author: BOWEN, Presiding Judge. BOWEN, Presiding Judge.

text:
    Louis CRAWLEY, Jr. v. STATE.
    6 Div. 56.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1091.

      Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the unlawful possession of pentazocine. Sentence was twenty years’ imprisonment as an habitual offender.

On appeal the defendant argues that there was no probable cause for the initial stop.

Birmingham Police Lieutenant Charles H. Akins testified that on April 8, 1982, while he was driving toward the police station, Reverend Hamilton, the pastor of a church, “ran up and hollered ... and he pointed out a pickup truck that had stolen a battery out of a parking lot of the church.” Hamilton was running from the parking lot. Lieutenant Akins stopped the truck in which three people were riding. The driver got out and approached the officer. Lieutenant Akins searched him for weapons. As the officer turned towards the passenger side of the vehicle to look for the battery, the defendant got out of the truck. The lieutenant searched the defendant for weapons and found a hard object in his pocket which “could have been a knife.” The object was a medicine bottle which Lieutenant Akins opened, observing tablets which he recognized as “T’s” and “Blues”. The defendant was then placed under arrest. The tablets contained the controlled substance pentazocine, commonly referred to as talwin.

The defendant contends that the arrest was without probable cause because the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was not satisfied.

The courts have drawn a distinction between the “criminal” or “underworld” informant and the average citizen who by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty. W. LaFave, 1 Search and Seizure, Section 3.4 (1978). The veracity of the “citizen-informant” is easily established, for “the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be case.” 1 Search at 592 and vol. 3 at 82. Establishing the citizen-informant’s basis of knowledge presents no major problem. “Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it.” United States v. Bell, 457 F.2d 1231 (5th Cir.1972); 1 Search at 602-06.

However, to stop a person for questioning or investigatory detention does not require probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Bagony v. City of Birmingham, 371 So.2d 80 (Ala.Cr.App.1979); Alabama Code Section 15-5-30 (1975); 3 Search Sections 9.1 through 9.6. The officer need only be able to articulate specific facts and inferences that lead to a reasonable suspicion of criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1879. The degree of reasonable suspicion necessary to make a stop was articulated in United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-695, 66 L.Ed.2d 621 (1981): “(b)ased upon the whole picture the determining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

“A policeman who lacks the precise level of information necessary for probable cause to arrest is not required simply to shrug his shoulders and allow a crime to occur or a criminal to escape, and a brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in the light of the facts known to the officer at the time.”
6A C.J.S. Arrest, Section 38 (1975).

“This ‘reasonable cause’ for a stop and frisk need not be based only on the officer’s personal observation.” Butler v. State, 380 So.2d 381, 383 (Ala.Cr.App.1980). Information from citizen-informants may supply the necessary reasonable suspicion. Oliver v. State, 385 So.2d 69 (Ala.Cr.App.1980). See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The investigatory stopping in this case was justified by specific and articula-ble facts which, taken together with the rational inferences from those facts, reasonably warranted the intrusion. The officer was stopped by a known individual (as compared to an anonymous informant) who approached him and stated that a specific crime had just been committed by individuals in a particular truck which he pointed out to the officer. The officer’s conduct was neither arbitrary nor harassing and the need for immediate action was imperative. Consequently, the initial detention was justified. See also United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir.1978), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978); Bell v. United States, 280 F.2d 717 (D.C.Cir.1960).

Terry authorized a limited protective search for concealed weapons (a frisk) “(w)hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.” 392 U.S. at 24, 88 S.Ct. at 1881. “So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.” Adams, 407 U.S. at 146, 92 S.Ct. at 1923. Section 15-5-31, Code of Alabama 1975, authorizes a search for weapons if the officer “reasonably suspects that he is in danger of life or limb” when he has properly stopped a person for questioning.

The officer’s frisk for self-protection was justified. He had a legitimate basis for stopping the vehicle and being in immediate proximity to its occupants. Terry, 392 U.S. at 32, 88 S.Ct. at 1885 (J. Harlan, concurring). The incident occurred at 8:00 at night and the vehicle stopped by the officer contained two males and one female. Officer Akins testified that as he started around the side of the truck the defendant “got out presumably to see what I was doing and so forth.”

Officer Akins stopped the truck on the suspicion that a theft of an automobile battery had been committed. The comments of People v. Myles, 50 Cal.App.3d 423, 123 Cal.Rptr. 348 (1975), are applicable: “It is reasonable for an officer to believe that a burglar may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons, and that a pat down search is necessary for the officer’s safety.” (emphasis added) See also United States v. Stevens, 509 F.2d 683 (8th Cir.1975). The pat down was reasonable under these conditions. Officer Akins’ conduct must be viewed “in terms of what could be considered reasonable under the circumstances then existing”, without benefit of hindsight reasoning. Stevens at 688.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Presiding Judge.

In Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court of the United States abandoned the two-pronged test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and “reaffirmed the totality of the circumstances analysis that traditionally was informed probable cause determinations.” Applying that practical, common sense approach to the facts of this case only strengthens our finding of probable cause to arrest.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Randy GARRETT, alias Randy O’Neal Garrett v. STATE.
    6 Div. 104.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1088.

      Hugh Beaird of Selman, Beaird & Sel-man, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and Jennifer M. Mullins, Asst. At-tys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted for the capital murders of Marie Woods Yintson and Dennis Robbins in violation of Section 13-ll-2(a)(10), Code of Alabama 1975. A jury convicted him for manslaughter in the first degree for the killing of Ms. Yintson and for murder in the first degree for the killing of Mr. Robbins. Sentences were ten years’ imprisonment and life imprisonment respectively. Five issues are presented on appeal.

I

The defendant contends that the indictment does not allege any aggravating circumstance to support the trial court’s submission of the capital murder charge to the jury.

The indictment tracks the language of Code of Alabama, Section 13-ll-2(a)(10), defining the capital offense of “(m)urder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts.” Clearly, the indictment alleged the aggravating circumstance relied on to elevate a non-capital offense to a capital offense. Ex parte Kyzer, 399 So.2d 330, 334-39 (Ala.1981); Dobard v. State, 435 So.2d 1338 (Ala.Cr.App.1982). Specifically, the aggravation averred in the indictment is found in the phrase “did, by one act or a series of acts, unlawfully and with malice aforethought, intentionally kill” Marie Woods Vintson and Dennis Robbins.

The defendant alleges that Section 13-ll-2(a)(10), under which the indictment was drawn, was not in force at the time of the offense (February 17, 1978). This section became effective on March 7, 1976. Alabama Code Section 13-11-9 (1975).

II

The defendant’s application for treatment as a youthful offender (Alabama Code Section 15-19-1 (1975)) was not denied solely because of the nature of the offense. The record does show that the trial judge stated that he would “not give the reason (for his ruling) because of the nature of the offense.”

The record reflects that the trial judge ordered an investigation by the pardon and probation officers of Walker County “for the purpose of determining whether the defendant should be tried and sentenced as a Youthful Offender.” The judge’s order denying youthful offender treatment reflects that the court conducted a hearing and heard evidence “as presented in support of said application.”

Summarizing what we said in Morgan v. State, 363 So.2d 1013, 1015 (Ala.Cr.App.1978), the youthful offender act does not require a formal hearing or investigation and the trial judge is not required to state his reasons for denying youthful offender status. Here, it does not affirmatively appear that the decision of the trial judge was arbitrary or made without some examination or investigation. The record provides no basis for overturning the denial of the defendant’s request for youthful offender status. Carthon v. State, 419 So.2d 293, 295 (Ala.Cr.App.1982).

Ill

The defendant argues that his incul-patory statement should have been suppressed because it was the fruit of an illegal arrest because the arrest warrant was not supported by probable cause. The trial judge found that “there is probable reason for issuance of arrest warrant and even if there were not probable cause to issue arrest warrant, Officer Cole had in his possession definite knowledge from the statement of Mr. Strickland that would allow him to make an arrest independent of the arrest warrant.”

Walker County Sheriff’s Investigator Frank Cole obtained a warrant for the defendant’s arrest on January 5, 1981, based on information he had received from a “confidential and reliable informant”, a portion of which he had corroborated. The informant stated that Jimmy Vintson had told him that the defendant shot Ms. Vint-son and Vintson shot Mr. Robbins. Cole verified the fact that Jimmy Vintson had purchased some shotgun shells from Richard Jeans at an unusual hour on the night of the homicides.

However, Cole did not arrest the defendant until January 8th, three days after he had obtained the warrant. In those three days, he obtained additional information which established probable cause to arrest the defendant for murder. Barr v. State, 409 So.2d 976 (Ala.Cr.App.1981); Knight v. State, 346 So.2d 478 (Ala.Cr.App.), cert. denied, 356 So.2d 765 (Ala.Cr.App.1978); Aaron v. State, 54 Ala.App. 71, 304 So.2d 625 (1974); Reese v. State, 49 Ala.App. 167, 269 So.2d 622, cert. denied, 289 Ala. 750, 269 So.2d 625 (1972). That additional information included: (1) a detailed statement from Tommy Strickland, who was present with Vintson and the defendant when the homicides were committed; (2) Ronald Lackey’s repudiation of his former statement supplying an alibi for the defendant, Vintson, and Strickland; and (3) toxicologist and pathologist reports of the manner in which the homicides had been committed which confirmed and corroborated Strickland’s account of the incident.

After Cole had obtained the arrest warrant but before he arrested the defendant, he had obtained sufficient information to make an arrest without a warrant pursuant to Section 15-10-3(4), Code of Alabama 1975, authorizing an arrest without a warrant when an officer “has reasonable cause to believe that the person arrested has committed a felony.” Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968). “Where probable cause for a warrantless arrest exists, the arrest is not invalidated because it was made pursuant to a warrant that turned out to be invalid.” United States v. Rose, 541 F.2d 750, 756 (8th Cir.1976), and cases cited. See also W. LaFave, 2 Search and Seizure 255 (1978).

IV

Since the defendant’s arrest was based on probable cause, Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), holding that a confession obtained after an illegal arrest is inadmissible, does not apply. Dejnozka v. State, 397 So.2d 240, 242 (Ala.Cr.App.), cert. denied, Ex parte Dejnozka, 397 So.2d 246 (Ala.1981).

V

The defendant argued at trial that his confession was taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because he “was not advised who or what agency would appoint him a lawyer or when the same could be accomplished.” On appeal, he contends that Brown v. State, 396 So.2d 137 (Ala.Cr.App.1981), controls.

In Brown, this Court condemned a Miranda warning which was subject to the construction that appointed counsel would be available only in the future. We specifically held that, where the accused was not informed that he had a right to refuse answering any questions until such time as he had an appointed attorney, his confession was not made pursuant to an intelligent and voluntary waiver.

The Miranda rights in this case are not subject to the criticism of those in Brown. On two separate occasions the defendant was specifically informed, “If you cannot afford to hire a lawyer, one will be appointed to represent you before being questioned if you wish.”

The Miranda warnings given the defendant were not deficient, for they fully informed the accused of his right to consult with an attorney prior to any questioning and did not link the offer of appointed counsel to some future time after interrogation. California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981).

“Prysock thus stands for the proposition that a Miranda warning is adequate if it fully informs the accused of his right to consult with an attorney prior to questioning and does not condition the right to appointed counsel on some future event. A Miranda warning need not explicitly convey to the accused his right to appointed counsel ‘here and now’, and to the extent that Lathers (v. United States, 396 F.2d 524 (5th Cir.1968)) and other precedents of this court require such explicit warnings, they are overruled.” United States v. Contreras, 667 F.2d 976, 979 (11th Cir.1982).

The warnings in Contreras were not as explicit as those given the defendant in this case.

VI

Under the circumstances of this case, the trial court did not err in refusing to grant the defendant’s motion to be allowed to inspect the notes used by Investigator Cole to refresh his memory when testifying as a witness.

At the hearing on the defendant’s motion to suppress his confession held outside the presence of the jury, Investigator Cole testified that his informant told him that Jimmy Vintson told the informant that the defendant shot Ms. Vintson rather than Mr. Robbins. Other evidence indicated that the defendant shot Mr. Robbins.

On recross examination of Cole, defense counsel inquired “one more time”, “Did your confidential informant say that Randy Garrett had shot Marie Vintson?” Cole responded, “I would like to have a recess to look over my notes before I answer that. I have some personal notes I would like to look at.”

After the recess, Cole testified that he “briefly” used his notes to refresh his memory and stated that his notes reflected “about what” he had already testified to before refreshing his memory on the narrow point in question.

“While it is true that a court’s refusal to permit defense counsel to see and examine a memorandum used by the witness on the stand to refresh his memory constitutes reversible error, . .. yet the rule is subject to reason Cooks v. State, 50 Ala.App. 49, 54, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973). “The right of a defendant to see and examine material used by a witness while on the stand to refresh his recollection is not an unbridled right but is subject to reasonable limitations.” Johnson v. State, 398 So.2d 393, 395 (Ala.Cr.App.1981); Russell v. State, 365 So.2d 343, 348 (Ala.Cr.App.1978); Hill v. State, 366 So.2d 296, 313 (Ala.Cr.App.1978), affirmed on other grounds, 366 So.2d 318 (Ala.1979). Here, we note that even if the trial judge abused his discretion that error was harmless to the defendant for the simple reason that the probable cause for the warrant had no effect upon the probable cause for the arrest. See Issue III of this opinion. Even excluding the information from the confidential informant, Investigator Cole had substantial and more reliable information upon which to base his determination of probable cause. For this reason, we find no error in the action of the trial judge.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HUBERT TAYLOR, Judge. HUBERT TAYLOR, Judge.

text:
    Charles Michael BREWER v. STATE.
    6 Div. 808.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 83-49.

      Joel L. Sogol of Sogol & Chandler, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L., Marston, III and Martha Gail Ingram, Asst. Attys. Gen., for appellee.
    Charles Freeman, Dist. Atty., and Thomas M. Smith, Chief Asst. Dist. Atty., amicus curiae.
   HUBERT TAYLOR, Judge.

Appellant was convicted of the murder of Diana Lynn Holland and sentenced to life imprisonment. He raises two issues on appeal: whether the empanelling of the grand jury which indicted him was illegal, and whether the evidence of his prior assault on another victim was improper. In our judgment, the grand jury was properly drawn and empanelled and appellant need not be reindicted, yet he is entitled to a new trial for the error of admitting the evidence of the collateral crimes.

Insofar as it relates to the issues on appeal, the State’s evidence established that the nude body of twenty-year-old Diana Lynn Holland was found by a fisherman under the Sipsey River bridge in Tuscaloosa County at 10:30 a.m. on July 15,1980. Miss Holland’s neck and left wrist were bound with handkerchiefs, her ankles were tied together with a black brassiere, and she was wearing one sandal. Strewn on either side of her body were a pair of crutches. Expert medical testimony established that the cause of death was strangulation.

During her lifetime, Miss Holland had been afflicted with cerebral palsy and had used crutches to walk. She had been acquainted with appellant and had lived in the same apartment complex with him. According to a statement appellant gave Tuscaloosa Sheriff’s investigators, Miss Holland had bought a stereo from appellant and had requested, the evening before her body was found, that appellant come by her apartment to check the stereo because it was not working. Appellant said the victim offered him a glass of lemonade, he drank it, and then he returned to his own apartment alone. He claimed that he was at home in bed by 10 p.m. that night.

Appellant denied that Miss Holland had ever been in his car, yet a consent search of his vehicle revealed that samples of hair on the trunk mat exhibited the same characteristics as known hair samples taken from the victim’s body. Fragments of hair matching the victim’s were also discovered on a roll of black electrician’s tape in appellant’s trunk. In addition, mechanic’s rags found at the scene with Miss Holland’s body contained the same chemical particles as similar rags in appellant’s car trunk.

Over appellant’s objection and after lengthy arguments were presented to the trial court, the State was allowed to call Ms. Wanda Sue Smith Reedy to the stand. Ms. Reedy testified that eight years earlier, when she was eighteen years old, she worked at the same company with appellant and dated him a few times. On December 17, 1973, as she was returning from work at 11:15 p.m., appellants car passed hers on the highway. Appellant turned on the interior light of his vehicle and pulled into a nearby church parking lot. Ms. Reedy followed him and parked her car next to his.

Appellant walked to Ms. Reedy’s vehicle, opened the door, told her to move over and put a knife to her throat. He began to choke her with an extension cord and, as Ms. Reedy struggled to get away, appellant struck her on the head with an unknown-object and she blacked out. When she regained consciousness, she was fully clothed but had only one shoe on, appellant was gone, and the keys to her car were missing. Ms. Reedy walked to a relative’s house nearby for help. Her car keys were later discovered in the trunk of her vehicle and a roll of white adhesive tape was found on the ground at the scene.

The trial court admitted the foregoing testimony with prior limiting instructions that the jury was to consider it “solely on the question of identity and intent or motive.” (R. 739)

I

Appellant claims that his plea in abatement was due to be granted because of alleged fraud in empanelling the grand jury which indicted him. He contends that one member of the grand jury venire had been illegally carried over from a preceding grand jury term in violation of § 12-16-70 (amended by 1981 Ala.Acts 1381, No. 788 § 2 (effective January 1, 1982)) and § 12-16-75 (repealed by 1981 Ala.Acts 1381, No. 788 § 8 (effective January 1,1982)). Those sections provided in pertinent part, the following:

“§ 12-16-70.
“At any session of a court requiring jurors for the next session, the judge ... shall draw from the jury box in open court the names of not less than 50 persons to supply the grand jury for such session.... ”
“§ 12-16-75.
“The names of all jurors drawn and summoned under this article who are not empanelled shall forthwith be returned by the judge to the jury box in open court, unless they are disqualified or exempt.”

Testimony on the plea in abatement established that Mr. Therman Lee was summoned as a potential juror for the first January term of the Tuscaloosa County grand jury. Judge Claude Harris, Jr. excused Mr. Lee from service and told him that he could serve on the grand jury for the next (second January) term. Thereafter, Mr. Lee’s name was given to the Circuit Clerk, who kept it until the following term of court.

Circuit Clerk Doris Turner stated that for the following term, that of the grand jury which handed down the indictment against appellant, the judge drew only forty-nine names from the jury box. The fiftieth name was that of Mr. Therman Lee, who had been carried over or “rescheduled” after being excused from service during the previous term.

Further testimony, taken in the light most favorable to the State, showed that Mr. Lee served on a grand jury during the second January term, but that he was not a member of the grand jury which voted to indict appellant or which heard evidence pertaining to the charges in the instant case.

Appellant argues that Mr. Lee’s being carried over from one grand jury term to the next contravened the statutory requirement that the names of those jurors who are not empanelled must be returned to the jury box. He also maintains that the “rescheduling” of Mr. Lee as the fiftieth potential juror for the succeeding term violated the statutory rule that the judge draw fifty names from the jury box in open court. Thus, appellant concludes, the indictment against him was returned by an illegally-constituted grand jury and was therefore due to be quashed.

Initially we noté that the provisions of §§ 12-16-70 and 12-16-75 are “directory merely and not mandatory.” Ala.Code § 12-16-90(a) (1975). Although case law has established some provisions to be mandatory, notwithstanding expressed legislative intent to the contrary, see Ziniman v. State, 186 Ala. 9, 65 So. 56 (1914) (requirement that defendant be served with jury list in capital case) (dicta), both the number of jurors drawn and the time of their drawing have been held to be merely directory and not to affect the legality of the panel. Dobbins v. State, 274 Ala. 524, 149 So.2d 814 (1963), cert. denied, 376 U.S. 923, 84 S.Ct. 681, 11 L.Ed.2d 617 (1964); Rector v. State, 11 Ala.App. 333, 66 So. 857 (1914).

Further, § 12-16-90(b) provides that

“The jurors selected, drawn, summoned and empaneled under the provisions of this article, whether at an earlier or later day than required by this article, must and shall in all respects be deemed legal and to possess in full in every respect power to perform all of the duties belonging to grand and petit jurors.” (Emphasis added.)

In our judgment, the fact that Mr. Lee’s name was drawn at a different time from the names of the other forty-nine venire members does not undermine the authority of the grand jury on which he served. The statutes concerning jury selection require only substantial compliance. Lehr v. State, 398 So.2d 791 (Ala.Cr.App.1981). There is no contention that Lee’s name was not originally drawn by the judge in open court, merely that it was drawn on a different occasion from the drawing of the other forty-nine names comprising the grand jury venire. See Ala.Code § 15-15-40 (1975).

Additionally, the trial court had the authority not to return Mr. Lee’s name to the jury box but to inform him that he could serve during the next term of court, according to § 12-16-63, Code of Alabama 1975, which states:

“(b) A person who is not disqualified for jury service may be excused from jury service by the court only upon a showing of undue hardship, extreme inconvenience or public necessity, for a period the court deems necessary, at the conclusion of which the person may be directed to reappear for jury service in accordance with the court’s direction.” (Emphasis added.)

Finally, it is our opinion that even if the summoning of the grand jury on which Mr. Lee served had been marred by a slight irregularity, the failure to comply with statutory requirements does not entitle appellant to relief in the absence of fraud. “Fraud used in this sense has been construed as encompassing more than criminal wiles: ‘Fraud is a relative term; it includes all acts and omissions which involve a breach of legal duty injurious to others.’” State ex rel. Gregg v. Maples, 286 Ala. 274, 280, 239 So.2d 198, 203 (1970) (quoting Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 227, 23 So.2d 874, 875 (1945) (emphasis added)).

Because Mr. Lee took no part in hearing the evidence of, or voting to indict appellant for, the instant offense, any irregularity relating to the grand jury of which Lee was a member cannot have affected appellant. As this court stated in Hammond v. State, 354 So.2d 280, 286-87 (Ala.Cr.App.1977), cert. quashed, 354 So.2d 294 (Ala.1977), cert. denied, 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d 115 (1978),

“As it relates to composition of grand juries, the fraud necessary to quash an indictment is construed by us to encompass only willful and deliberate omissions of persons eligible to serve which would result in some demonstrable prejudice to the appellant.” (Emphasis added.)

At the hearing on his plea in abatement, appellant demonstrated no prejudice and the trial court was thus correct in overruling the plea.

II

Appellant claims that the trial court erred by admitting evidence of the prior assault on Wanda Sue Smith Reedy. While in our judgment the question is extremely close, we conclude that any doubt about the admissibility of the testimony should, given the highly prejudicial nature of the evidence, be resolved in favor of the accused. On this basis, the conviction is reversed, and the cause remanded for a new trial.

The general rule is that evidence of other crimes not charged in the indictment is inadmissible if its only purpose is to show the bad character, inclination or propensity of the accused to commit the type of crime for which he is being prosecuted. Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947). On the other hand, if the defendant’s collateral misconduct is relevant and tends to show his commission of the current offense other than by suggesting that he is more likely to be guilty because of his past misdeeds, then the evidence is admissible. C. Gamble, McElroy’s Alabama Evidence § 69.01 (3d ed. 1977).

Many Alabama cases have adopted the following exceptions to the general rule, or tests for relevancy, to determine whether evidence of uncharged crimes is admissible:

“(1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes.”

E.g., State v. Bobo, 56 Ala.App. 622, 626, 324 So.2d 336 (1975) (quoting Wharton’s Criminal Evidence § 31).

Although exception number two, identity, is arguably the most nearly applicable in this case, we do not believe the admission of the evidence under review here is authorized by any of the categories. The first, res gestae, clearly does not apply; the offenses were separated by almost seven years’ time. Although that degree of remoteness alone does not operate to exclude the prior act, see Cofer v. State, 440 So.2d 1116 (Ala.Cr.App.1983), and affects its weight rather than its admissibility, see Wharton's Criminal Evidence § 260 at 621 n. 14 (C. Torcía 13th ed. 1972), the distance between the two offenses precludes their being considered as one continuing offense or part of the same res gestae.

The third exception, namely guilty knowledge, is not in issue here. Compare Dennison v. State, 17 Ala.App. 674, 88 So. 211 (1921) (guilty knowledge immaterial in prosecution for larceny) with Goodman v. State, 401 So.2d 208 (Ala.Cr.App.1981) cert. denied, 401 So.2d 213 (Ala.1981) (“Knowledge” a key element in prosecution for receiving stolen property).

Although the trial judge allowed the evidence to prove appellant’s intent, and the State argues that it was admissible on that basis, a closer examination of the “intent exception” reveals that it, too, is inapplicable because appellant’s intent was not at issue. Criminal intent can be inferred from the manner in which Diana Lynn Holland was killed and her body disposed of, especially in the absence of any claim or glimmer of evidence that the killing was inadvertent or in self-defense. “Where the requisite intent is presumed or inferred from proof of the criminal act itself or where the intent of the defendant is not in issue, evidence of other crimes is not admissible.” Wharton’s Criminal Evidence § 245 at 560 (C. Torcía 13th ed. 1972).

“When the element the State bears the burden of proof on can ‘be inferred from the act itself,’ the State may not use extraneous offenses as circumstantial evidence of that element in its case in chief.” Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Cr.App.1979). “[WJhen the act charged is not equivocal, but the criminal intent is a necessary conclusion from the act, this theory of other acts as showing intent may not be availed of.” McCormick on Evidence § 190 at 450 n. 42 (E. Cleary 2d ed. 1972). “The peculiarity of intent, as a factum proban-dum, is that an act is assumed as done by the defendant, and the issue is as to the kind of state of mind accompanying it.” 2 Wigmore on Evidence § 300 at 238 (Chadbourn rev. 1979).

A review of the foregoing authorities and the Alabama cases on this point indicates that the “intent exception” applies only if the defendant’s conduct is ambiguous, i.e., wrongful if done with an improper intent but not criminal if done innocently, see, e.g., Carlton v. State, 415 So.2d 1241 (Ala.Cr.App.1982) (defendant admitted act but claimed self-defense); Lucy v. State, 340 So.2d 840, 846 (Ala.Cr.App.1976), cert. denied, 340 So.2d 847 (Ala.1976) (if defendant admits shooting but contends it was accidental); Bobo v. State, supra (defendant admitted he was present at scene of robbery but claimed he acted under duress of older and larger companions), or if it becomes necessary to show a particular intent in order to establish the offense charged, see, e.g., Cofer v. State, supra (accused admitted altercation with victim but denied sexual motivation or encounter); Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975) (defendant’s attack on woman amounted to an assault but whether intent was to ravish, rob, or murder not clear); Wilkins v. State, 29 Ala.App. 349, 197 So. 75 (1940) (same).

Thus, when the defense is an outright denial of the act, such as by setting up an alibi, intent may not usually be proved by evidence of prior crimes. As Wigmore observes, “[T]he peculiar feature of this process of proof is that the act itself is assumed to be done. ...” 2 Wigmore on Evidence § 302 at 245 (Chadbourn rev. 1979) (emphasis in original).

In the case before us, appellant did not take the stand. Nevertheless, his statement to the Tuscaloosa authorities and the defense witnesses called at trial all tended to establish an alibi defense for him. Under these circumstances, there was no real dispute regarding the issue of criminal intent accompanying the killing of Diana Lynn Holland. Either appellant committed the act, in which case his intent was evident from its brutality, or he did not commit the act, in which case his intent as shown by the earlier assault was immaterial. See McCormick on Evidence § 190 at 452 (E. Cleary 2d ed. 1972).

The next “pigeonhole” advanced for the admission of appellant’s prior assault on Ms. Reedy is motive. As it applies to homicide cases this category also includes number seven, malice. See C. Gamble, McElroy’s Alabama Evidence § 70.01(12)(3) at 155 (3d ed. 1977).

In order for evidence of appellant’s assault on Ms. Reedy to have been admissible, it must have tended to show a motive for his assault on Miss Holland. See C. Gamble, McElroy’s Alabama Evidence § 69.-01(7) (3d ed. 1977). “Motive” has been defined as “the moving power which leads the mind to desire the result and form the purpose.” Bynum v. State, 348 So.2d 804, 819 (Ala.Cr.App.1976), cert. quashed, 348 So.2d 828 (Ala.1977). However, the first assault provides no inference as to what “moving power” may have “led [appellant’s] mind to desire [the death of Miss Holland] and [to] form the purpose [to kill her].” If anything, the two crimes can both be termed “senseless” precisely because they appear to be devoid of motive. In fact, the State, in a commendable effort to persuade us that the absence of motive makes the two crimes distinctive, concedes the following:

“There was no known motive for either assault.
“Both instances were triggered by no apparent reason.
“Both attacks were stamped with appellant’s mark of ‘no motive.’ ”

Brief of Appellee at 23, 24, 29.

Because appellant’s prior assault provides no logical link to the reason for his second crime, we do not believe the evidence in question was relevant on the issues of motive or malice. Something less speculative than “appellant’s mark of no motive” is required in order for the jury to infer from the commission of the first crime that appellant was guilty of the second. Compare Terry v. State, 397 So.2d 217 (Ala.Crim.App.1981), cert. denied, 397 So.2d 223 (Ala.1981) (jealousy of former girlfriend’s suitors); Laing v. State, 390 So.2d 1154 (Ala.Cr.App.1980), cert. denied, 390 So.2d 1160 (Ala.1980) (desire to conceal wrongdoing and reap pecuniary gain); Bynum v. State, supra (revenge-murder of attorney who represented those charged with burning defendant’s barn); Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959) (political-murder of candidate to prevent him from carrying out campaign pledges).

Wharton’s sixth exception, system, includes the principles underlying the motive, intent, and identity tests, according to McCormick. See McCormick on Evidence § 190 at 448-49 (E. Cleary 2d ed. 1972). On the other hand, Wigmore uses the “system” rules interchangeably with what Wharton terms the “identity” exception. See 2 Wig-more on Evidence § 304 (Chadbourn rev. 1979). Judge McElroy’s treatise on evidence referred to the test as one of “plan, design, scheme or system,” see C. Gamble, McElroy’s Alabama Evidence §§ 69.01(6), 70.01(12)(d) (3d ed. 1977), while Alabama appellate opinions have variously termed the rule the exception for “pattern,” see Mayberry v. State, 419 So.2d 262, 268 (Ala.Cr.App.1982); McDonald v. State, 57 Ala.App. 529, 329 So.2d 583 (1975) cert. quashed, 295 Ala. 410, 329 So.2d 596 (1975), cert. denied, 429 U.S. 834, 97 S.Ct. 99, 50 L.Ed.2d 99 (1976), for “modus operandi,” see Smith v. State, 409 So.2d 455, 458 (Ala.Cr.App.1981); Hayes v. State, 384 So.2d 623, 626 (Ala.Cr.App.1979), cert. quashed, 384 So.2d 627 (Ala.1980), or for “mark” or “signature” crimes, see Thomas v. State, 409 So.2d 955, 956 (Ala.Cr.App.1981).

Regardless of the label for the exception, we intend our discussion here to include the same principles enunciated by the foregoing authorities, and to describe that rule which allows evidence of a prior crime whenever the circumstances of the charged and non-charged crimes exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person. For the sake of consistency here, we employ the phrase “signature crimes” to describe offenses so similar in pattern, plan, design, scheme, system or modus operandi that they “identify” the defendant as the perpetrator of both.

One of the common threads running through all of the treatise-writers’ explanations of the signature exception is that a strict test of similarity between the charged and non-charged offenses should be applied. McCormick observes the following:

“[T]he courts are stricter in applying their standards of relevancy when the ultimate purpose of the state is to prove identity, or the doing by the accused of the criminal act charged than they are when the evidence is offered on the ultimate issue of knowledge, intent or other state of mind.”

McCormick on Evidence § 190 at 452 (E. Cleary 2d ed. 1972). Wigmore explains the theory as follows:

“§ 304. Theory of evidencing design or system. When the very doing of the act charged is still to be proved, one of the evidential facts receivable is the person’s design or plan to do it (§ 102 supra). This in turn may be evidenced by conduct of sundry sorts (§ 234 supra) as well as by direct assertions of the design (§ 1725 infra). But where the conduct offered consists merely in the doing of other similar acts, it is obvious that something more is required than that mere similarity, which suffices for evidencing intent (§ 302 supra.). The object here is not merely to negative an innocent intent at the time of the act charged, but to prove a preexisting design, system, plan, or scheme, directed forwards to the doing of that act. In the former case (of intent) the attempt is merely to negative the innocent state of mind at the time of the act charged; in the present case the effort is to establish a definite prior design or system which included the doing of the act charged as a part of its consummation. In the former case, the result is to give a complexion to a conceded act, and ends with that; in the present case, the result is to show (by probability) a precedent design which in its turn is to evidence (by probability) the doing of the act designed.
“The added element, then, must be, not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.”
“It will be seen that the difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity. This is another reason why the precedents are so difficult to reconcile; for the courts have not always perceived that there are in truth these two distinct purposes and therefore two distinct tests for such evidence.
“Nevertheless the distinction is a real one. It is to be seen in concrete illustrations, even though in abstract definition it is not easy to formulate. The clue to the difference is best gained by remembering that in the one class of cases the act charged is assumed as done, and the mind asks only for something that will negative innocent intent; and the mere prior occurrence of an act similar in its gross features — i.e., the same doer, and the same sort of act, but not necessarily the same mode of acting nor the same sufferer — may suffice for that purpose. But where the very act is the object of proof, and is desired to be inferred from a plan or system, the combination of common features that will suggest a common plan as their explanation involves so much higher a grade of similarity as to constitute a substantially new and distinct test.”

2 Wigmore on Evidence § 304 at 249-50, 250-51 (Chadbourn rev. 1979) (emphasis in original).

Many Alabama cases have dealt with crimes which were deemed so similar to each other that they could be said to form a pattern identifying the accused. See, eg., Thomas v. State, 409 So.2d 955 (Ala.Cr.App.1981); Lewis v. State, 399 So.2d 907 (Ala.Cr.App.1981); Hayes v. State, 384 So.2d 623 (Ala.Cr.App.1979), cert. quashed, 384 So.2d 627 (Ala.1980); Stanley v. State, 57 Ala.App. 83, 326 So.2d 148 (1976); McDonald v. State, supra; Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975); Mitchell v. State, 45 Ala.App. 668, 235 So.2d 917 (1970); McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1948); Wilder v. State, 30 Ala.App. 107, 1 So.2d 317 (1941).

In Thomas, both robberies committed by the defendant occurred within a half-hour and at locations less than a mile apart. The defendant carried a pistol, and made the victims — both Auburn students — remain in the bathroom while he cased the apartments. The assailant had trouble detaching the telephone cords in both dwellings and took no change on either occasion. Our court had no difficulty finding a sameness or “pattern” in the two offenses.

Similarly, in Lewis, the defendant’s prior robberies of elderly females by grabbing their purses as they were returning from the grocery store after dark established a “design” or “signature” pointing to the accused.

In Hayes, the accused assaulted two young women at 3:00 a.m. near their own front doors, one as he was kissing her goodnight and the other as he was leaving after a “friendly talk.” In both cases the assailant placed his hands around the women’s backs and suddenly began to apply pressure to their necks.

Stanley dealt with two burglaries of the same house with the same tenant — five months apart. Likewise, McDonald involved a judge who propositioned female litigants after calling them to his chambers, closing the door, and offering “help” on legal matters pending before him.

The attacker in Hogue drove an orange car, stopped female drivers at mid-afternoon near the same exit on Interstate 59 to tell them their mufflers were not working, and then pulled a knife on them and demanded money.

The Mitchell assailant waylaid pre-teen-age girls on their way to school by preying on their fears of his brown and white dog. Similarly, the McKenzie defendant lured women to the same secluded spot on the pretense of looking for a lost bracelet. In Wilder, the thief managed to snatch women’s purses in movie theaters by sitting next to them, then changing seats until he had a more advantageous position from which to steal their handbags.

When compared to the facts of the foregoing Alabama cases, the circumstances surrounding the two offenses in the present case do not, in our judgment, have “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” Wigmore on Evidence, supra § 304 at 249. Under Dean Wigmore’s test, we think the assault on Ms. Reedy qualified as no more than “the mere prior occurrence of an act similar in its gross features — i.e., the same doer, and the same sort of act, but not ... the same mode of acting nor the same sufferer.” Wigmore on Evidence, supra § 304 at 251.

The two incidents both involved young white females who were acquainted with the appellant and who were later strangled. Both victims were found with one shoe on. There the similarities end. In contrast, the victims themselves were very different— Miss Holland was crippled and presumably unable to defend herself, while Ms. Reedy, for aught that appears, had no handicap— thus belying any “pattern” in appellant’s choice of helpless victims. Compare Léwis v. State, supra (Robbery of elderly women alone).

Although the place of Miss Holland’s murder is unknown, her body was disposed of in a remote area, while Ms. Reedy was assaulted in her automobile in a public parking lot. Perhaps most significantly, there was no hint of sexual motivation or molestation in the Reedy assault, while Miss Holland’s nude body was found with a black brassiere wrapped around her ankles, indicating some sexual overtones to the assault.

Another common thread found in the commentaries is that the collateral and current offenses must, unless they bear such a close resemblance to each other that they can be assumed to derive from the same plan or planner, have been committed in the same “novel,” see C. Gamble, McElroy’s Alabama Evidence § 69.01(8) at 138 (3d ed. 1977), or “peculiar” manner, see Underhill’s Criminal Evidence § 210 at 636-37 (P. Herrick 6th ed. 1973). See also Thomas v. State, 409 So.2d 955 (Ala.Cr.App.1981) (defendant’s modus operandi was not “novel and peculiar” in the two offenses, but second crime bore close resemblance to first).

The Alabama courts have noticed the defendant’s novel and peculiar modus operan-di in at least three recent cases. See Nichols v. State, 422 So.2d 804 (Ala.Cr.App.1982); Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981); Breen v. State, 349 So.2d 113 (Ala.Cr.App.1977). In Nichols, the defendant was tried for rape and the State sought to introduce evidence of three prior rapes committed by him. All of the victims testified that their assailants spoke in a distinctively soft voice and tried to keep them from seeing his face, twice covering them with a pillow for this purpose. He also inquired whether the victims were hiding anything under their pillows, and he later robbed them.

In Smith, the court noted the peculiarity of a rapist’s apologizing to his three victims and returning them to a place of safety after he had attacked them sexually. In Breen, the court commented on the novelty of the defendant’s using sheet hems with green stitching to bind all of his victims.

In the present case, there is no oddity common to the Reedy assault and the Holland murder. While both victims were young white females who knew the appellant and who were later choked, we discern nothing “novel” or “peculiar,” as the case law has interpreted those terms, in these circumstances. We cannot say that the strangulations bore the appellant’s unusual “mark” or “signature” since he used a different method for each victim, first an extension cord and then knotted handkerchiefs. Compare State v. Gourley, 224 Kan. 167, 578 P.2d 713 (1978) (after breaking in to steal guns and jewelry, defendant strangled both victims with electrical cords). See also People v. Hanei, 81 Ill.App.3d 690, 38 Ill.Dec. 1, 403 N.E.2d 16 (1980), cert. denied, 101 S.Ct. 1382 (1981) (two murders by poisoning with thallium, in order to acquire deeds to property); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980) (five murders by poisoning with insecticide in order to prevent victims from discovering forgeries by defendant); People v. Baker, 103 Mich.App. 704, 304 N.W.2d 262 (Ct.App.1981) (three rapes accomplished by entering hotel rooms while maids were cleaning).

Finally, Wharton’s eighth specific exception to the other crimes rule, “relevancy to rebut special defenses,” has no bearing here. In the absence of a special defense such as entrapment, see Brown v. State, 392 So.2d 1248 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981), or insanity, see Thomason v. State, 46 Ala.App. 10, 237 So.2d 121 (1970), the State’s rebuttal evidence is not in question. Likewise, Wharton’s final test, “relevancy in various particular crimes,” has no application here. See Smith v. State, 342 So.2d 422 (Ala.Cr.App.1977).

We have canvassed the list of exceptions outlined by the commentators and have found no vehicle by which the evidence introduced below would have been, in our opinion, properly admissible. We recognize that the problem is “not merely one of pigeonholing, but one of balancing,” McCormick on Evidence, supra § 190 at 453, and we conclude that the evidence of Ms. Reedy’s prior assault had no probative value in relation to its inflammatory effect on the factfinders, and that its admission constituted reversible error for which appellant is entitled to a new trial.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

HUBERT TAYLOR, Judge.

In addition to the authorities heretofore cited, this court also cites the very recent opinion of the Supreme Court of Alabama in Ex parte Cofer, 440 So.2d 1121 (Ala.1983).

OPINION EXTENDED; REQUEST FOR FACTS DENIED; APPLICATION OVERRULED.

All the Judges concur.


author: TYSON, Judge.

text:
    Kenneth Dale WIGGINS v. STATE of Alabama.
    8 Div. 608.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82—1065.

      James Francis, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Kenneth Dale Wiggins was indicted for robbery in the first degree in violation of § 13A-8 — 41, Code of Alabama 1975.

The jury found the appellant “guilty as charged in the indictment” and the trial court set sentence at ninety-nine, years in the penitentiary.

On the night of Thursday, March 5, 1981, Wilma Moses was employed at the Handy Food Store in Decatur, Alabama. At approximately 10:25, Ms. Moses began making preparations to close the store for the night. As she was going outside to obtain a reading from the gasoline pumps, someone yelled “Hey” at her. (R. 51). It was a black male whom she recognized as a regular customer. The man started to run toward the door so Ms. Moses thinking he was playing a prank, pretended to hold the door closed. Then the man put a gun against the window and shot Ms. Moses in the left hand and chest.

Ms. Moses testified she got a good look at the man’s face because although the man wore an open weave mesh football jersey over his head part of the time, she still could see his face. Furthermore, at one point, she saw his face without this covering. She identified the appellant in court as the man who shot her that night.

After Ms. Moses was shot, the appellant entered the store, pushed her down and said, “You better hush up or I will kill you.” (R. 57). The appellant then went to the cash register and opened it. She recalled that there were at least two ten-dollar bills, two five-dollar bills, some one-dollar bills and quite a few quarters in the register at the time.

The next thing Ms. Moses remembers was when the police arrived and she was transported to the hospital.

Ms. Moses testified she picked out the appellant’s photograph from a group of photographs shown to her while she was in the hospital a few days after the incident.

Donald Garth testified he purchased a .12 gauge shotgun from the appellant approximately three months before the robbery occurred. The appellant borrowed the gun from him about three weeks prior to the robbery. When Garth later asked the appellant about the gun and the robbery, the appellant said the gun was not in Decatur, Alabama.

Edward Taylor of the Decatur Police Department testified he responded to a call at approximately 10:30 p.m. on March 5, 1981. When he arrived, he saw Ms. Moses lying on the floor with a shotgun wound. The cash register door was open and there was no money in it.

On March 9, 1981, Sergeant Taylor showed Ms. Moses a group of six photographs from which she picked out the appellant.

Sergeant Taylor saw the appellant at approximately 12:30 a.m., shortly after he had been arrested. He noticed the appellant smelled of alcohol so he decided not to talk to the appellant at this time because Taylor thought he might be intoxicated. The appellant was placed in a solitary cell for the night.

Sergeant Taylor next saw the appellant around 9:20 a.m., on March 10, 1981. At this point, a voir dire hearing was held to determine the voluntariness of the appellant’s confession which the State sought to introduce into evidence.

Sergeant Taylor testified the appellant was read his Miranda rights and also the waiver form. The appellant stated he understood his rights and signed the waiver of rights form. Taylor explained the charges against this appellant to him and told him he had been identified by Ms. Moses.

The appellant did not appear to be intoxicated and did not smell of alcohol at the time he gave his statement. Taylor had dealt with the appellant on other occasions and noticed that he did not seem to act abnormally.

After the appellant made his statement, Taylor read the statement to the appellant, let him read it, and gave him the opportunity to make any changes and then the appellant signed it. Taylor stated the appellant seemed to understand what was going on. He testified that no threats, coercion, hopes of reward or other inducements were made to the appellant in order to obtain this statement.

Bill Minton, a pharmacist at Lloyd’s Drug Store in Decatur, testified that the use of Quaaludes could cause mental impairment and when used in conjunction with alcohol, that effect could be enhanced.

The appellant said he drank a pint of bourbon, two beers and took seven Quaa-ludes the evening of his arrest. He stated he remembered being arrested, going to jail and being placed in a solitary cell. He recalled that he did not sleep that night. The appellant even remembered what he had for breakfast the morning he made the statement. He recalled talking to Sergeant Taylor on that morning, reading the statement and signing it. The appellant stated he did not have an independent recollection of what happened on the night of the robbery. He admitted he could not say whether or not he shot Ms. Moses or whether or not the confession was true. He said he was high on the night of the robbery and the morning he was arrested.

The appellant’s brother, Dexter Wiggins, testified he saw the appellant drink whiskey and take a Quaalude on the night of his arrest.

The trial judge found the confession was voluntarily made and then it was admitted before the jury.

The confession contained statements made by the appellant concerning where he originally obtained the shotgun, that he had sold it to Don Garth, borrowed it from him and kept it at his girlfriend’s house, went to the store and shot the lady by accident because he became scared. He said he obtained $34.00 from the cash register, and later threw the gun off the river bridge.

Joe Lewis Harris and Willie Burgess testified they were with the appellant on the evening on which the robbery occurred. They had been drinking heavily, smoking marijuana, but not using pills. They did not see the appellant after 9:30 p.m.

Jessie Burgess, the appellant’s girlfriend, testified that he was at her house on the night of the robbery. He left sometime between 10:00 and 10:15 p.m. and returned ten to twenty minutes later. She testified the appellant kept the gun at her house but that it was gone the morning after the robbery.

The appellant testified he drank heavily and took some Quaaludes on the night of the robbery and the night he was arrested. He recalled all the events of the night of his arrest, the morning he was questioned and even making the statements contained in the confession. However, he stated he was not admitting that he robbed and shot Ms. Moses or that he did not.

I

The appellant contends the trial judge erred by refusing to grant defense counsel’s request to hire an expert pharmacologist who could testify as to what the effects would be of the ingestion of Quaaludes on a human being.

A denial of funds to procure an expert witness does not deprive a defendant of his constitutional rights. Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.1979). However,

“Alabama Code 1975, Section 15-12-21(d) provides that ‘(c)ounsel (appointed to defend an indigent defendant) shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court, but in no individual case shall such expenses exceed one-half of the allowable attorney fees provided in this section.’ (Emphasis Added.)
“Section 15-12-21 clearly authorizes reimbursement for any expense reasonably incurred in the defense of an indigent by a court appointed attorney if such expense is approved in advance by the trial court.... However, such expenses must be approved by the trial court.” (Emphasis added).

Bailey v. State, 421 So.2d 1364, 1367 (Ala.Cr.App.1982).

The trial judge must find some reasonable basis for the expenditure of State funds before he may authorize such. In the judgment denying appellant’s motion, the trial judge stated:

“Counsel was advised by the Court that if there was something unusual in this phase of the case that only a pharmacologist could resolve, the Court would consider the motion. Counsel was advised that the Court thought that a local pharmacist, a medical doctor or the State Toxicologist, or even a pharmacological text book could supply credible information on this issue, since the issue was simply the effect on a human being of the ingestation of quaalude prior to the giving of a statement.
“It was also suggested that the contention of the defendant might be reduced to writing and submitted to the State to see if it would stipulate the effect of quaa-lude in such circumstances. The Court advised that it was of the opinion that since this was a question to be passed on by the Court rather than by a jury, that there was no need to spend the money (counsel advised a $200.00 estimate) simply to obtain an ‘impressive’ witness.” (R. 331-332).

We hold the trial court properly considered this motion and felt the expenditure of State funds was unnecessary and improper in order to obtain the information sought from the expert pharmacologist. He determined this same information could be easily obtained through less costly methods.

Furthermore, the trial judge denied the motion on the basis that this motion was filed nearly one month after the cut-off date for the filing of such motions.

Therefore we hold that defense counsel’s motion was properly denied.

II

The appellant argues that his confession was given involuntarily and that he had been drinking, and therefore, its admission into evidence was error.

The issue of voluntariness of a confession is a question of law to be determined by the trial judge outside the presence of the jury. Snider v. State, [1982] 422 So.2d 807 (Ala.Cr.App.1982), and cases cited therein.

Clearly here the State provided sufficient proof to the trial judge that the appellant’s confession was voluntarily made.

Sergeant Taylor stated the appellant was not questioned on the night of his arrest because he appeared to have been drinking. The following morning when he gave his statement, the appellant exhibited no signs of intoxication. The appellant recalled every detail of the night of his arrest and the next morning and even recalled making the statements.

This court will not disturb a trial judge’s decision concerning voluntariness of a confession unless it is palpably contrary to the great weight of the evidence and manifestly wrong. Morgan v. State, 363 So.2d 1013 (Ala.Cr.App.1978), Burks v. State, 353 So.2d 539 (Ala.Cr.App.1977). Clearly, such is not the case here.

We hold the trial judge properly admitted this confession into evidence.

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

AFFIRMED.

All the Judges concur.


text:
    Regina CARROLL v. STATE.
    8 Div. 833.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 16, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1165.

      John L. Sims, Hartselle, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton of Hampton & McLain, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the first degree robbery of Arthur Le-croix, Jr., in violation of Section 13A-8-41, Code of Alabama 1975. Sentence was fifty years’ imprisonment. Five issues are argued on appeal.

I

The defendant’s motion to quash the indictment was properly denied. In relevant portion, the indictment charged that the defendant:

“did commit robbery first degree in that she did in the course of committing a theft of one (1) man’s yellow gold Kentucky cluster ring, of the value of $1,000.00, the property of Arthur Lecroix, Jr., use force against the person of Arthur Lecroix, Jr.,, with intent to overcome his physical resistance or physical power of resistance, and at the time cause serious physical injury to the said Arthur Lecroix, Jr., in violation of Section 13A-8-41 of the Code of Alabama.”

Comparison reveals that this indictment tracks the language of the statute and is sufficient to defeat the defendant’s claim of being vague and indefinite. Summers v. State, 348 So.2d 1126, 1132 (Ala.Cr.App.), cert. denied, Ex parte Summers, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978); Alabama Code Section 15-8-23 (1975).

The indictment was not indefinite and vague because it failed to state the date of the offense, Kelley v. State, 171 Ala. 44, 55 So. 141 (1911), Williams v. State, 348 So.2d 1101 (Ala.Cr.App.), cert. denied, Ex parte Williams, 348 So.2d 1105 (Ala.1977), Alabama Code Section 15-8-30 (1975), or the place or address where the offense was committed, Kimbell v. State, 165 Ala. 118, 51 So. 16 (1909); Harris v. State, 44 Ala.App. 449, 212 So.2d 695, cert. denied, 282 Ala. 726, 212 So.2d 704 (1968); Alabama Code Section 15-8-31 (1975).

The indictment was not insufficient because it failed to state what force was used or the means of perpetrating the crime. The general rule is stated in 77 C.J.S. Rob bery, Section 40 (1952): “Except as the matter may be material to the degree or classification of the offense, ... the indictment or information need not allege the kind or manner of force used, or the degree of force employed, or the nature of the fear aroused, or the means by which the victim was intimidated.”

II

The defendant’s motion for a change of venue based on pretrial publicity was properly denied. In order to establish impermissible juror partiality before trial, the defendant must show that the publicity either prejudiced an individual juror or caused pervasive hostility within the community. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

“In order for the defendant to be successful in his attempt to change the venue, it is necessary for him to show that because of the pretrial publicity, there is such a feeling of prejudice and bias against him in the community where he is to be tried that his right to obtain a fair and impartial trial has been put in jeopardy. That pretrial publicity, whether of a routine nature or even of a more inflammatory nature, has been disseminated through the community scheduled for defendant’s trial, has generally been recognized as not constituting a sufficient basis in itself for granting the defendant’s motion, some proof or evidence of community ill will toward the defendant seemingly being required to be exhibited.” Annot. 33 A.L.R.3d 17, 33 (1970).

Generally, newspaper articles in themselves are an insufficient basis on which to grant a motion for a change of venue. Anderson v. State, 362 So.2d 1296, 1299-1300 (Ala.Cr.App.1978). Here, the defendant failed to sustain her burden of proof. McLaren v. State, 353 So.2d 24 (Ala.Cr.App.), cert. denied, Ex parte McLaren, 353 So.2d 35 (Ala.1977).

Since the granting or denial of a motion for change of venue in a criminal case is a matter within the sound discretion of the trial judge, this Court will reverse the trial court’s ruling only where an abuse of discretion plainly appears. Cobern v. State, 273 Ala. 547, 551, 142 So.2d 869 (1962); Botsford v. State, 54 Ala.App. 482, 489, 309 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844 (1975).

Ill

The defendant argues that the State did not prove the elements of first degree robbery because there is no direct evidence to show that a theft was committed and because there is no evidence to show that any force was threatened or used against the victim. Our review of the record shows that both of these elements were proved through circumstantial evidence. Circumstantial evidence may afford satisfactory proof of the corpus delicti, and, if facts are presented from which a jury may reasonably infer that a crime has been committed, the question of the defendant’s guilt or innocence must be submitted to the jury. Andrews v. State, 406 So.2d 1041, 1043 (Ala.Cr.App.), cert. denied, Ex parte Andrews, 406 So.2d 1045 (Ala.1981); McCloud v. State, 401 So.2d 314, 319 (Ala.Cr.App.1981). The offense of robbery may be proved by circumstantial as well as direct evidence. Baker v. State, 344 So.2d 547, 549 (Ala.Cr.App.1977).

The evidence presented by the State revealed that the defendant and Bruce Carroll, her husband, were at a party in Decatur on the evening of December 9, 1981. Arthur D. Lecroix was also present and was wearing a gold Kentucky Colonial diamond ring worth $1600. The party started at the townhouse of Dwight Green but later moved next door to Lecroix’s townhouse. At approximately 9:00 that evening the defendant asked Green, “Is it all right if I pull Dee for his ring?” Green testified that he did not know what “pull” meant but “knew it was something to do with getting the ring.” Green told the defendant that it was not all right because Lecroix was a good friend. The defendant told her husband, “Dwight said no.” Carroll then looked at Green and said, “Well, reckon we can get him in a crap (or dice) game.” The defendant then said, “he won’t remember a thing.”

Mr. Lecroix’s body was found the next day in an isolated area approximately two and one-half miles from his residence. There was evidence that he had been beaten. The ring was not found and his wallet was located a short distance from the body. An autopsy revealed traces of the drug scopolamine which causes amnesia, disorientation, drowsiness and hallucinations.

Without detailing further testimony, the State proved that the defendant and her husband were seen with Lecroix approximately one hour before he was discovered missing. On November 28, 1981, ten days before this robbery, the defendant and her husband had been arrested in Huntland, Tennessee. An inventory search of the defendant’s purse disclosed a bottle bearing the name of her husband and containing scopolamine. Four additional bottles of the drug were found in the trunk of the Cadillac she was supposedly going to purchase. None of the bottles had a prescription label.

The State presented evidence that on December 14, 1981, four days after the robbery, the defendant and her husband robbed Alan Smith in Marietta, Georgia, by drugging him and then taking his personal property. On December 18, 1981, a medicine bottle containing a residue of scopola-mine was found in the Oldsmobile the defendant was attempting to purchase and which she had been driving.

Although the evidence of the defendant’s involvement in the Lecroix robbery is entirely circumstantial, it is highly incriminating and sufficient to sustain the verdict. Dolvin v. State, 391 So.2d 133 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied, 295 Ala. 426, 324 So.2d 333 (1975).

The circumstantial evidence clearly justifies a reasonable inference that a theft was committed and that force or violence was used against the victim in the commission of the robbery.

IV

The testimony of the defendant’s arrest in Tennessee and the resulting discovery of scopolamine in her possession ten days before the charged robbery was properly admitted into evidence. The trial judge gave limiting instructions on the consideration the jury should give this testimony.

Just as it is competent in a homicide prosecution to prove that the accused had a pistol prior to the killing, Rollings v. State, 160 Ala. 82, 49 So. 329 (1909); Payne v. State, 261 Ala. 397, 74 So.2d 630 (1954); Ezzell v. State, 13 Ala.App. 156, 68 So. 578 (1915), here it was competent to prove that shortly before the robbery she was in possession of a drug allegedly used to subdue the robbery victim. “Antecedent circumstances tending to shed light on the criminal transaction or elucidate facts or show preparation to commit the crime are admissible in evidence.” Pope v. State, 365 So.2d 369, 373 (Ala.Cr.App.1978). “In prosecutions for robbery evidence is admissible to show that the accused owned, possessed, or had access to tools, implements, or other articles with which the robbery was or might have been committed.” 77 C.J.S. Robbery, Section 46(e)(4) (1952).

V

The robbery of Alan Smith in Marietta, Georgia, was clearly admissible to show the identity of the charged offense. C. Gamble, McElroy’s Alabama Evidence, Section 70.01(24)(c) (3rd ed. 1977). At trial, defense counsel recognized this fact: “I have to concede that the incident alleged over in Georgia was (a) similar alleged incident.” We note that although the evidence of the defendant’s involvement in the robbery of Alan Smith was initially introduced through the hearsay testimony of an investigating law enforcement officer, Smith himself testified to the incident and positively identified the defendant, thus curing any error. “The admission of incompetent evidence is harmless error, where the fact to which such evidence relates is otherwise established by competent evidence.” Chambers v. State, 400 So.2d 436, 438 (Ala.Cr.App.1981); Henson v. State, 407 So.2d 590 (Ala.Cr.App.1981).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Mart OGLEN, alias v. STATE.
    6 Div. 972, 6 Div. 973.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 30, 1983.

      Michael C. Cornwell, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Oglen was indicted and convicted for first degree rape and first degree sodomy, both crimes stemming from a single incident involving a series of acts between Oglen and the prosecutrix. He was sentenced as an habitual offender to life imprisonment for each of his convictions.

I

Oglen’s main argument on appeal is that he was denied a fair trial by the “injudicious conduct” of a biased and prejudicial trial judge. Very serious charges are made against the judge and they strike at the very heart of the judicial system. We have carefully reviewed each of the cited instances of alleged misconduct and find that, even though some of the judge’s actions and comments were improper, Oglen was not deprived of a fair and impartial trial by the judge’s conduct and demeanor.

A.

Conduct In Chambers

Most of the complained of conduct of the trial judge occurred outside the presence of the jury in the judge’s chambers. The general rule is that a judge’s improper conduct made in the absence, or without the knowledge, of the jury does not constitute reversible error for the reason that the jury was not influenced by that conduct. Jones v. State, 392 So.2d 1270, 1271 (Ala.Cr.App.), cert. denied, Ex parte Jones, 392 So.2d 1273 (Ala.1980); Knowles v. State, 44 Ala.App. 163, 166, 204 So.2d 506 (1967); Green v. State, 42 Ala.App. 439, 446, 167 So.2d 694, cert. denied, 277 Ala. 698, 167 So.2d 701 (1964); 23 C.J.S. Criminal Law, Section 987 (1961).

At the very beginning of the trial and throughout its course the trial judge expressed his disgust with having to try this type of case. He found some of the testimony “disgusting”, “loathsome”, and “sickening”. This was not improper. Even the fact that a judge informs the jury that the evidence may be nauseating, unpleasant or degrading does not constitute error. Howell v. City of Birmingham, 383 So.2d 567, 569 (Ala.Cr.App.), cert. denied, 383 So.2d 570 (Ala.1980).

At sentencing, the judge expressed his belief in the defendant’s guilt and told the defendant that he was “quite fortunate” that he did not receive the death penalty.

In chambers, the trial judge openly acknowledged and apologized for his impatience which he admitted he might have displayed before the jury. He admitted that he “blew up” when, after remaining “quite tolerant for a long time”, he felt like defense counsel was being repetitive and abusive in his cross examination of the pros-ecutrix.

Also in chambers, he instructed defense counsel to “shut up”, obviously feeling that he was being interrupted. He would not allow defense counsel to argue further on the admissibility of evidence of another crime by the defendant. However, this was after the issue of admissibility had been fully discussed and argued. He refused to state the reason for his ruling but we know of no requirement that he do so.

The trial judge specifically stated that he had been very careful not to do or say anything that would prejudice the jury: “I don’t think that I have done anything to prejudice the jury in any way.”

The trial judge owes defense counsel a high degree of courtesy and respect. Dennison v. State, 17 Ala.App. 674, 676, 88 So. 211 (1921):

“While attorneys in a criminal prosecution are entitled to and must receive fair treatment at the hands of the trial court, and extensive bickering and quarreling with counsel may constitute misconduct, as a general rule the court may, by words or conduct, properly caution, correct, advise, admonish, and, to a certain extent, criticize counsel during the case, provided it is done in such manner as not to subject counsel to contempt or ridicule, or to prejudice accused in the minds of the jurors.” 23 C.J.S. Criminal Law, Section 989 (1966).

The record supports the fact that the trial judge did not show defense counsel the degree of professional courtesy and respect to which he was entitled. Yet, defense counsel was not entirely without fault in his demeanor toward the trial judge. Granted, the judge’s conduct and comments toward defense counsel cannot be approved in several instances. However, our review of the record convinces us that the jury was properly shielded from and unaffected by any prejudicial remarks made by the trial judge outside the jury’s presence.

B.

Conduct Before The Jury

As the defendant argues, the trial judge did display his impatience before the jury. Although most of his impatience was directed toward defense counsel, the record also reveals other occasions where it was directed toward the prosecutor, and at times toward both attorneys. This impatience or irntation was to some extent evoked by defense counsel’s repetitive and somewhat lengthy cross examination of the victim, which the trial judge characterized at one point as “browbeating”, and by counsel’s attempt to elicit the judge’s reasons for his rulings.

“Manifestations of impatience by the court at the methods or requests of counsel are not only in bad taste but may also constitute error; but it has also been held that the trial judge’s indications of impatience with counsel are not expressions by the court or belief in accused’s guilt of the crime charged, and that allegations of error in such indications do not prove themselves. A remark that the cross examination is unusually protracted is not improper where it is brought out by the fact that such cross examination has been exceedingly prolix.”
23 C.J.S. Criminal Law, Section 989.

However, “the trial judge is not required to be a robot without emotional reaction to happenings in his courtroom. Impatience with excessive delay by counsel is a natural and understandable reaction.” Fletcher v. State, 291 Ala. 67, 69, 277 So.2d 882 (1973); Hayes v. State, 33 Ala.App. 364, 369, 33 So.2d 744 (1948).

The defendant argues that he was especially prejudiced by the trial judge’s conduct on three separate occasions. (1) When defense counsel was reluctant to follow the judge’s directions of how to use the victim’s preliminary hearing testimony to impeach the victim, the trial judge instructed counsel to “proceed in a normal fashion” and not “get off on some matter that is not in the record (of the preliminary hearing).” This does not constitute error. Munson v. State, 250 Ala. 94, 97, 33 So.2d 463 (1948) (counsel warned against injection into case of matter judge considered incompetent); Vaughn v. State, 236 Ala. 442, 447, 183 So. 428 (1938) (judge justified in telling counsel not to go further into particulars of a wholly collateral nature and in stating that he did not want to hear any more on the subject); Butler v. State, 55 Ala.App. 421, 427, 316 So.2d 348, cert. denied, 294 Ala. 754, 316 So.2d 355 (1975), and cases cited therein; Selvage v. State, 29 Ala.App. 371, 372, 196 So. 163 (1940). Here, as in Butler, it is our impression that the trial judge, while showing some impatience, was attempting to exercise his rightful control over the proceeding by moving the testimony expeditiously along.

(2) We also find no error in the trial judge’s statement that he wanted to see the defendant and the court reporter in his office made immediately after the defendant finished testifying on direct examination. We do not accept the defendant’s argument that the comment and the time at which it was made gave the jury the impression that there was something wrong with or unusual about the defendant’s testimony that required an immediate conference in chambers.

(3) Moreover, we do not think that the judge’s direction to defense counsel not to “browbeat” the victim on cross examination improperly prejudiced the defendant. Flurry v. State, 52 Ala.App. 64, 75, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974) (judge’s comment to defense counsel not to insult witness not prejudicial error).

In reviewing this case, we are limited to the facts reflected in the record and the fair and reasonable inferences which they afford. Munson, 250 Ala. at 97, 33 So.2d 463; Williams v. State, 34 Ala.App. 253, 259, 39 So.2d 29 (1948). As this Court held in McCovery v. State, 365 So.2d 358, 362-63 (Ala.Cr.App.1978):

“Remarks by the trial judge may be open to criticism, but they are not error unless they have affected the result of the trial. It is not every erroneous expression of opinion by a trial judge, during trial, that will furnish a ground for reversal. To do so it must, in some manner, influence the result of the cause, or be supposed to do so. Each case rests upon its own peculiar facts and circumstances.” (citations omitted).

There is no ironclad rule by which the prejudicial character of the improper conduct and comments of a trial judge can be ascertained in all cases, most depending on the issues, parties, and the general circumstances of each particular case. In recognition of this, we have studied and searched the entire record and paid particular attention to each and every comment of the trial judge. We have carefully examined each instance of alleged judicial misconduct and find no reversible error.

From the cold record, it appears that some of the alleged examples of misconduct “represent an exaggeration and a too thin-skinned reaction to a perfectly normal inquiry by the court.” United States v. Poland, 659 F.2d 884, 893 (9th Cir.1981). Moreover, we do not credit the judge’s comments and conduct with the same implications and weight as does the defendant.

The trial judge was aware of his potential influence on the jury and did not express his opinion of the defendant’s guilt before the jury. As a final precaution, he instructed the jury, in his oral charge, that if he had shown some impatience, irritation or anger, not to allow his conduct to affect their verdict: “I beg you and employ you not to charge this defendant or let that in any way make you feel like he is guilty .... It would be highly improper for me to indicate to you in the slightest whether or not I think he is guilty as charged.” This cautionary instruction was sufficient to purge the taint of any prejudice the judge’s impatience might have caused. Lokos v. State, 434 So.2d 831 (Ala.1983). A trial judge’s apology does not always indicate that error has been committed. Garson v. State, 49 Ala.App. 413, 272 So.2d 619 (1973).

The trial judge has a duty to be thorough, courteous, patient, punctual, just and impartial. Yet, at the same time it must be remembered that he is a “human being, not an automaton or a robot.” Allen v. State, 290 Ala. 339, 342, 276 So.2d 583 (Ala.1973). In light of all the circumstances of this case, we find that the actions and comments of the trial judge were not so prejudicial as to require a mistrial or cause a reversal of this conviction. In making this determination, we are mindful of our duty “to consider the various incidents together in an effort to determine whether or not, in their cumulative effect, they created an atmosphere fatal to the fairness of the rights of the accused.” Williams, 34 Ala.App. at 259, 39 So.2d 29. Although some of the judge’s conduct is subject to criticism, it did not deprive the defendant of a fair trial.

II

The victim testified that, during the course of the defendant’s sexual attack upon her, the defendant stated that she was not his first rape victim. The defendant testified and denied making such a statement, but admitted that he had pled guilty to a prior rape charge. Subsequently, the State made several attempts to introduce evidence of the prior conviction. The defendant cites these attempts by the State to inject evidence of a prior rape conviction as reversible error.

The defendant’s arguments concerning this alleged error are without merit. The defendant, himself, injected evidence of the prior rape conviction and, subsequently, volunteered information that the victim’s consent was an issue in the prior case. Because the victim’s consent was the only issue in this case, the evidence of the prior rape was admissible, under an exception to the general exclusionary rule, to prove the defendant’s criminal intent or motive, or the nonconsent of the victim. Chancellor v. State, 38 Ala.App. 89, 80 So.2d 313, cert. denied, 262 Ala. 700, 80 So.2d 315 (1954); O’Berry v. State, 361 So.2d 1132 (Ala.Cr.App.), cert. denied, 361 So.2d 1135 (Ala.1978); Cofer v. State, 440 So.2d 1116 (Ala.Cr.App.1983); C. Gamble, McElroy’s Alabama Evidence, Section 70.01(22)(d) (3rd ed. 1977).

III

Because the victim’s consent was the only disputed fact at trial, the defendant was either guilty of a sexual crime or innocent. Therefore, the trial court did not err in refusing appellant’s requested written instruction on third degree assault. Myers v. State, 401 So.2d 288, 291 (Ala.Cr.App.1981).

For the reasons noted above, the defendant’s convictions are affirmed.

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte Mart OGLEN. (In re Mart Oglen, alias v. State of Alabama).
    82-1253.
    Supreme Court of Alabama.
    Oct. 28, 1983.
    Michael C. Cornwell, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   ALMON, Justice.

The petition for writ of certiorari attempts to present facts for our consideration in addition to those contained in the opinion of the Court of Criminal Appeals, 440 So.2d 1172, merely by reference to pages 15 through 349 of the record. This procedure is not in compliance with Rule 39(k), A.R.A.P.

We are thus unable to conclude from the opinion of the Court of Criminal Appeals that reversible error attended the trial below. The writ of certiorari is therefore denied.

WRIT DENIED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: HUBERT TAYLOR, Judge.

text:
    Boyd Alvin FLACK v. STATE.
    8 Div. 823.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
    Rehearing Denied Aug. 16, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1138.

      Clyde D. Baker, Guntersville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted for violating the prohibition laws on November 10, 1982, in the Circuit Court of Marshall County. He was sentenced to one year in the county jail and fined $500.

George Burkhalter, an agent for the ABC Board, and Charles Hill, a deputy with the Marshall County Sheriff’s Department, after obtaining a search warrant, searched appellant’s home for illegal liquor. Approximately 1400 unopened twelve-ounce cans and forty-eight unopened 500-milliliter bottles were recovered. The cans were labeled with various commercial brand names, namely, Budweiser, Stroh’s, Miller, and Schlitz. There was no testimony as to how the bottles were labeled. None of the cans or bottles were opened by either the ABC agent or the deputy, although, they did testify that some or all of the cans and bottles were marked with the State revenue stamp. None of the cans or bottles or the contents of either were brought before the jury or put into evidence during appellant’s trial.

The only issue raised on appeal is whether the evidence was sufficient to submit the issue of guilt to the jury. The basis for appellant’s contention is that the State failed to offer any proof as to the contents of the cans and bottles in question. The only relevant testimony reads as follows:

[Recross Examination of Mr. Burkhalter by Mr. Baker]
“Q. Did you open any of the cans to see what was inside?
“A. No, sir, I did not.
“Q. Did you open any of the bottles to determine what was inside?
“A. No sir, I did not. I checked the seals the beverage control board puts on them, the seals.
“Q. Do you know of — do you have any knowledge of the contents of those cans and bottles?
“A. Yes, due to the labeling.
“Q. No, sir. I am asking about the inside of the bottles, not the outside?
“A. Yes, sir, it is whiskey.
“Q. How do you determine that?
“A. I’ve seen it over and over again.
“Q. No, how did you determine what was inside the bottle?
“A. By looking at the label. ,
“Q. Okay. So your conclusion is based on the label, not the contents?
“A. Yes, sir.
“REDIRECT EXAMINATION BY MR. STARNES:
“Q. I believe you said you examined the — the whiskey bottles; is that right?
“A. Yes, sir, I did.
“Q. There is a stamp on liquor bottles that seals them, right?
“A. Yes, and these had the proper seal.
“Q. Were any of the seals broken?
“A. No sir.
“Q. Did you have occasion to examine any of the beer that was there?
“A. I just looked at the cans and checked the cans, and it had an Alabama stamp on it, and I didn’t open any of them.
“Q. Were they sealed also?
“A. They were sealed also, yes.
“Q. What brands of cans did you note there, sir?
“A. They had Miller, Budweiser, Stroh’s, and Schlitz.
“Q. Did you see any of those cans in those coolers open?
“A. No, sir, I didn’t see any of them open.”

The State produced three types of proof concerning the contents of the cans and bottles. These are proof by visual inspection, proof by judicial notice that Budweiser, Miller, Stroh’s and Schlitz cans contain alcoholic beverages, and proof that cans or bottles with an affixed State revenue stamp contain alcoholic beverages. The first types of proof was rejected in the case of Berry v. State, 29 Ala.App. 196, 194 So. 418, 419 (1940), when the court said, “We would pause to remark that it was error to allow the State’s witnesses to testify that they ‘knew whiskey when they saw it.’ Everybody knows, and hence this court knows that whiskey cannot be detected by sight! Too many other things have its appearance.” In Blevins v. State, 29 Ala.App. 218, 194 So. 697, 698 (1940), the court added that, “[E]ven in a glass bottle or glass container, where the contents are clearly visible, it was mere conclusion of the witness in testifying that the contents was whiskey simply by looking at it.”

Proof by judicial notice of the contents of cans based on a trade name or commercial legend has also been rejected. The Supreme Court of Alabama in Daniel v. State, 149 Ala. 34, 43 So. 22, 24 (1907), held that, “The courts, however, cannot judicially know that the liquor called ‘Hop-Ale,’ or ‘Hop-Jack,’ is the same as ale.... [A] court does not judicially know that ‘Hop-Ale’ is intoxicating. There must be affirmative proof to establish this fact .... ” In the case of Blackwell v. State, 42 Ala.App. 246, 160 So.2d 493, 495 (1964), the court said, “We cannot notice or take judicial knowledge that ‘Falstaff beer cans and cartons’ express to a common intendment so as to dispense with bringing the claimed contraband before the jury or of opening at least one can so as to test its contents both as to alcohol and volume.”

Next is the question of the sufficiency of the State stamp. In Blackwell, supra, the court said, “Strictly there was only opinion evidence based on faith in the ABC Board beer stamp that there was beer in the twenty four pint cans.” Blackwell, supra, 160 So.2d at 495. The court then declined to decide the issue. Section 28-3-187, Code of Alabama 1975, which pertains to the stamp, reads in part as follows:

“(a) For the protection of the public welfare, health, peace and morals of the people of this state, including without limitation regulation of the quality of malt or brewed beverages sold, offered for sale or held for sale within this state, and for the protection of the tax revenues accruing to the state by virtue of taxes levied on malt or brewed beverages, it is hereby declared the intention and purpose of this article that the board shall require all manufacturer licensees, or in lieu thereof, all importer licensees to affix Alabama identification, as will be prescribed by the board, to all original containers in which malt or brewed beverages is normally placed and prepared for market, received, sold or handled, before such beverages are sold, offered for sale or held for sale within this state.” (Emphasis added.)

A reading of § 28-3-187, Code of Alabama 1975, infers that the legislature intended the State stamp to connote something about the contents of the container to which it is affixed.

Since the legislature has mandated that a State stamp be put on all original containers in which malt or brewed beverages are placed, and that the cans in question were unopened, we conclude there was enough evidence from which the jury could conclude that the cans contained alcoholic beverages.

The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Marion Wayne OLIVER v. STATE.
    6 Div. 4.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 23, 1983 Alabama Supreme Court 82-1236.
    Roger C. Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The appellant, Oliver, was indicted and convicted for the murder of Luviner Davis in violation of Alabama Code Section 13A-6-2 (1975). Sentence was life imprisonment. Two issues are presented on appeal.

I

Oliver alleges that the trial judge committed reversible error in denying his motion in limine which sought to prevent the prosecutor from cross examining defense character witnesses concerning what they had heard about the defendant’s juvenile court record. The trial judge ruled that if defense counsel placed Oliver’s reputation in issue the court would allow the State to cross examine the character witnesses about “any rumors they have heard about juvenile convictions or juvenile charges.”

Alabama Code Section 12-15-72(b) (1975) states: “The disposition of a child and evidence given in a hearing in the court shall not be admissible as evidence against him in any case or proceeding in any other court whether before or after reaching majority ... . ” This rule precludes the prosecutor, in cross examining a reputation witness for the defendant, from asking if the witness had heard anything involving any juvenile court records or proceedings against the defendant. Green v. State, 352 So.2d 1149 (Ala.Cr.App.1977). However, this does not prevent from cross examining the witness with respect to incidents which were the subject of prosecution in the juvenile court where no reference is made to any proceedings in that court. Green (prosecutor may ask witness if he had heard that defendant had been suspended from high school for fighting where juvenile court proceedings against defendant arising out of incident were not mentioned). See also Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 381, 252 So.2d 33 (1971). Cf. Love v. State, 36 Ala.App. 693, 63 So.2d 285 (1968) (error to allow prosecutor to ask defendant if he had been sent to reform school for breaking into places).

Even though the overruling of the motion in limine was error, it was not reversible error. Here, Oliver never presented any character witness to testify to his character and consequently the State never cross examined any witness about what they had heard about Oliver’s juvenile convictions or charges. “(T)here appears to be general agreement among the cases that a denial of a motion in limine cannot in and of itself constitute reversible error, since the objectionable material has not yet reached the jury’s ears, and may never reach the jury at all.” 75 Am.Jur.2d Trial, Section 165 (1974). To the same effect, see also Annot. 63 A.L.R.3d 311, Section 5 (1975). This is compatible with this Court’s recent holding that “a violation of the exclusionary ruling granting a motion in li-mine does not always or automatically result in ineradicable prejudice to the accused and error requiring a mistrial.” Richardson v. State, 439 So.2d 756, 757 (Ala.Cr.App.1983).

II

The prosecutor’s comment on Oliver’s girlfriend’s failure to testify at trial was not in violation of the rule that one party may not comment unfavorably on the other party’s failure to produce a witness supposedly favorable to that party if the witness is equally available to both sides.

The girlfriend was first mentioned by Oliver on direct examination. On cross examination, he stated that his girlfriend’s name was Sputnik McKinzey, although he had told the investigating officers that he did not know her “real name” or “real last name”. Since Oliver had a superior means of knowing of the identity of his girlfriend, the girlfriend was not equally available to the State. The relationship between the girlfriend and Oliver would reasonably be expected to affect her personal interest in the outcome of the case and is another factor to consider in determining her availability to the State. McMorris v. State, 394 So.2d 392, 402 (Ala.Cr.App.1980), cert. denied, Ex parte McMorris, 394 So.2d 404 (Ala.1980). Thus, it was not error for the prosecutor to comment in closing argument upon Oliver’s failure to call his girlfriend as a witness. Henry v. State, 355 So.2d 411, 413-14 (Ala.Cr.App.1978).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.