to testify in great detail about his attempted suicide.

B

The second instance occurred during the testimony of David Gafford. The pertinent portion of Gafford’s testimony is as follows:

“Q. All right. I’ll ask you this question: Are you familiar with the fact that other members of his family have had mental problems?
“MR. HART: Judge, we object.
“THE WITNESS: Yes, sir.
“THE COURT: I sustain the objection. “Q. (MR. BYRD): Can you tell the jury what other members of his family had mental problems?
“MR. HART: Judge, we object.
“THE COURT: I sustain the objection to whether other members of his family had mental problems.
“Q. (MR. BYRD): Do you know of your own personal knowledge if the family had problems?
“A. Yes, sir.
“MR. HART: Judge, we object to that question.
“THE COURT: I sustain the objection.” (R. 288).

In Russell v. State, 201 Ala. 572, 78 So. 916 (1918), it was held to be error not to allow the appellant to present evidence of the insanity of blood relatives if the mental capacity of the appellant was at issue. In that opinion, Chief Justice Anderson wrote:

“When the sanity of the person is being investigated and determined, and there is other proof tending to establish the mental incapacity of said person, it is competent to show in connection therewith the insanity of his ancestors or other blood relatives.”

Russell, supra at 573, 78 So. 916.

Gafford testified he was a Church of Christ minister in Greenville and also owned a store there. He stated he had known the appellant and his family for many years. Gafford demonstrated he had sufficient knowledge of the family to give an opinion as to the mental competency of certain members of the family. Even though a proper foundation had been laid, Gafford was not allowed to testify regarding this matter. Gafford should have been allowed to testify as to his opinion as to the mental competency of certain members of the appellant’s family. Therefore, the trial court’s refusal to allow this matter is reversible error.

C

Another instance of which the appellant complains is demonstrated in the following excerpt from the record:

“Q. All right. At that time were you married or were you single?
“A. I was ... I was single. I been living with this Shirley McCullough.
“Q. Was she pregnant or not?
“A. Yes, she was.
“Q. With your child?
“A. Yes, sir.
“Q. And did you all have some trouble that night?
“A. Yes, sir.
“MR. HART: Judge, we object to what— “THE COURT: I sustain the objection to any trouble he had with his wife the night before all this happened. This is on the 19th, I think, Mr. Stokes.
“MR. STOKES: Yes, sir, this is the 19th. Less than twelve hours, Judge.
“THE COURT: I sustain the objection. “MR. BYRD: Judge, we want to make an offer of proof in the record on that to preserve the record as to what he would say.
“THE COURT: Out of the presence of the jury?
“MR. BYRD: It doesn’t matter.
“THE COURT: All right, take the jury across the hall. I’m not going to let you start talking about it to any jury when I sustained the objection. Take them across the hall.
(Jury out)
“THE COURT: All right, let’s have your offer of proof.
“MR. STOKES: Judge, you want me to tell you what I am doing?
“MR. HART: No. We request that you tell him.
“MR. STOKES: The jury is not listening to it.
“MR. HART: I know that. But I don’t want you testifying and let him hear it. If he is going to make an offer of proof, Judge, I request that he make it.
“MR. STOKES: I can make the offer of proof. But I thought I might explain to the Judge how we are—
“THE COURT: All right, what is it you are trying to prove that happened on the 19th?
“MR. STOKES: In the first place, all this happened from 9:30 in the morning of the 20th, the shooting that—
“THE COURT: I know when it happened. But you are talking about the night of the 19th.
“MR. STOKES: No, the night of the 19th, Judge, is just one step away from the 20th.
“THE COURT: Several hours, Mr. Stokes.
“MR. STOKES: A few hours. Not any longer hours than from 9:00 o’clock to 5:00 o’clock that they let him testify what — From 9:00 o’clock in the morning until 5:00 o’clock that night. They took a statement at 5:30.
“THE COURT: What are you trying to show?
“MR. STOKES: What I’m trying to show is his mental condition. His mental condition. That he had had trouble with his girlfriend or this lady he was living with and she was pregnant and she was about to abort the baby; that she was about to run off with another man and that he got to drinking and taking these speed pills and he went crazy and he let (sic) at 1:30. “THE COURT: And I sustain the object to getting into his wife about to run off with another man and all that kind of foolishness Mr. Stokes. That is far removed from what we are trying here today.
“MR. STOKES: I know but we are trying to show his mental and emotional condition to see if he had a defect to the mind as to whether or not he—
“THE COURT: I’ll try to give you broad latitude to show a mental defect or disease.
“MR. STOKES: That’s exactly what I— “THE COURT: I’m not going to let you get into something that’s irrelevant. “MR. STOKES: A mental defect caused by many things, Judge. I understand. Are you saying I cannot pursue this particular question?
“THE COURT: That’s what I’m saying. “MR. STOKES: We object and we reserve an exception.” (R. 235-238).

There is authority that a trial judge may exclude evidence pertaining to mental competency if he deems it too remote. Eldridge v. State, 247 Ala. 153, 22 So.2d 713 (1945). However, we do not believe an occurrence which happened within 24 hours of the offense at issue should be excluded for this reason. It is “the safer and better practice” to exercise such discretion by admitting any fact which tends to prove such person’s mental capacity. C. Gamble, McElroy’s Alabama Evidence, § 61.01(5) (3d ed. 1977).

Our discussion of this issue is not to be misunderstood as indicating that we believe the appellant was insane. All relevant evidence pertaining to the issue of the appellant’s insanity should have been admitted into evidence under his plea. All competent and relevant evidence of the mental incompetency should have been presented to the jury so that they could properly decide this issue.

VI

The indictment charging the appellant with the murder of Bernice Harvill contained two counts. Count I of the indictment alleged “intentional murder” and Count II alleged “reckless murder”.

The appellant contends, citing Marsh v. State, 418 So.2d 191 (Ala.Cr.App.1982), that the inclusion of § 13A-6-2 in Count I of the indictment sufficiently put him on notice that he was charged with the violation of any part of that statute, either § 13A-6-2(a)(l) (intentional murder) or § 13A-6-2(a)(2) (reckless murder). The appellant filed a motion to require the State to elect between Counts I and II which was denied by the trial judge. He urges a reversal is required because this court stated in Toles v. State, 416 So.2d 768 (Ala.Cr.App.1982), that multiplicity of counts in an indictment is to be discouraged.

However, a reversal is not mandated on this issue. In a recent Alabama Supreme Court case, Ex Parte Washington, 448 So.2d 404 (Ala.1984), this court’s holding in Marsh, supra has been rejected. In that opinion, the Supreme Court stated that “intentional murder” is directed toward an individual and “reckless murder” is directed toward human life in general. Therefore, “reckless murder” is not a lesser included offense of “intentional murder”.

If, as in this case, proof is to be shown as to “reckless murder” as well as “intentional murder,” both must be alleged separately in the indictment. Therefore, the trial judge correctly denied the appellant’s motion to require the State to elect.

VII

Count Two of each of the twelve indictments for attempted murder reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment, Lewis Lamar Free, alias Lamar Free, whose name to the Grand Jury is otherwise unknown, did, with intent to commit the crime of Murder, (§ 13A-6-2 of Code of Alabama), attempt to commit the said offense by recklessly engaging in conduct which manifested extreme indifference to human life and created a grave risk of death to a person other than Lewis Lamar Free, alias Lamar Free, by shooting a rifle into a vehicle in which MacArthur Davis was riding as a passenger, in violation of § 13A-4-2 of the Code of Alabama.”

Count Two of each of these indictments essentially charged that the appellant recklessly attempted to murder the persons named in the twelve indictments. Attempted murder is a specific intent crime. Chaney v. State, 417 So.2d 625 (Ala.Cr.App.1982). An attempt to commit murder requires the perpetrator to act with the specific intent to commit murder. One must intentionally or knowingly attempt to commit murder. A general felonious intent is not sufficient. Accordingly, one cannot recklessly attempt to commit murder. Coleman v. State, 373 So.2d 1254 (Ala.Cr.App.1979).

If a person attempts to commit a murder and death ensues because of this act, that person is guilty of murder. However, merely because someone commits a murder does not mean that person is guilty of an attempt to commit murder. Coleman, supra. In other words, a person may recklessly commit murder but he cannot recklessly attempt to commit murder. Coleman, supra. Therefore, Count Two of each of these twelve indictments was defective for the above reasons. These counts should have been dismissed as a matter of law. The trial judge’s refusal to do so was reversible error.

We must caution the prosecution that upon retrial of this case, the State must show proof of the appellant’s specific intent to murder the person named in the indictment.

“In Simpson v. State, 59 Ala. 1 (1877) discussing the crime of assault with intent to murder, the Supreme Court stated:
‘... The offense charged must be proved, and an essential element of the present offense is not only an assault with intent to murder, but the specific intent to murder Ford, the person named in the indictment. If the intent was to murder another, or if there was not the specific intent to murder Ford, there can not be a conviction of the aggravated offense charged, though there may be of the minor offense of assault or of assault and battery....’ (Citations omitted.)
‘Furthermore, at 12, the Court said: ‘... The true principal is, that the particular intent, the intent to murder the person assailed is [a] matter of fact, about which the law raises no presumptions, and indulges no inferences ... ’ (Citations omitted.)
‘Simply put, the doctrine of transferred intent has no application to the offense of assault with intent to murder. Consequently, a general felonious intent, by implication of law, which will convert the killing of a human being into murder though his death was not the intent of the perpetrator has no application to the instant offense. The Supreme Court stated in Simpson, supra, at 18:
'... It is excluded by the terms of the statute, which include only direct assaults on the person of the party it is averred there was the intent to murder. If in fact there was not the intent to murder him, whether there was a general felonious intent, or an intent to do harm to some other individual, is not important — there can be no conviction of the aggravated offense....’” (Citations omitted.) (Footnote added).

Coleman, supra at 1257.

It is well settled that intent may be presumed from the use of a deadly weapon and the character of the assault. Chaney, supra. However, this evidence must be sufficient to allow the jury to conclude, by fair inference, that the appellant was shooting at the person (named in the indictment) in particular with the intent to murder him.

VIII

The appellant further contends he was improperly convicted of thirteen offenses because his course of conduct did not consist of thirteen transactions. We must agree.

“A single crime cannot be split up, or divided, into two or more offenses. Hurst v. State, 86 Ala. 604, 6 So. 120. Neither can a series of charges be based upon the same act. Gunter v. State, 111 Ala. 23, 20 So. 632; Clayborne v. State, 103 Ala. 53, 15 So. 842; Crosswhite v. State, 31 Ala.App. 181, 13 So.2d 693.”

Baldwin v. State, 47 Ala.App. 136, 251 So.2d 633 (1971).

“The State is without authority to split up one crime and prosecute it in parts. Savage v. State, 18 Ala.App. 299, 92 So. 19; Everage v. State, 14 Ala.App. 106, 71 So. 983; Moore v. State, 71 Ala. 307; Claude Crosswhite v. State, [31 Ala.App.] p. 181, 13 So.2d 693.”

Lynn v. State, 31 Ala.App. 216, 14 So.2d 259 (1943).

“Sometimes as a part of a single transaction more than one offense is charged to have been committed. If a person does a single act which results in the injury or death of more than one person, only one offense can be fastened upon him. But if in that occurrence he shoots different persons by different discharges of his firearm, an offense can be fastened separately as to each person so injured or killed, although there was but one transaction, and upon a trial for one such offense the whole transaction is admissible. Smith v. State, 88 Ala. 73, 76, 7 So. 52; Cheek v. State, 38 Ala. 227; Gunter v. State, 111 Ala. 23, 20 So. 632; Grissett v. State, 241 Ala. 343, 2 So.2d 399.”

Kilpatrick v. State, 257 Ala. 316, 59 So.2d 61 (1952); Clements v. State, 390 So.2d 1131 (Ala.Cr.App.), writ denied, 390 So.2d 1136 (Ala.1980).

The case at bar is a clear example of charging multiple offenses based on a single course of conduct. Only, in this case, we have more than one single transaction. In order to determine how many transactions occurred and thus, how many offenses are to be charged, we must review the facts.

Both occupants of the Sanks vehicle stated only one shot was fired at their vehicle. Therefore, only one transaction occurred, and the appellant could only be found guilty of one offense of attempted murder based on that transaction.

The same is true of the Shooks’ vehicle. Only one shot was fired at their vehicle. Therefore, there was only one transaction and only one conviction for attempted murder could be sustained under that aspect of the evidence.

The occupants of the Williams’ vehicle stated only one shot was fired at their vehicle and one of the occupants was struck and killed by that shot.

That shot constituted only one transaction and therefore, if the State sought to convict the appellant of murder, the five attempted murder convictions could not stand, Coleman, supra.

Only one shot was fired at the Moye vehicle. There was one occupant of this vehicle. Therefore, the one attempted murder conviction based on this transaction was proper. The same reasoning holds true as to the evidence shown for the Morris vehicle.

Several shots were fired at the Davis vehicle. However, there was only one occupant of this vehicle and therefore, the single attempted murder conviction was proper, under the evidence.

As our analysis above indicates, six separate transactions occurred on that morning and therefore the appellant only committed six separate offenses. The appellant may only be convicted of one offense per vehicle under the evidence in this record.

Therefore, the State improperly split six alleged crimes into thirteen offenses.

The State admits in its brief that there were only six transactions, but contends the appellant was not harmed by these thirteen convictions because he received only six sentences. However, § 13A-4-5(c) Code of Alabama 1975 provides that:

“A person may not be convicted of more than one of the offenses defined in sections 13A-4-1, 13A-4-2 and 13A-4-3 for a single course of conduct designed to commit or to cause the commission of the same crime.”

Attempt is defined in § 13A-4-2, Code of Alabama 1975 and twelve of the thirteen convictions were for attempted murder. Seven of these convictions were based on three transactions. Therefore, according to the statute, the appellant cannot receive cumulative convictions based on the same transaction, under the attempt statute, regardless of the number of sentences which he received.

Thus, the trial judge should have required the State to elect between the offenses so that only one indictment per transaction (per vehicle) went to the trial jury.

For the reasons shown above, this cause must be reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.

      . There is little substantial difference between the offenses of attempted murder and assault with attempt to murder. 40 C.J.S. Homicide § 68 (1944).


author: BOWEN, Presiding Judge.

text:
    Pearl HAMPTON v. STATE.
    8 Div. 986.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1126.

      Trey Riley, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Pearl Hampton, the appellant, was indicted for the first degree assault of Compton Owens. A jury convicted him of assault in the second degree. He received a ten-year split sentence, with one year to serve and the remaining nine years suspended for a period of five years’ probation. Hampton argues that this conviction was barred under the principles of former jeopardy by a prior conviction involving a different victim because both victims were injured by the same shotgun blast.

On the evening of April 17, 1982, Huntsville Police Officers Billy Hancock and Compton Owens had just finished investigating a domestic disturbance at Hampton’s residence in which Hampton had allegedly held Mary Jackson hostage at gunpoint until she found his wallet. This disagreement was settled and Hampton, who had been drinking, was polite and cordial to the police. No arrests were made and Hampton returned to his residence. The officers returned to a patrol car to complete a case report.

At that time, one of Mary Jackson’s sons reported that Hampton was “shooting”. The two officers cautiously approached Hampton’s front door. Before the officers reached the front porch a single shotgun blast rang out. Both officers were wounded by this single shotgun blast which went through the storm door of the residence and some shrubbery. When the officers were shot they were “in front of the door standing beside a bush.” Sylvia Jackson, who was standing “all of the way across the street” behind a car “had a little buckshot in her hand.”

In May of 1982, Hampton was tried and convicted in municipal court for assault in the third degree. That case involved Ms. Jackson.

In June, he was separately indicted for assault in the first degree in the cases involving Officers Hancock and Owens.

Hampton raised the issue of former jeopardy by a motion of autrefois convict filed before arraignment. After considering arguments and briefs presented by both parties, the trial judge overruled the motion. In June of 1983, Hampton was convicted for assault in the second degree for the shooting of Officer Owens.

In overruling the motion, the trial judge held:

“The Court upon review of the aforesaid Motion, finds the question raised by it to be a matter of law and not of fact. Upon further review, it is the finding of this Court that the offenses of Assault in the First Degree, Code of Alabama, § 13A-6-20, and Assault in the Second Degree, Code of Alabama, § 13A-6-21, contain statutory elements requiring proof of additional facts which were not present in the action before the Municipal Court of Huntsville, Alabama, including but not limited to: (1) different victims, (2) circumstances manifesting extreme indifference to the value of human life, (3) reckless act, and (4) serious physical injury.”

Just as the facts are not disputed, so also the positions of the parties are clear. Hampton contends that a shotgun blast injuring three individuals is merely one crime with three victims. The State argues that there are three separate crimes arising from a single act.

There is a conflict of authority as to whether there may be more than one prosecution of one person, who, by a single shot or blow or by the same act, has killed or injured different persons. 22 C.J.S. Criminal Law § 298(b) (1961). The courts have adopted three different attitudes in deciding whether multiple offenses were committed when a defendant assaulted more than one person by a single physical act.

“In situations where a defendant assaulted or killed more than one person by a single physical act, many courts, applying the view that a single act affecting multiple victims constitutes multiple criminal offenses, have determined that more than one assault or homicide was committed. A number of these decisions indicate a judicial concern for protecting the integrity of each person harmed. “Under similar circumstances, other courts have applied the view that a single act affecting multiple victims constitutes a single criminal offense in deciding that a defendant, by engaging in but one single physical act, committed only one assault or homicide. The rationale underlying some of these cases is that to hold otherwise would often have the consequence that the defendant would be punished disproportionately for a single criminal act.
“Faced with the question whether multiple offenses were committed when a defendant assaulted or killed more than one person by a single physical act, some courts have decided that multiple crimes are committed only if the defendant intended to harm more than one person.” Annot., 8 A.L.K. 4th 960, 963 (1981). (footnotes omitted).

In Alabama, the courts have traditionally and consistently held that a single act resulting in death or injury to multiple victims constitutes a single criminal offense.

“Sometimes as a part of a single transaction more than one offense is charged to have been committed. If a person does a single act which results in the injury or death of more than one person, only one offense can be fastened upon him. But if in that occurrence he shoots different persons by different discharges of his firearm, an offense can be fastened separately as to each person so injured or killed, although there was but one transaction, and upon a trial for one such offense the whole transaction is admissible.” Kilpatrick v. State, 257 Ala. 316, 318, 59 So.2d 61 (1952).

See also Gunter v. State, 111 Ala. 23, 25-26, 20 So. 632 (1896) (“It is the settled rule of this court, that a defendant cannot be lawfully punished for two distinct felonies, growing out of the same identical act, and where one is a necessary ingredient of the other.... So, it has been held, that where the same act of unlawful shooting resulted in the death of two persons, an acquittal or conviction on the trial of one would be a good defense on a second trial for the alleged murder of the other, for the reason that the killing constituted but one crime, which could not be subdivided and made the basis of two prosecutions. Clem v. The State, 42 Ind. 420. And again, where one blow produces two separate assaults and batteries on two different persons, a conviction of one may be pleaded in bar to an indictment for the other, for the reason that the defendant cannot be punished for two distinct assaults growing out of the same identical act.”); Ben v. State, 22 Ala. 9 (1853) (Indictment charging defendant-slave with administering poison to white persons was not duplicitious and charged only one offense); Windham v. State, 41 Ala.App. 280, 281-82, 129 So.2d 338 (1961) (Automobile collision in which four individuals were killed, court noted, “Where the same act, design, and impulse results in the killing of more than one person, it is nevertheless but one act with one single crime resulting”); Hurst v. State, 24 Ala.App. 47, 49,129 So. 714 (1930) (“If upon the trial of the issue presented by the plea it should appear that defendant killed both Malón Farmer and Dewy Cox, with a formed design as to each, the plea would fail. Per contra, if it should appear that the defendant, while defending himself from an assault by Farmer, without formed design as to Cox, killed him also, there would be but one offense. Defendant could be tried but once for the killing of both.” The court stated the rule: “Where a man kills two men in quick succession, with a formed design as to each man, it constitutes two offenses. But where the killing is pursuant to and is a continuation of the assault and done under the impulse of the same design, it is but one act.”); Moss v. State, 16 Ala.App. 34, 35, 75 So. 179, cert. denied, 200 Ala. 700, 76 So. 998 (1917) (“It is true that the same person may at the same time and in the same transaction commit two or more distinct criminal offenses; as in an affray a person shoots and kills one person, and by a second act shoots and wounds another; but each act must necessarily separately have all the elements of a crime, and each must be a separate act.”). See also Free v. State, 455 So.2d 137 (Ala.Crim.App.1984).

Although most of these eases were cited by Hampton in his appellate brief, the State has made no attempt to distinguish them. From this we can only conclude that the State found nothing to distinguish the above-cited cases from the one on appeal. Reluctantly, we have reached this same conclusion.

We are thoroughly convinced that the view that each injury is to be regarded as constituting a separate or distinct offense is sustained by the weight of authority and by the better reason. Berry v. State, 195 Miss. 899,16 So.2d 629 (1944). However, it is not the law in this state. We respectfully urge our Supreme Court to adopt this view.

Yet, despite our dissatisfaction with the current state of the law, we are bound by the decisions of our Supreme Court. Alabama Code § 12-3-16 (1975). This Court has no authority to declare unsound and overrule cases of the supreme court. Hall v. State, 29 Ala.App. 588, 199 So. 744 (1940).

Even though three people were wounded by the single shotgun blast, this constitutes but a single offense under Alabama law. Hampton could only be legally prosecuted for one offense. The judgment of the circuit court is reversed and rendered.

REVERSED AND RENDERED.

All Judges concur.


text:
    James W. JOHNSTON, alias v. STATE.
    4 Div. 159.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-888.

      Allen Edward Cook and Benton Persons, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

James W. Johnston was indicted for the capital murder of one Mildred Hart in violation of § 13A-5-40(a)(8), Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and after a hearing on aggravating and mitigating circumstances he was sentenced to life imprisonment in the penitentiary without the benefit of parole.

This case arose out of a homicide which occurred on May 15, 1982, in Andalusia, Alabama. The morning of May 15, Mrs. Hart had been to the grocery store and to visit a friend, Mary Braxton, before returning home. The record shows that Mrs. Hart left Mary Braxton’s home at sometime around eleven o’clock. The record shows that as Mrs. Hart was entering her home to unload her groceries she was attacked. The perpetrators of the crime tied electrical cord around her wrists and ankles, tied her to the corner posts of her bed, and raped her. She subsequently suffered death by ligature strangulation. Mrs. Hart was carried from her bedroom to the bathroom and placed face down in a bathtub half-full of water. Dr. Thomas Gilchrist of the Alabama Department of Forensic Sciences established the time of death to be within four hours either before or after twelve noon on May 15, 1982.

Early Sunday morning, May 16, 1982, Mary Braxton became worried about Mrs. Hart since she had not heard from her that morning. She testified that they made a regular practice of calling one another every morning to make sure everything was all right. She telephoned Mrs. Hart several times and there was no answer. She then telephoned a neighbor of Mrs. Hart and asked the neighbor to meet her at Mrs. Hart’s home. As the two women were walking through the garage of the Hart residence they noticed a bag of groceries in Mrs. Hart’s car. They called for Mrs. Hart, then when they did not get a response opened the door of the home and stepped into the kitchen. Upon entering they saw groceries littering the floor and noticed a broken window in the kitchen. They immediately left the home and called the police.

Due to an error in the trial of the case, all issues of error except the following have been pretermitted from discussion.

I

The appellant contends that three pre-ar-rest statements made by him to police officers were improperly admitted at trial for consideration by the jury due to several reasons.

(A)

The appellant first contends that these statements were made at a time when the appellant was in unlawful custody and thus they are inadmissible. The record shows that on the afternoon of May 16, 1982, the day the murder was discovered, Investigator Treadaway observed the appellant make approximately eight trips past the Hart residence while the investigation was in progress, several times venturing inside an area roped off for police personnel only. Treadaway talked to the appellant at one point and the appellant stated that he had not seen anyone strange in the neighborhood. Later the same afternoon Treada-way went to the boarding house where appellant lived to talk with the appellant. When the appellant appeared, Treadaway asked him if he could talk with him, and at that point the appellant immediately and spontaneously said that he did not rape the woman, he did not kill her, and he did not drag her to another room. (R. 167, 392, 402) At this point the appellant was not in custody, under arrest, nor restrained of his freedom in any way. (R.166) The appellant was read his rights at this point, which he stated he understood, and agreed to go downtown for fingerprinting after being cautioned that he did not have to go. (R.168)

The appellant made a second statement that he did not rape that woman and he did not kill her (R. 402) on the way to the police station. This statement was also spontaneous, voluntary, and not prompted by interrogation. (R. 398)

The appellant made a third statement while being fingerprinted. This statement was also spontaneous, voluntary, and not prompted by any interrogation. The appellant stated that he did not rape the woman, did not kill her, and did not drag her to the closet. (R. 402)

In order to deem a pre-arrest statement inadmissible we must determine whether the challenged statement was made pursuant to a custodial interrogation or custodial setting. A custodial interrogation has been defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The procedural safeguards outlined in Miranda do not apply to “traditional investigatory functions (such) as general on-the-scene questioning.” Hall v. State, 399 So.2d 348 (Ala.Cr.App.1981). The facts of each case must be examined in order to determine whether the defendant was questioned merely as part of a general investigation or was subjected to a custodial interrogation. See Cork v. State, 433 So.2d 959 (Ala.Cr.App.1983); Hall, supra. Moreover, a voluntary, spontaneous statement made by a defendant to police officers, before any questions have been asked, is admissible against the defendant even though he has not been given his Miranda warnings. Jelks v. State, 411 So.2d 844 (Ala.Cr.App.1981); Ervin v. State, 399 So.2d 894 (Ala.Cr.App.), cert. denied, 399 So.2d 899 (Ala.1981); Terry v. State, 397 So.2d 217 (Ala.Cr.App.), cert. denied, 397 So.2d 223 (Ala.1981).

In the present case the appellant was not subject to any interrogation by law enforcement personnel. He voluntarily agreed to go to the police station after being cautioned that he did not have to go. He voluntarily and spontaneously made the statements. He was read his Miranda warnings which he stated he understood. Furthermore, after having made the three statements, none of which were prompted by police questioning, he was taken back to his place of residence. After reviewing the totality of the circumstances involved in this case, we find no element of coercion or custody present. Therefore, the statements were properly admitted by the trial court.

(B)

The appellant also contends that these statements should not have been admitted due to the appellant’s defective mental condition.

The mental subnormality of a defendant does not in and of itself render a statement involuntary. Shorts v. State, 412 So.2d 830 (Ala.Cr.App.1981); Ellis v. State, 398 So.2d 402 (Ala.Cr.App.1981) and cases cited therein. The totality of the circumstances under which the statement of the appellant was given clearly shows that it was voluntarily given after a knowing and voluntary waiver of rights despite the fact that the appellant had a full scale I.Q. of sixty-seven and was classified as borderline mentally retarded. See Jackson v. State, 375 So.2d 1271 (Ala.Cr.App.), cert. denied, 375 So.2d 1274 (Ala.1979); Rhine v. State, 360 So.2d 1056 (Ala.Cr.App.), cert. denied, 360 So.2d 1060 (Ala.1978); Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978). There was no interrogation of the appellant whatsoever in this case. His statements were purely spontaneous and voluntary, which distinguishes this case from others in which this court has held statements to be inadmissible due to mental defects. See Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980); Garrett v. State, 369 So.2d 833 (Ala.1979). Moreover, this court has held statements to have been voluntarily given after a knowing waiver of rights in other cases in which the defendant had a much lower I.Q. than in the present case. See Shorts, supra; Brown v. State, 393 So.2d 513 (Ala.Cr.App.1981).

II

The appellant argues that the arrest warrant was insufficient as being conclusory and therefore his subsequent arrest was invalid. In connection with this argument the appellant contends that a statement made by the appellant subsequent to his arrest was not admissible.

(A)

An affidavit which is conclusory on its face and an arrest pursuant to such warrant will be deemed invalid. However, this court has held that in such instances the affidavit may be cured by oral testimony of the issuing magistrate at trial. The testimony should be such that the magistrate testifies that the officer to whom the warrant was issued recited sufficient reason for the issuance of the warrant. Malone v. State, 51 Ala.App. 19, 282 So.2d 367 (Ala.Cr.App.), cert. quashed, 282 So.2d 371 (Ala.1973); Morrison v. State, 398 So.2d 730 (Ala.Cr.App.1979), reversed on other grounds, 398 So.2d 751 (Ala.1981).

In this case Eleanor Rowell, the issuing clerk, was called to the stand to testify and although she stated that she did not recall if Officer Treadaway recited any independent facts sufficient to establish probable cause for arrest, the trial judge ruled that such cause was presented through testimony. We agree with the trial judge on this matter. There was sufficient evidence of probable cause presented to justify the issuance of the arrest warrant.

(B)

Moreover, in this case there was sufficient probable cause to arrest the appellant without a warrant pursuant to § 15-10-3(3), Code of Alabama 1975. This section states that an officer may arrest without a warrant when a felony has been committed and he has reasonable cause to believe that the suspect committed the act.

In this case Officer Treadaway knew of the statements made by the appellant on May 16; he had in his knowledge that Mrs. Hart had been harassed by the appellant in the recent past; he saw the appellant make more than eight trips past the Hart residence while the investigation was in progress, several times venturing inside the roped off area for police personnel only; the investigation had revealed several reddish-brown facial hairs found in the Hart residence and the appellant had a beard which matched the color. Therefore, under these circumstances, the officer had reasonable cause to arrest the appellant and the subsequent arrest was valid.

(C)

The appellant contends that a statement made by the appellant after his arrest should not have been admitted due to the invalidity of arrest and therefore demands reversal of the judgment.

We have held the arrest to have been validly made, therefore we will consider whether the appellant’s statement was admissible as being a voluntary statement. The record shows that when the appellant was arrested he was advised of his Miranda warnings and taken to the hospital to obtain fingernail scrappings, blood tests, nasal sample, and hair samples.

Investigator Don Tucker of the Alabama Bureau of Investigation testified that while at the hospital the appellant made a statement to him. He testified that the statement took place approximately one hour after the time of arrest; that no one offered the appellant any reward or hope of reward to make a statement; that no one threatened the appellant; that the statement was not subject to any interrogation and was freely and voluntarily given. He further testified that when he entered the examining room where the appellant was waiting on the doctor, that the appellant asked him who he was, if he was the one that arrested him. When Investigator Tucker told the appellant who he was the appellant stated, “Well, I’m your man. It took you three days to get me, but you’ll never convict me because they say I’m crazy.” (R. 447)

This court has held on numerous occasions that voluntary statements, which are not the object of any threat or duress are admissible. It is a well settled rule of law in Alabama that a statement made subsequent to arrest is prima facie involuntary and inadmissible at trial, and that the State must demonstrate voluntariness and a Miranda predicate in order to get admission of the statement. Thomas v. State, 373 So.2d 1167 (Ala.1979); Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (Ala.1976). The voluntariness of a statement is, however, a question of law to be determined by the trial court upon preliminary proof and that court’s decision will not be disturbed on appeal unless it appears contrary to the great weight of evidence, or is manifestly wrong. Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.) cert. denied, 339 So.2d 1070 (Ala.1976); Daniels v. State, 53 Ala.App. 666, 303 So.2d 166 (Ala.Cr.App.1974); Stewart v. State, 49 Ala.App. 681, 275 So.2d 360 (Ala.Cr.App.1973).

There is ample evidence whereby the court could have determined that appellant’s statement was voluntarily given. Thus, the trial court’s decision on this issue must be upheld.

Ill

The final issue to be determined on this appeal is whether or not the trial court erred to reversal in allowing the prosecution to introduce a prior inconsistent statement of a defense witness. The appellant argues that the prosecution failed to lay a proper predicate to introduce the prior inconsistent statements of defense witness William C. Metcalf, the owner of the boarding house where the appellant lived at the time the crime was committed.

Mr. Metcalf testified as follows on direct examination (R. 633, 634):

“Q All right, sir. Now do you remember the Saturday before they found her body on Sunday?
“A Yes, sir.
“Q All right, sir. Was J.W. living at your boarding house then?
“A Yes, sir.
“Q All right, sir. What time do ya’ll serve lunch at your boarding house? “A Eleven-thirty.
“Q And did you serve at eleven-thirty on May the 15th?
“A Yes, sir. Now I couldn’t say that it was exact, but eleven-thirty was our time to serve lunch and it was approximately eleven-thirty. It might have varied five minutes one way or the other, but it was approximately eleven-thirty.
“Q All right. And did J.W. Johnston eat lunch at the boarding house on that Saturday, May the 15th?
“A J.W. Johnston ate lunch there that day.
“Q All right, sir. Now, what time did you serve supper or the evening meal? “A Four-thirty.
“Q All right. On Saturday, May the 15th, did J.W. Johnston eat supper at your boarding house?
“A He ate supper, yes, sir.”

On cross-examination Mr. Metcalf testified as follows (R. 637, 638):

“Q Okay. And it is your testimony that he was at the boarding house for-lunch on the 15th, which was at eleven-thirty, is that correct?
“A That’s correct.”

This was the only exchange that took place on cross-examination concerning the appellant’s eating lunch at the boarding house or whether or not Mr. Metcalf had made a prior statement about this to police officers. After the defense rested their case, the State called two rebuttal witnesses— Officer Treadaway and Investigator Tucker.

The following exchange took place upon the direct examination of Officer Treada-way (R. 650-652):

“Q Billy, do you recall having a conversation with — first of all, do you know Mr. William C. Metcalf?
“A Yes, sir.
“Q Where does he live or where did he live back on May the 16th and May the 17th of 1982?
“A He lived on Watson Street, just below the Hart residence.
“Q And did you have a conversation with Mr. William Metcalf back on May the 16th of 1982?
“A Yes, sir, I did.
“Q Did you go to the Metcalf Boarding Home on that occasion?
“A Yes, sir, I did.
“Q Do you recall during the course of that conversation, asking Mr. Metcalf whether the Defendant, J.W. Johnston, had eaten lunch there at the boarding house?
“A Yes, sir....
“MR. COOK: Wait a minute now. That’s — the predicate hadn’t been laid for this. He didn’t ask Mr. Metcalf about that. He would first have to ask him.
The predicate hadn’t been laid for what they....
“THE COURT: Mr. Metcalf said he did eat there.
“MR. COOK: Wait a minute. But he
“THE COURT: Take the jury out.
“MR. LANIER: I think the State is entitled to have a witness to come forward to testify as to the conversation he did have with Mr. Metcalf.
“MR. COOK: He didn’t ask Mr. Met-calf, Mr. Metcalf_
“THE COURT: He didn’t, but ....
“MR. COOK: I know, but....
“THE COURT: ... you did.
“MR. COOK: Well, but on cross, he was supposed to say, Mr. Metcalf, didn’t you tell Officer Treadaway that — whatever it is and Metcalf say, No, I didn’t do that. Then they come in to prove that he did. They haven’t got their little act — hadn’t taken each step in sequence and we object to it.
“THE COURT: Well, you want to go ahead with it?
“MR. LANIER: Yes, sir.
“THE COURT: Okay. Overrule the objection, then.
“MR. PERSONS: We respectfully except.
“THE COURT: Bring them back in. (continued direct examination)
“Q I believe I ask you if you had a conversation with Mr. Metcalf on May the 16th, 1982....
“A Yes, sir.
“Q And during the course of that conversation, do you recall hearing Investigator Tucker ask Mr. Metcalf, ‘Did Bell and Johnston eat there on Saturday?’
“A Yes, sir.
“Q And do you recall Mr. Metcalf stating that, ‘They did not eat lunch there?’
“A He said he did not believe they eat lunch there, but he knowed they eat supper there.”

After cross-examination of Officer Treadaway, the State called Investigator Tucker to the stand. He recited the same facts as Officer Treadaway, to which the defense again objected and was again overruled.

We must agree with the appellant’s argument on this issue. The trial court did err in overruling his objection to this prior inconsistent statement. Generally, a witness, who on cross-examination denies that he made a statement out of court which is inconsistent with his testimony on direct examination, may be impeached by use of another witness to whom the inconsistent statement was made. However, a witness cannot be impeached by proof of contradictory statements made by him, whether oral or in writing, without first asking him whether he made such declarations, specifying with reasonable certainty the time when, the place where, the person to whom such statement was made and the substance of such statement. Scrafford v. State, 414 So.2d 179 (Ala.Cr.App.1982); Junior v. State, 411 So.2d 850 (Ala.Cr.App.1982); Starling v. State, 398 So.2d 337 (Ala.Cr.App.), writ denied, 398 So.2d 342 (Ala.1981); Walker v. State, 369 So.2d 814 (Ala.Cr.App.1978), reversed, 369 So.2d 825 (Ala.1979), on remand, 369 So.2d 826 (Ala.Cr.App.1979); Gamble, McElroy’s Alabama Evidence, § 157.01(1) (3rd Ed.1977).

This error could have easily been cured by recalling to the stand all of the necessary witnesses, and if the impeached witness denied having made the contradictory statement then any predicate error is cured. Gamble, McElroy’s Alabama Evidence, § 157.01(8, 9) (3rd Ed.1977).

This testimony was prejudicial to the appellant. Earlier testimony by Dr. Thomas Gilchrist had established the time of death to be within four hours, before or after, twelve noon on May 15, 1982. Mary Braxton had earlier testified that the vie-tim, Mrs. Hart, had left Ms. Braxton’s home at approximately eleven o’clock that same morning. The trial court’s allowing the prior inconsistent statement to be admitted served to destroy the appellant’s only evidence of alibi.

After reviewing the applicable law and authority, we must hold that the trial court was in error on this issue. Therefore, the judgment of the trial court is due to be and is hereby reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.

TAYLOR, J., concurs in result only.


text:
    Jerry Paul WATKINS v. STATE.
    4 Div. 261.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 20, 1984 Alabama Supreme Court 83-920.

      Michael Crespi, Headland, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Jerry Paul Watkins appeals from the revocation of his probation. The only issue on appeal is whether the trial court had jurisdiction to order the revocation.

The State’s sole witness at the revocation hearing was Sheriff J.F. Welcher. The sum total of Welcher’s testimony is that he was notified by the Georgia authorities that Watkins was serving time in Georgia for an aggravated assault. One of Welch-er’s deputies subsequently traveled to Augusta, Georgia, and picked up Watkins.

After the State rested, Watkins called Robert McCullough, a probation officer. Although McCullough was not the probation officer assigned to Watkins’ case, he had brought to the hearing the file compiled by Watkins’ probation officer. By referring to this file, McCullough testified that Watkins’ probation officer, a Mr. Edwards, “in his report or in the file, showed (Watkins) was declared delinquent June 30 of ’81. And, delinquent means that his time stops.” Watkins’ delinquency status “was entered in the computer in Montgomery in our central office.” McCullough further stated:

“Now, I don’t know what the date of the delinquency report, of the report we are using here this morning. The last one we got, this is what we call the Court’s Order of arrest, because our regular forms, we don’t like to send them out of state. We ask the Judge to sign a copy and this was signed October 11, 1983, in order for the Sheriff to be able to go get him.”-

The record discloses that Watkins pled guilty to possession of marijuana on May 1, 1978, and was sentenced to three years’ imprisonment. On June 8, 1978, this sentence was suspended and Watkins was placed on probation for four years.

Watkins contends that the trial court lacked jurisdiction to revoke his probation because the bench warrant for his arrest was not issued until after the expiration of his probation period. The State counters with the argument that Edwards’ (the probation officer) notation that Watkins was delinquent was sufficient to toll the running of Watkins’ probation period.

The general rule is that a revocation proceeding must be initiated prior to the date of the offender’s release from probation.

“Just as wrongful conduct which is the basis of a revocation must generally occur during the period of probation or parole, the vast majority of American jurisdictions hold that revocation proceedings must be initiated prior to the date of the offender’s release from probation or parole. What this means is that process sufficient to begin revocation proceedings must issue before the end of the probation or parole term. Jurisdictions have adopted a variety of ways to commence revocations. The most common methods include a summons, arrest warrant, warrantless arrest, show cause order, and a motion to revoke.”

N. Cohen & J. Gobert, The Law of Probation and Parole Section 11.01 at 525-26 (1983) (footnotes omitted) (emphasis added). See also Annot., 13 A.L.R.4th 1240 Sections 6-8 (1982).

Alabama Code Section 15-22-54(c) provides: “At any time during the period of probation or suspension of execution of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence.” (Emphasis added.) Under Section 15-22-54(d), a probationer may be arrested without a court issued warrant if the arresting officer has a written statement from a probation officer “setting forth that the probationer has, in (the probation officer’s) judgment, violated the conditions of probation.” If the arresting officer is also the probation officer, however, no such statement is necessary. Dietz v. State (Ms. 8 Div. 866, March 20, 1984) (Ala.Cr.App.1984).

Section 15-22-54(c) expressly applies only during the probation period. Although Section 15-22-54(d) is not expressly limited to the probation period, that limitation is implicit in its wording — one is a probationer only during the period of probation. We think the clear intent of Section 15-22-54(c) and (d) is to require that an official act sufficient to begin revocation proceedings be done before the end of the probation period. The probation period is not tolled until this act occurs. See Peoples v. State, 439 So.2d 774 (Ala.Cr.App.1983) (holding that, “(a)s a practical matter, the running of the period of probation must be considered tolled when a warrant of arrest for violation of probation is issued by the court”, or when a probation officer has prepared a written statement in conformance with Section 15-22-54(d) and delivered it to an officer with arrest powers along with a request to arrest the probationer).

Watkins’ four-year period of probation was to have ended June 8, 1982. Clearly, the bench warrant dated October 11, 1983, was not issued within the probation period and, in view of the express language of Section 15-22-54(c), was not valid. Hamilton v. State, 441 So.2d 1035 (Ala.Cr.App.1983), holding that probation revocation proceedings may properly be initiated after the actual probation period has expired where there has been no formal discharge from probation, is not applicable in this case. Section 15-22-54(a) provides that the probation period “may be continued, extended or terminated; provided, that in no case ... shall the maximum probation period of a defendant guilty of a felony exceed five years.” (Emphasis added.) Watkins was placed on probation June 8, 1978. The maximum five-year period expired June 8, 1983, well before the bench warrant was issued.

The question in this case is whether the notation in the probation officer’s file was sufficient to initiate revocation proceedings and toll the probation period. Determining whether a probation period has been tolled is very similar to determining whether the statute of limitations has been tolled. In criminal cases, the statute of limitations is tolled only when prosecution is commenced. See Alabama Code Sections 15-3-1, 15-3-2 (1975); Bryant v. State, 158 Ala. 26, 48 So. 543 (1909). Prosecution may be commenced “by finding an indictment, the issuing of a warrant or by binding over the offender.” Section 15-3-7. Obviously, a notation in the prosecutor’s file that he intended to present the case to the Grand Jury or a notation in a police officer’s file that a certain person committed the offense will not commence prosecution and thereby toll a statute of limitations.

By the same token, the probation officer’s notation in his file that Watkins was delinquent simply was not sufficient to initiate revocation proceedings and toll the running of the probation period. Section 15-22-54 clearly requires some overt or affirmative act which will officially begin revocation proceedings. Even listing Watkins as delinquent in the Probation Office computer does not rise to this level. Since Watkins’, probation period was never properly tolled, the trial court had no jurisdiction to revoke that probation almost one and one-half years after its expiration. See Wilson v. State, 417 So.2d 627 (Ala.Cr.App.1982).

We note that McCullough mentioned in his testimony that a warrant was issued for Watkins’ arrest on November 7, 1980. That warrant, however, is not in the record before us and the State has made no argument that it tolled the running of Watkins’ probation period. Even if this warrant were properly before us and even if we determined that it tolled the probation period, a reversal would still be necessary in this case. The record is totally devoid of any evidence other than hearsay concerning Watkins’ Georgia conviction. While the formal rules of evidence do not have to be strictly adhered to in a probation revocation hearing, Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Bullock v. State, 392 So.2d 848 (Ala.Cr.App.1980), cert. denied, 392 So.2d 852 (Ala.1981), “Hearsay information may not be used to furnish the sole basis of the revocation.” Berry v. State, 417 So.2d 609, 610 (Ala.Crim.App.1982); Hill v. State, 350 So.2d 716 (Ala.Cr.App.1977).

For the reasons stated above, the judgment of the circuit court revoking Watkins’ probation is reversed.

REVERSED AND REMANDED.

All Judges concur.