author: LEIGH M. CLARK, Retired Circuit Judge. TYSON, Judge,

text:
    Lee Anton SHASSERE, Jr. v. STATE.
    8 Div. 901.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied June 12, 1984.
    Certiorari Denied July 27, 1984. Alabama Supreme Court 83-1045.
    William J. Underwood, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty of attempted murder as charged in an indictment reading in pertinent part as follows:

“Lee Anton Shassere, Jr., ... did, with the intent to commit the crime of murder attempt to commit said offense by pointing a loaded pistol at Tom Wimberly and pulling the trigger thereby attempting to fire said pistol.”

Alabama Criminal Code, § 13A-4-2(a) provides:

“A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”

Section 13A-4-2(d)(l) provides that an attempt is a Class A felony if the offense attempted is murder. The trial court sentenced defendant to imprisonment for 15 years. The minimum time of imprisonment for a conviction of a Class A felony is 10 years. § 13A-5-6(a)(l).

According to the undisputed evidence, the incident that furnished the basis for the alleged crime occurred on the night of December 29-30, 1980. The alleged victim and Deputy Sheriff Dale Holley were both deputy sheriffs for Colbert County. They testified that while they were on patrol that night soon after midnight they saw a motor truck, weaving around the road. Deputy Holley testified:

“All right, we stopped the car [the patrol car] and Tom went to the driver’s side and I, being as I was riding on the passenger’s side, I always go to the other side to watch that door, and got up to the truck and noticed that the driver had been drinking. So we asked him to step out and I watched the other subject to make sure, you know, that nothing happened as far as the passenger in the truck’s part. And then I asked the passenger to step out and we went around to the pavement side of the road to get away from the ditch.”

Soon thereafter, the driver of the truck, who was identified as the defendant Shas-sere, and a passenger in the truck, whose name is Simmie Black, were directed to get in the patrol car with Officer Wimberly, who drove the car to the Muscle Shoals Police Department while Officer Holley was driving there in the truck. Defendant was subjected to breath analysis tests. Soon thereafter, the defendant, having been arrested for driving under the influence of intoxicating liquor, was transported in the patrol car by Officer Wimberly to the Colbert County Jail in Tuscumbia. In the automobile with them was Simmie Black. Officer Holley followed them in the truck.

During substantially all of the time of the circumstances narrated above, Officers Holley and Wimberly were in radio contact with Officer Irving Hargett, Jr., who was the night shift jailer at the Colbert County Jail. Officer Hargett testified that he saw the patrol car drive up, Officer Wimberly get out and open the door for Shassere and that Shassere had a pistol “in his hand, gripped,” that there was some commotion in or about the patrol car, and then an officer or the officers escorted defendant into the jail, where he was booked. The witness said that while defendant was in the jail, the defendant made a statement as follows:

“The statement was such that the defendant made to Officer Wimberly that he either intended — thoroughly intended to kill him or he thoroughly intended to shoot him; I don’t remember, it’s not too clear.”

On cross-examination, the witness testified that he was standing about ten feet from the defendant at the time the defendant got out of the automobile with a pistol in his hand. Upon being asked whether he heard a revolver click at that time, he said, “I don’t recall.” Defense counsel clicked a revolver while about twenty-five feet from the witness, which the witness stated he heard. He further testified that “during the commotion and everything, no, sir, I did not hear a gun click.”

During the lengthy testimony of Deputy Sheriff Wimberly, he testified:

“So we went to Muscle Shoals and ran the P.E.I. test, and the result of the test was .19. We left there and went to our jail, when I got to the jail, I pulled up and got out of the car, opened the door and told Mr. Shassere, said, to get out. And he sat there, and I said, Lee, don’t make me get you out of the car. At that point, he turned and put his feet on the ground and his hands were out of my sight for a moment — like this — and the next thing, he came up and he had a pistol. He was pointing at me and he said, You s.o.b., I’ll shoot you. Then I drew my revolver and had it on him, the gun — his pistol snapped and I grabbed his wrist and pushed it away from me and put my pistol back up, we wrestled around on the back of the patrol car; I had him down on the back of the patrol car and put my arm across his throat and got the pistol away from him. I pitched it to Dale [Officer Holley] and he came walking up — or running up; I pitched the pistol to Dale, and still the scuffle going on and we fell into the door and got him on the inside of the booking room. And as they have stated, things kind of calmed down a little bit; I was nervous, mad, I guess the whole bit. And that’s when the statement was made; we were standing just inside the door that — as we were wrestling on the trunk lid of the car, I had my arm across his throat, my hand holding that pistol away from my body, and he said something, you m.f. I’ll kill you. And after we got on the inside, he told me, said, I’m probably going to make you mad, but that’s the first time in four years my gun has misfired. And he said, I fully intended to shoot you.
And we booked him in, charged him with Driving While Intoxicated, and I don’t know, there were several charges that were brought — Driving While Intoxicated, No Driver’s License — but at the time he made these statements there were no questions asked.”

Under the caption, “APPELLANT WAS NOT INFORMED OF HIS MIRANDA WARNING,” it is contended in appellant’s brief, “Thusly statements made by Appellant, ‘that’s the first time in four years the gun never went off,’ ... and five to 15 minutes later a statement ‘I intended to shoot the deputy’ are inadmissible and not res gestae.” In the portion of appellant’s brief just quoted he refers to a portion of the testimony of Officer Wimberly as to defendant’s statements of an incriminating nature to the effect that he intended to kill Officer Wimberly. It has been repeatedly held that the requirement of Miranda warnings is not applicable to spontaneous statements of an accused under circumstances similar to those presented in the instant case.

“A spontaneous statement, blurted out by the accused and volunteered to a police officer prior to any questioning, is admissible against him even though he was not given the Miranda warnings. “Hammons v. State, 371 So.2d 986 (Ala.Cr.App.1979; Espy v. State, 365 So.2d 356 (Ala.Cr.App.1978).” Ervin v. State, Ala.Cr.App., 399 So.2d 894, 897 (1981).

We disagree with appellant’s contention that the incriminating statements of defendant were not properly admitted in evidence.

In the next contention for a reversal in appellant’s brief, he challenges the admission in evidence of State’s Exhibit # 1. The exhibit consisted of an unloaded pistol, which was offered by the State as the pistol in the hand of defendant at the time he was leaving the patrol ear at the Colbert County Jail. The exhibit was offered and received in evidence during the testimony of Officer Holley, who had testified that it was the same pistol that Officer Wimberly had taken from defendant and had thrown to Officer Holley and that it was “in reasonably and substantially in the same condition as it was when you [he] received it on the morning of December 29, 1980,” except for the fact that it was not loaded at the time it was offered and admitted in evidence. Appellant continues the complaint that he made on the trial that the witness identified it partly by the serial number thereof and that the witness was relying on notes made by Officer Wimberly, rather than Officer Holley, as to the serial number. Appellant argues therefrom that such testimony constituted hearsay evidence, and to some extent some of the particular testimony can be classified as hearsay, but on the whole we are of the opinion that the pistol was properly identified by Officer Holley as the weapon in the hand of defendant as he emerged from the patrol car at the Colbert County Jail. The trial court was not in error in overruling defendant’s objection to the offer in evidence by the State of State’s Exhibit # 1.

For a better understanding of our discussion of other issues presented by appellant, we deem it appropriate at this time to summarize the evidence presented by defendant. The only witness called by defendant to testify as to any of the facts and circumstances of the alleged crime was the defendant himself, with the possible exception that the defense called Deputy Sheriff Earl Harbor, who testified briefly, chiefly on voir dire out of the presence of the jury, as to the partition between the front seat and the rear seat of patrol cars of the Sheriff's Department of Colbert County, which is not involved in any issue on appeal. The only other witnesses for the defense were five character witnesses, two from Memphis, Tennessee, where defendant lived and three from north Alabama, all seemingly well known and highly regarded, who testified unstintingly as to defendant’s good general reputation and to his good reputation for truth and veracity and peaceableness and non-violence. The defendant testified steadfastly that he did not pull the trigger of the pistol. He said he had owned the pistol for a long time, that he had it with him in the truck at the time he was apprehended by the officers and transferred to the patrol ear, that he became greatly concerned about his having the pistol in his coat in the rear seat of the patrol car. He testified loquaciously as to what occurred at the time of his arrival in the patrol car at the jail, including the following:

“Well, could I go back just a little to tell you what happened inside the car — Mr. Wimberly opened the car door and said, Lee, get out, we are going to be here about six hours or something like that. And I said, well, all right, and I patted myself on the leg like that, and when I did, I felt this gun in my pocket. It kind of shocked me, you know, I had forgot that I had the thing in there, and I pulled it out and I showed it to Simmie, and he’s sitting there, and his eyes got big — he got bug eyed, you know — and I looked over to him — I’m always playing tricks on him, you know. I said, here you boys want a gun, just take this, here’s a good chance, you know. And he started saying oh, boss, don’t make me take that gun — he didn’t want it. And I said, well, isn’t this a fine thing, so I said, I guess I’ll have to give it to the policeman over there. And he said that’s a good idea, give it to him. So I stepped out of the patrol car and held the gun up in the air — held it up in this fashion and I walked toward the policeman, and I said, hey, I think you’d better take this — some words in that manner like that. And as I stepped about two steps toward him, he grabbed me and threw me back on the trunk of the car and started banging the gun against the window of the patrol car on the trunk. And Simmie Black was looking out at me and his eyes were looking like that, you know, that gun— everytime it hit the window, well, he just — so he ducked, he hit the floor. And Officer Wimberly got the gun away from me and walked me this way. Well, as I said, just as I got out of the car, I saw this flashing light and when Officer Wimberly took me over three or four steps away from the patrol car and Mr. Holley, he came around and he had his arms loaded down with guns and cans and more guns and things like that [the reference is to rifles and other articles in the truck defendant was driving]. And he sat them down and he ran over and said, what’s the trouble, what’s the problem. And Tom here said, this man tried to shoot me, something like that. And Tom pushed me back and — Holley pushed me back and he said, turn around and face that door, which would be the glass door leading into the jail house— the outside door. And I moved a little bit too slow to suit him, and he hauled off and gave me a shove, shoved— pushed me right into that glass door; it just caved it in, just crushed the entire door.”
“Q. All right, now let me go back just a minute — do you remember if, at any time, just before Tom Wimberly jumped at you or jumped at your hand or took the gun away from you, did you ever have the gun breeched as it is now breeched?
“A. I believe I did, yes, sir, when I stepped out of the patrol car in order to make sure he didn’t think I was going to shoot him, I had it up like this. Now before I got to him, he being a tall man now, he was up like that, and it was dark, I think I closed it like that. In fact, I believe I said the words to him, I’ve got the breech open — I said the breech is open. And then when I got up to him, I just went and closed the breech and gave him the gun. And that’s when he said, son of a b ...
“Q. All right, did you ever pull that trigger?
“A. No.
“Q. All right—
“A. No, before you pull the trigger, you’ve got to pull back on the hammer. “Q. You’ve got to pull the hammer back first?
“A. Yes, sir, that’s right.
“Q. Well, I didn’t hear Mr. Wimberly say anything about whether the hammer was pulled back or not — was it pulled back, as far as you know? “A. No.”

The defendant proceeded to testify that in the pistol at the time was a live bullet, the bullet that had been introduced by the State as State’s Exhibit 2, a bullet that had on it the indentation of the firing pin of the pistol. In explanation thereof, defendant testified that this indentation had been made by defendant in July or August of 1980 when he pulled the trigger to shoot at a snake and the “gun snapped” without a discharge.

By another issue presented in appellant’s brief, it is contended that the trial court erroneously admitted in evidence, on cross-examination of defendant’s character witnesses, testimony to the effect that defendant had been guilty recently of criminal conduct other than the specific criminal conduct charged in the instant case. Some questions along this line were directed to each of the five character witnesses. A complete recital of all of the testimony in this particular respect, covering twenty or thirty pages of the transcript, would be unnecessary and inappropriate in this opinion, we think. We now recite a large part. We include an inquiry addressed on cross-examination to Mrs. Taylor, one of defendant’s character witnesses, in which are included the pertinent remarks of counsel and the rulings of the trial court:

“MR. PATTON [District Attorney]: May I proceed?

“BY THE COURT: Yes, sir, go ahead.

“MR. PATTON CONTINUES: Mrs. Taylor, you testified that you knew the defendant and you knew him up until this time, is that correct?

“A. Yes, sir.

“Q. And you knew he was of good character?

“A. Yes, sir.

“Q. Were you familiar with the fact that on the 29th of December, 1980, when he was arrested in Colbert County, Alabama, he was in possession of two weapons that were stolen in Memphis in 1978?

“A. Yes, sir.

“MR. GRAHAM [One of defendant’s two attorneys on the trial]: Just a minute, now we move for a mistrial; that has nothing to do with the issues involved in this case, there has been no charge made against him of possession of stolen instruments, there has been nothing proven in this case of any such thing. As far as we are concerned, that’s just an assertion for the benefit of prejudicing the minds of the jury. It’s illegal, the proper predicate is not laid, there is no connection between what he is saying and any evidence before this jury at this time at all. It is calculated to prejudice and inflame this jury against this man by prejudicial matters and we move for a mistrial; and ask that the Court, at this time, grant a mistrial.

“BY THE COURT: Okay, the Court denies your motion for a mistrial as you’ve placed the character of the defendant before the Court, and the District Attorney has a right to cross-examine on the character and reputation of the defendant.

“MR. UNDERWOOD [Defendant’s other trial attorney]: Judge, we would ask that he not bring up those matters simply because the Sheriff's Department investigated those guns and no charges were filed against Mr. Shassere, but they came up with an explanation—

“MR. GRAHAM: No charges at all against him, is just an assertion, that’s all.

“MR. PATTON: If it please the Court—

“BY THE COURT: I overruled the motion.

“MR. GRAHAM: Well, our next motion would be that the jury, if Your Honor please, be instructed by the Honorable Court to disregard that, and to admonish the State’s prosecutor to not ask any more such questions unless there is some foundation or basis for it, because as the record shows, there is no testimony about that at all; there’s no charge being made against this man for anything. And actually there was nothing to charge him about, it’s just thrown out here for the jury’s consideration, but was no basis to it, and on that ground, we would ask the Court to instruct the jury not to consider this.

“BY THE COURT: The motion is denied.

“MR. GRAHAM: We respectfully except to the Court’s ruling.

“MR. PATTON: You may answer the question I asked you.

“A. What?

“Q. Did you know he was in possession of two weapons that were stolen in Memphis in a burglary?

“A. No, I didn’t.

“MR. GRAHAM: Wait a minute, I want to object to this on the same grounds assigned. Your answer was no.

“A. Correct.

“MR. PATTON CONTINUES: Were you familiar with the fact that on the occasion when he was arrested that he was in possession of marijuana?

“MR. GRAHAM: We object to this, it’s not so, it’s illegal, irrelevant and immaterial.

“MR. PATTON: Now, wait just a minute—

“MR. GRAHAM: There’s no testimony in this case, there’s no charge made; I assume if he had been in possession of it, charges would have been made. There’s no evidence at all up to this point that we’ve had the right to rebut or explain about any marijuana. So again, it’s just calculated to prejudice the minds of the jury and we ask for a mistrial.

“BY THE COURT: Overrule the motion.

“MR. GRAHAM: We ask that the Court instruct the jury to disregard this question since there is no evidence of any such thing. He’s just asking questions out of the clear air here. There’s no testimony in the record to that effect, no charge is made against this man. And on that basis it is denying him the right to due process of law to a fair and impartial trial.

“BY THE COURT: The motion is overruled.

“MR. GRAHAM: We except.

“MR. PATTON CONTINUES: Were you aware of that?

“A. No.

“MR. GRAHAM: Now we respectfully move that it be stricken. She doesn’t know any such thing. She has answered both questions in the negative and he goes on and talks about these things. There is no testimony about it at all and it’s nothing more than just trying to prejudice the minds of the jury against defendant.

“BY THE COURT: Overrule the motion.

“MR. GRAHAM: We except.

“MR. PATTON CONTINUES: Would the fact he was in possession of two weapons that were stolen in Memphis some time prior to that, the fact that he was in possession of marijuana on this occasion, would this in any way change your mind about his good reputation if that was true?

“MR. UNDERWOOD: Your Honor, we would object on the ground that there hasn’t been any testimony introduced of this fact.

“MR. PATTON: I want to approach the bench.

“(At this time the attorneys approached the bench).

“MR. GRAHAM: We move for a mistrial on the ground that the statements that he’s making are based on — some of them are not founded at all on any kind of testimony, no charge having been made, and if there is any pending investigation, there has been certainly no conviction on any of these things, and it’s calculated just to prejudice the minds of the jury against this defendant, who is here on one specific charge and no others. On that basis, we ask for a mistrial.

“BY THE COURT: Mr. Graham, you placed the defendant’s character and reputation before the Court with your witness and this is cross-examination; and the Court denies your motion.

“MR. GRAHAM: We respectfully move the Court to instruct the jury not to consider it, because it’s not a part of this case, he’s not been charged with anything, and there’s been no evidence in this case against this defendant for any such allegations, and as such, it’s denying him of a fair trial and due process of law.

“BY THE COURT: The motion is denied.

“MR. GRAHAM: We respectfully except to the Court’s ruling.

“MR. PATTON CONTINUES: Mrs. Taylor, do you recall my question?

“A. Not all of it after all the confusion, no.

“Q. All right, would the fact, if it was a fact, that the defendant was in possession of two weapons that were stolen in a burglary in Memphis, and further — on December 29th, the two weapons — and further that he was in possession of marijuana on this occasion, would this in any way affect your opinion as to his good character if you’d known that?

“MR. GRAHAM: We object on the same grounds assigned.

“A. No.

“BY THE COURT: Overruled.

“MR. PATTON CONTINUES: You would still be of the same opinion that he was a man of good character even if he was carrying marijuana and stolen goods?

“MR. GRAHAM: Now if Your Honor please, he is not asking the question correctly. We didn’t ask anything about a man of character, we asked about a man’s reputation. A reputation is different technically, and in substance, from what a man’s actual character is. We asked this lady about what his general reputation was, and that’s what the law requires us to ask — what a man’s general reputation is in the community where he lives. And on that basis, in addition to the other grounds assigned, we object to the question.

“BY THE COURT: The objection is overruled.

“MR. GRAHAM: We except.

“MR. PATTON CONTINUES: You may answer the question.

“A. I said, no, it wouldn’t change my mind about him.

“Q. The fact that he had stolen merchandise, the fact that he had marijuana—

“MR. GRAHAM: Now if Your Honor please, he is repeating the same thing over and over.

“BY THE COURT: Sustain the objection, repetitious.

“MR. PATTON: This is cross-examination, if it please the Court.

“BY THE COURT: You’ve already asked her that, let's move on.

“MR. PATTON CONTINUES: Okay, so then you are of the opinion that people that have stolen merchandise are people of good character, is that correct?

“A. Not necessarily, no. He may not have known it was stolen, I don’t know that.

“Q. What if he knew it was stolen—

“MR. GRAHAM: We object, there is no evidence that there was ever any property taken off this man where he knew it was stolen; no evidence at all in this case, and it’s repetitious and argumentative. She has answered the question and respectfully objects to the question as asked.

“BY THE COURT: Overruled, let’s move on.

“MR. GRAHAM: We except.

“MR. PATTON CONTINUES: Do you recall my question — what if he knew that it was stolen property, or had reason to believe it was stolen — would this in any way affect your opinion?

“MR. GRAHAM: We object because there is no evidence — a hypothetical question, and there is no evidence to make that a part of the hypothesis.

“BY THE COURT: Cross-examination.

“MR. GRAHAM: Well, they have to be properly hypothecated [sic], if Your Honor please. There’s no evidence in the case— he said, if the man knew, or if he’s stole a horse. There’s no evidence that he ever stole a horse — that if he knew anything was stolen.

“BY THE COURT: Objection is overruled.

“MR. GRAHAM: We except.

“BY THE COURT: You may answer the question.

“A. No, it wouldn’t change my mind about him.

“MR. PATTON: All right, I believe that’s all.

“RE-DIRECT EXAMINATION”

We do not question Mrs. Taylor’s asserted inability to remember all of the question that had been asked her on cross-examination “by reason of all the confusion” that she apparently attributed to the torrential protests of counsel for defendant to the efforts of counsel for the State to show criminal conduct on the part of the defendant other than that for which he was being tried, and the trial court could have understandably been hindered thereby from correctly assaying the basic reason for the protest against the inquiry. Such profusion of language was neither necessary nor helpful. Nevertheless, it is to be discerned from the lengthy portion of the transcript just quoted that defendant’s protest was grounded on the exclusionary rule that “forbids the State to prove the accused’s bad character by particular deeds.” Gamble, McElroy’s Alabama Evidence, § 69.-01(1) (1977). There is no contention by appellee that the inquiry comes with any exception to the general rule of exclusion. Appellee captions its countercontention to the issues presented by appellant now under consideration as follows:

“WHETHER APPELLANT PROPERLY PRESERVED ERROR CONCERNING OBJECTIONS RAISED AT TRIAL? NO.”

We agree, as already indicated, that valid grounds of objection by defendant’s attorneys were obscured greatly by verbal profusion, but we do not agree that no valid ground is to be found for the position taken by defendant’s counsel as to the inadmissibility of the testimony as to other crimes or misdeeds by defendant. We also disagree with the trial court’s rulings on the point, except the ruling denying defendant’s motion for a mistrial, which we find is unnecessary to determine. In cross-examining some of the other character witnesses, they were also asked questions predicated upon a notion or assumption that defendant had been guilty of possessing stolen property. The following occurred at the commencement of the cross-examination of one of the character witnesses:

“BY MR. PATTON:
“Q. Dr. Gaisser, would the fact that — if it was a fact that on December 29, 1980, defendant was in possession of property that was stolen in a burglary in Memphis, Tennessee, knowing or having reason to believe that that property was stolen, would that in any way affect you about his reputation — if he knew that he did those things?
“MR. UNDERWOOD: We object on the grounds Mr. Graham annunciated earlier in the proceedings.
“BY THE COURT: Anything else?
“MR. UNDERWOOD: And if the Court would so, we would just lodge that objection everytime that the District Attorney makes these comments and assign the same grounds so we don’t have to go through with it over again. Is that all right with the Court?
“BY THE COURT: That’s fine.
“MR. UNDERWOOD: Okay, we object. “MR. GRAHAM: That’s what we assign, and we object.
“BY THE COURT: The Court does overrule the objection.
“MR. GRAHAM: We except.
“A. Nothing would shake my confidence in Lee Shassere. And I don’t believe that he would steal things. I can imagine stolen things maybe being in his vehicle, but he may not be the one who put them there. I have every confidence in this man’s character.
“Q. All right, sir, so we understand one another — that he knew was stolen or had grounds to believe it was stolen and that he had it in his possession?
“MR. GRAHAM: Now we will respectfully object to that, strenuously object to it. There is no evidence in this Court or in any other court that I know of or have ever heard of that this man had property in his possession that he knew was stolen or had reason to believe that it was stolen. And the question is a hypothetical question, but the hypothesis hasn’t been proven. Therefore, the question is illegal, this is just a statement by Mr. Patton; there are no charges on him for any such thing, there has been no evidence in this case before this jury of any such thing, they are unfounded and the statement that he is propounding here, Dr. Gaisser is not supported by evidence in this case, and it is for no other purpose than to prejudice the minds of the jury. “BY THE COURT: The objection is overruled.
“MR. GRAHAM: We except.
“A. Well, I would have to repeat what I said — if Mr. Shassere knew they were stolen, I’d have every confidence that he had some good reason, some legitimate reason for having it there.
“MR. PATTON CONTINUES: All right, would the fact, if it were a fact that he had known at this time that he had illegal drugs, to-wit: marijuana in his possession at that time, would that in any way affect your opinion as to his reputation and his character?
“MR. GRAHAM: We object on the same grounds heretofore assigned on the other related question.
“BY THE COURT: The objection is overruled.
“MR. GRAHAM: We except.
“A. Well, I think I know Mr. Shassere well enough that nothing would impair my confidence in him or his veracity or the liability. There would be some acceptable explanation for his being in that circumstance, in my opinion.
“MR. PATTON CONTINUES: All right, sir, ten rolled cigarettes in his shirt pocket?
“MR. GRAHAM: Now if Your Honor please, we object to this, it is illegal, irrelevant, immaterial, it is highly prejudicial; there is no testimony in this case, if there is, in fact, some substance for the question, which we don’t accept. That is not a proper matter to be brought up in this case, and it’s illegal, irrelevant and immaterial and highly prejudicial, and relating in no way to the issues involved here.
“BY THE COURT: Overrule the objection.
“MR. GRAHAM: We except.
“A. I’d say the same thing, that there would have to be some good reason for them being there.
“MR. PATTON: All right, sir, I believe that’s all.”

Appellee responds by saying in effect that the inquiries by the State on cross-examination of the character witnesses were proper upon the basis, as set forth in Gamble, McElroy’s Alabama Evidence, § 27.01(5)(1977) that the State was “testing the credibility” of the character witnesses. However, as is to be observed from the above quotation from the transcript, the witnesses were not interrogated as to whether they had “heard reports, rumors or statements derogatory of the accused,” which is the language of the particular cross-examination considered proper in Gamble, McElroy’s Alabama Evidence, supra. The questions were hypothesized, not upon reports, rumors, or statements by others, but upon the assumed actual existence of such disreputable conduct. We have no doubt that by this process of cross-examination the State was able, whether intentionally or not, to cause the jury to believe that the interrogator for the prosecution thought, whether correctly or not, that defendant had been guilty of the criminal or disreputable conduct referred to in the questions. In our opinion, reversible error was committed in overruling defendant’s objections to such questions by the State on cross-examination of defendant’s character witnesses as to criminal conduct or misdeeds unrelated to the charge for which he was being tried.

Two or more issues in addition to those that have been discussed above are presented by appellant and discussed to some extent in the brief of each party. We find it unnecessary to determine such issues at this time, as the case should be reversed for reasons stated above and probably the other issues presented will not be involved on another trial of the case.

There was error prejudicial to defendant in the rulings adverse tó defendant whereby the State was able to communicate to the jury information tending to show that the prosecution had information tending to show that defendant had been guilty of criminal and disreputable conduct in addition to the crime of attempted murder for which he was being tried.

The judgment of the trial court should be reversed and the cause remanded for another trial.

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

REVERSED AND REMANDED.

All the Judges' concur.

TYSON, Judge,

concurring.

I concur in the foregoing opinion as prepared in this cause by Judge Leigh Clark for this court.

I wish to note that the form of the question to be asked by the State’s attorney of character witnesses with reference specific acts of misconduct on the part of the appellant should be, “Have you heard”, rather than “Do you know”, Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948); Veith v. State, 48 Ala.App. 688, 267 So.2d 480 (1972).


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Boyd W. JEFFERS v. STATE.
    5 Div. 817.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1137.

      Hiram Dodd, Jr. and Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen.; and Fred F. Bell, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The Coosa County Grand Jury, in its March, 1983 term, indicted appellant, Boyd W. Jeffers, for attempted murder of Houston Fred Edwards. Appellant was found guilty as charged in the indictment, and on August 26,1983, he was sentenced to twenty-one years' imprisonment in the state penitentiary.

On January 15, 1983, at about 11:30 a.m., Fred Edwards left work and was driving home, when he noticed a small brown car following him. The car pulled up beside him and he recognized appellant as the driver. He saw appellant’s arm raised, so he hit his brakes and threw his body backwards. He heard a gunshot, and the glass in the window on the driver’s side, in the front windshield and in the rearview mirror shattered. Edwards was not injured, so he drove to a phone and called the Sheriff’s Department to report the incident. He was able to recall part of the car tag number and a description of appellant’s clothing.

Teresa Edwards stated that she and Fred Edwards were married January 15, 1983, on the afternoon of the shooting. She and appellant had been married, but were divorced on November 18, 1982. She testified that appellant had previously threatened to kill Edwards.

David Windsor, an investigator for the Coosa County Sheriff’s Department, testified that the distance from appellant’s home in Boaz to the place where the shooting occurred in Coosa County was in excess of one hundred miles and that the distance took him approximately one hour and forty-five minutes to travel.

The defense presented two alibi witnesses, Patsy McCormick and Jack Hilley. Ms. McCormick, a friend of appellant and his daughter, testified that she saw appellant in front of her home in Boaz between 11:20 a.m. and 11:30 a.m. on the day of the shooting. Mr. Hilley, also appellant’s friend, testified that he saw appellant in the vicinity of his home in Boaz at about 10:45 a.m. on the day of the shooting.

Appellant now challenges the sufficiency of the evidence to support his conviction. He maintains that since he presented an alibi defense and the victim was the sole witness placing him on the scene of the shooting, the jury verdict should be overturned.

It is axiomatic that a conflict between the State’s case and a defendant’s alibi presents a jury question. Garrison v. State, 416 So.2d 793 (Ala.Cr.App.1982); Walker v. State, 416 So.2d 1083 (Ala.Cr.App.), cert. denied, 416 So.2d 1083 (Ala.1982). A verdict rendered thereon will not be disturbed on appeal. Stuckey v. State, 57 Ala.App. 85, 326 So.2d 150 (Ala.Cr.App.1976). Furthermore, a jury may believe or disbelieve all or any part of the testimony presented by either side, and even when all of the evidence against an accused comes from the victim the jury may believe such uncorroborated testimony beyond a reasonable doubt and convict the accused. Gilmore v. State, 358 So.2d 501 (Ala.Cr.App.1978). The jury’s finding in the case before us must therefore be upheld.

Appellant also contends that there was a material variance between the allegations contained in the indictment and the proof offered at trial. Specifically, appellant argues that the State failed to prove that he was ever in possession of a shotgun, firearm or explosive, or that he attempted to cause the victim’s death with such a weapon.

For a variance between the indictment and the evidence to be material, it must be such as to be misleading or substantially injurious to the accused in making his defense. Boutwell v. State, 432 So.2d 531 (Ala.Cr.App.1983); Coker v. State, 396 So.2d 1094 (Ala.Cr.App.1981). We find no variance between the indictment and the evidence. Appellant’s contention actually goes to the sufficiency of the evidence, i.e., whether the victim’s testimony that he saw appellant’s arm raised toward him, heard a gunshot, and then observed the glass in his car windows shatter was sufficient to prove that appellant was in possession of a shotgun, firearm, or explosive. We find that the State presented sufficient evidence for the jury to conclude, by fair inference, that appellant was guilty, beyond a reasonable doubt, of the crime charged. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). We will not substitute our judgment for that of the jury.

Appellant further argues that the trial court impermissibly reopened the case after the jury rendered its verdict by allowing David Windsor to testify at his sentencing hearing. Mr. Windsor’s testimony was that fragments of lead and fiber shotgun wadding were found in the victim’s car after the shooting incident. This testimony was irrelevant to sentencing; the jury had already determined appellant’s guilt, but we find no injury to the substantial rights of appellant created thereby. The appellant must demonstrate that the error was probably injurious to his substantial rights before a reversal is required. A.R.A.P. 45B; Carlisle v. State, 371 So.2d 975 (Ala.Cr.App.) cert. denied, 371 So.2d 975 (Ala.1979).

We have addressed each of appellant’s contentions and, in addition, we have searched the record for errors prejudicial to the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    Darrel Wayne RALEY v. STATE.
    1 Div. 652.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1135.

      Robert F. Clark and John Furman, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

The State of Mississippi, through its governor, undertook to extradite petitioner, Darrel Wayne Raley, from Alabama. Submitted with Mississippi’s request were the indictment, an arrest warrant charging Ra-ley with conspiracy to possess marijuana with intent to distribute, and the governor’s request for extradition.

Appellant filed a petition for writ of ha-beas corpus in Mobile on May 13, 1983. A hearing was held and the petition was denied on June 30, 1983. Petitioner appeals.

Sergeant Terry Bulloch of the Pascagou-la, Mississippi, Police Department appeared as a state’s witness. He testified that he had seen and talked with the appellant on previous occasions and also knew the appellant’s father. He testified that his investigations showed that the appellant, who was present in the courtroom, was the same Darrel Raley who was named in the governor’s warrant and that “he is the one that we want for smuggling marijuana.”

The United States Supreme Court, in Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), held that once the governor of the asylum state has granted extradition to a demanding state, then a court of the asylum state, considering release on habeas corpus, can do no more than decide (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demand state, (3) whether the petitioner is the person named in the request for extradition, and (4) whether the petitioner is a fugitive.

Due to the inherent individual rights involved, the federal statutory and constitutional provisions regulating interstate extradition and habeas corpus are controlling, exclusive of state power. Innes v. Tobin, 240 U.S. 127, 36 S.Ct. 290, 60 L.Ed. 562 (1916). Additionally, in Doran, supra, the Supreme Court held that the courts of an asylum state are bound by Article IV, § 2, of the United States Constitution, by 18 U.S.C. § 3182, and where adopted, the Uniform Criminal Extradition Act. 439 U.S. at 288. See also, State v. Parrish, 242 Ala. 7, 5 So.2d 828 (1941); Rayburn v. State, 366 So.2d 698 (Ala.Crim.App.1978), affirmed, 366 So.2d 708 (Ala.1979), Ala.Code § 15-9-47 (1975).

The determination of probable cause is a matter left in the hands of the judicial system of the demanding state; the judicial system of the asylum state is without power to review that determination.

The indictment and arrest warrant in the instant case present sufficient proof that the determination of probable cause has been made. Appellant’s arguments that he is a different person and that he was not in Mississippi when the crime was committed are not properly addressed to this tribunal. When the requisition has been attested and acted upon by the governor, the burden is upon the appellant to overcome the prima facie proof of the existence of every fact which the governor was obliged to determine before issuing the extradition warrant. Krenwinkel v. State, 45 Ala.App. 474, 232 So.2d 346 (1970).

Accordingly, the circuit court's denial of appellant’s petition for writ of habeas corpus is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Leslie BROADNAX v. STATE.
    1 Div. 726.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1123.

      Arthur P. Clarke, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Leslie Broadnax was indicted and convicted for theft of property in the first degree. Alabama Code § 13A-8-3 (1975). He was sentenced to life imprisonment as an habitual offender. On appeal, he contends that he was denied his constitutional right to a speedy trial.

The facts are as follows:

July 6,1981 Theft committed and Broadnax arrested.
August 18,1981 Indictment.
September 2,1981 Speedy trial requested.
September 3,1981 Arraignment.
February 11,1982 Motion for Discharge for violation of "speedy trial rule” (“180 days had passed and the petitioner has not been to trial yet”).
October 10, 1981 Broadnax’s probation in another case is revoked.
August 26, 1983 Motion to dismiss filed. Denied on August 30,1983.
September 21,1983 Trial

The length of time from arrest to trial is two years and two and one-half months. Immediately before the trial started, Broadnax’s appointed counsel renewed his motion to dismiss and the following occurred:

“MR. MCCLEAVE (Defense Counsel): All right. Judge, at this time I’d like to renew my Motion to Dismiss. I filed a Motion to Dismiss in this case back on August 24th of 1983 alleging that Mr. Broadnax’ right to a speedy trial had been violated. These causes of action— well, this cause of action, I believe, allegedly took place on July 6th, 1981.
“Mr. Broadnax was arraigned in Circuit Court on September 3rd of 1981. Mr. Broadnax filed a motion for a speedy trial on September 2nd of 1981 and again filed a motion for a speedy trial on February 11th of 1982.
“On October 10th of 1981 Mr. Broadnax’ probation in another case was revoked and he was sent to the Penitentiary. In the meantime, he was brought back here, tried on another case; his parole finished, and he served the time on the other case. It was a theft of property case that was in front of Judge Zoghby. “During all this time, though, from the time he was arrested on July 6th, 1981, until the present Mr. Broadnax has been in the custody of the State of Alabama and he has been prejudiced in numerous ways; mainly in that he had parole time and time on another case that may very well have been run concurrent to the two cases that are before us now.
“I’d ask Your Honor to reconsider and grant our Motion to Dismiss at this time. “MR. THETFORD (Assistant District Attorney): Judge, on several prior occasions the case was continued by the Defendant. On one occasion was because the Defendant was not ready, the defense attorney was not ready. On another occasion it was continued for psychiatric exam to be done. And we would ask that the motion be denied. “THE COURT: He was brought back at least one time; is that right?
“MR THETFORD: Judge, I do not have that in front of me.
“THE COURT: This was in May of 1982. “MR. MCCLEAVE: Judge, I think there’s a question of reasonableness here. Certainly I continued it once and it was reset about a month later. But we did not ask for a two-year continuance, Judge. And we certainly believe that that would be contrary to his right to a speedy trial.
“THE COURT: Well, after you filed a motion for continuance you filed a motion for psychiatric examination, didn’t you?
“MR. MCCLEAVE: Yes. That doesn’t waive his right to a speedy trial, Judge. He has a right to have a psychiatric examination.
“THE COURT: Motion to Dismiss denied.”
(Emphasis added.)

Broadnax was given credit on his sentence for the time he had already served since his arrest. A second charge of theft was nol prossed.

In applying the four-part test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find that the delay of over two years is presumptively prejudicial and sufficient to trigger an inquiry into the remaining three-factors.

The record contains little-information on the reasons for the delay. Although Broadnax was in custody during the entire period, the State has offered no valid reason for the delay. The record shows that Broadnax was facing other criminal charges and in fact was tried and convicted while awaiting trial in this particular case. Although the record does not show when defense counsel requested a continuance, there is evidence that at least one continuance was necessary to allow counsel time for preparation. Another delay was attributable to a request for psychiatric examination. The State is not responsible for delays that result directly from the defendant’s actions. United States v. Saavedra, 684 F.2d 1293, 1296 (9th Cir.1982) (delay partially attributable to continuance granted to accommodate defense counsel’s schedule); United States v. Beery, 678 F.2d 856, 869 (10th Cir.1982) (delay attributable to defendant’s filing of 26 motions); Byrd v. State, 421 So.2d 1344 (Ala.Crim.App.1982) (delay due in part to defendant’s pretrial motions). Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker. Walker v. State, 386 So.2d 762, 763 (Ala.Crim.App.), cert. denied, Ex parte Walker, 386 So.2d 765 (Ala.1980). “Where the delay in bringing a defendant to trial ... is caused by continuances or postponements requested by the defendant, or by counsel on his behalf, his right in that respect is usually regarded as having been waived, and he may not complain of the delay.” Annot., 57 A.L.R.2d 302, § 5 (1958 and 1984 Later Case Service).

Although Broadnax has made timely assertions of his right to a speedy trial, none of the written motions contains any indication of specific prejudice. There has never been advanced the contention that the delay impaired the defense.

“While a showing of prejudice is not necessary to a finding of a Sixth Amendment violation, Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183 (1973), there is some reluctance to find a speedy trial deprivation where there is no prejudice. United States v. Brown, 600 F.2d 248, 254 (10th Cir.1979), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979).”
“Under Barker, prejudice to the defendant is assessed in light of three interests the speedy trial guarantee is designed to protect: (1) prevention of oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired.” United States v. Jenkins, 701 F.2d 850, 857 (10th Cir.1983). See also Barker, 407 U.S. at 532, 92 S.Ct. at 2192.

Here, there was no oppressive pretrial detention caused by this delay because Broadnax was serving time for another offense after his probation had been revoked. The revocation of his probation and his incarceration for that reason had nothing to do with the delay of the State in bringing Broadnax to trial. Moreover, with four prior felony convictions before 1974, and another felony conviction in 1981, we find it difficult to fathom why Broad-nax had not already been sentenced as an habitual offender under the mandatory provisions of Alabama’s Habitual Felony Offender Act. Ala.Code § 13A-5-9 (1975); Watson v. State, 392 So.2d 1274, 1276 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981).

Here, there is not even the contention that the delay caused excessive “anxiety and concern”. Also, there has not even been the contention of actual or potential prejudice or impairment to his defense due to the delay between arrest and trial.

Finding that the delay has not in fact prejudiced Broadnax, that a portion of the delay must be attributable to him, and that he was incarcerated pending trial pursuant to the revocation of his probation in another case, we find that the trial judge did not err in denying Broadnax’s motions for speedy trial.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Larry Darnell YOUNG v. STATE.
    1 Div. 729.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1145.

      Robert P. Clark, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant Larry Darnell Young, convicted of third degree burglary, was sentenced, under the Habitual Felony Offenders Act, to 30 years’ imprisonment. He prosecutes this appeal on two grounds.

I

Appellant contends first that the court erred when it proceeded to conclude his trial in his absence. During the trial, the appellant failed to return from the luncheon recess. The court delayed the case over two hours waiting for the appellant to come back. Finally, over appellant’s attorney’s objection, the trial resumed. The court conceded that if the appellant’s failure to return was through no fault of his own, a new trial would be in order. During the remainder of the trial, no mention was made of the appellant’s absence. At the conclusion of the state’s case, appellant’s attorney renewed his motion for a mistrial or in the alternative a motion for a continuance. He also moved for a directed verdict, contending that the state had failed to prove the elements of burglary in the third degree. These motions were denied.

After the jury retired and moments after they had sent a message that they had arrived at á verdict, the bonding company agents brought the appellant in and surrendered him. Appellant stated that his car had broken down. The jury verdict of “guilty as charged” was received.

It is hornbook law and fundamental to our system that a defendant is entitled to be present at every stage of his trial. It is also true, however, that a criminal defendant in a non-capital felony case may waive his right to continuous presence at trial. This waiver must be made by him personally and must indicate an affirmative intention to waive his presence as, for example, by voluntarily absenting himself from the trial itself. Haynes v. State, 40 Ala.App. 106, 109 So.2d 738, cert. denied, 268 Ala. 546, 109 So.2d 746 (Ala.1959).

A defendant’s voluntary absence from trial of a non-capital case does not void the proceedings up to that point, nor prevent the trial court from trying the case to conclusion. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). A defendant who absents himself from his trial proceedings may not later seek to profit from his own action by attacking the validity of the judicial process. Thomas v. State, 395 So.2d 1105 (Ala.Crim.App.1981); Dixon v. State, 357 So.2d 690 (Ala.Crim.App.1978).

In Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), the Court stated what has become a long-standing and well recognized rule pertaining to absent defendants:

“[Wjhere the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.” 223 U.S. at 455, 32 S.Ct. at 260.

The appellant was gone about four hours. He did not call to attempt to notify the court of his whereabouts or any problem he might have had. There was no indication that he intended to take the witness stand himself. His attorney made no offer of proof as to what his testimony would have been had he been present. No other witnesses were presented by the defense. The record indicates that this case was scheduled and rescheduled several times before the date of trial.

The court properly considered the appellant’s history of failure to appear in judging the probable validity of his excuse in this instance. We find that the trial court did not abuse its discretion in denying the motions for continuance and mistrial. Dixon, supra, at 699. The appellant voluntarily waived his right to be present at trial. He cannot by voluntary absence defeat the system.

II

Appellant next contends that the trial court erred in its failure to charge the jury on the elements of trespass in the second degree. Young asserts that one of his theories of defense supported the giving of a charge on that offense. The record contains no evidence to support a theory that appellant was guilty of nothing more than entering a building. The commentary to the statute on trespass in the second degree, Code of Alabama 1975, § 13A-7-3, suggests that this section applies if an “unauthorized intruder is found in a building but the prosecution is unable to show that he intended to commit a crime therein.” There was substantial evidence in this case that the appellant did intend to commit a crime inside the Johnson Auto Sales office. He was seen going through desk drawers. Items which belonged in those drawers were found in his pockets when he was arrested. He had also loaded a trash can with a television and a police scanner and would apparently have stolen them had the alarm not been activated. No theory of defense as regards second degree trespass was ever offered.

In light of the foregoing, the judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Edward WILLIAMS v. STATE.
    3 Div. 664.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1127.
    Maurice S. Bell, Montgomery, for appellant.

      Charles A. Graddick, Atty. Gen., and P. David Bjurberg and Jennifer M. Mullins, Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Edward Williams, the appellant, was charged in two separate indictments with the sale of marijuana. The cases were consolidated for trial and a jury found him guilty in each case. In each case he received a five-year sentence which was suspended on the condition that Williams serve two years’ imprisonment with three years on probation, with the split sentences to run concurrently. Three issues are raised on appeal.

I

Williams argues that the trial judge erred when he instructed the jury that a reasonable doubt was a doubt based on “a real reason, a substantial reason.” He contends that the use of “real” and “substantial” to modify reason instead of doubt constitutes error.

In his oral charge the trial judge instructed the jury that a reasonable doubt is a doubt “based on a reason, a real reason, a substantial reason.” After defense counsel objected, the trial judge stated:

“[Tjhis reasonable doubt means a doubt for which there is a reason. A real reason for doubt.... A real reason for doubt, that’s what a reasonable doubt is, a reason to doubt. A reason that comes from the stand to doubt the guilt. A real reason, a substantial reason, that comes from what you heard, all of it, part of it, lack of it.”

Defense counsel made further objection because he did not believe the jury needed “a real reason. They just need some inference and some doubt to be able to make up their mind.” We find no error in the judge’s instructions.

In Hall v. State, 54 Ala.App. 198, 202, 306 So.2d 290 (1974), cert. denied, 293 Ala. 757, 306 So.2d 286 (1975), it was recognized that a reasonable doubt is properly defined as “a doubt for which a reason may be given”, and the following charge was approved: “A reasonable doubt means a real doubt or a substantial doubt growing out of the evidence. It is a doubt for which a reason can be given.”

However, our Supreme Court has viewed this definition of reasonable doubt more critically. In Ray v. State, 50 Ala. 104, 108 (1874), that court held: “The second [charge] is incorrect, in defining a ‘reasonable doubt’ as one for which a ‘reason’ can be given. Every reason, whether based on substantial grounds or not, does not constitute a reasonable doubt in law.” See also Roberts v. State, 122 Ala. 47, 25 So. 238, 241 (1899) (“A mere doubt, however honestly entertained, is not enough upon which to base an acquittal. Nor is a doubt for which a reason may be given necessarily a reasonable doubt, although a reasonable doubt may be a doubt for which a reason can be assigned”). “Obviously this is true, since the doubt must be actual and substantial to entitle a defendant to an acquittal, and therefore a reasonable doubt, while a doubt for which a reason can be given may be capricious, speculative, and without the shadow of substance.” Talbert v. State, 121 Ala. 33, 25 So. 690, 692 (1899). “There can be no question but that every doubt one has, is a doubt for which a reason may be given, but it does not follow that a doubt for which a reason can be given is necessarily a reasonable doubt.” Avery v. State, 124 Ala. 20, 27 So. 505, 506 (1900) (Justices Haralson and Dowdell dissenting). “There may be a reason to doubt, which does not justify a reasonable doubt or the inference of probable innocence.” Peagler v. State, 110 Ala. 11, 20 So. 363-64 (1896).

“According to common acceptation, to give a reason for the existence of a mental condition is to state why it exists, and in that sense a reason may be given for any degree of doubt; and a reason is nevertheless a reason, though it be based upon mere conjecture, or on matters disconnected from the evidence and improper to be considered by the jury.” Avery, 27 So. at 506.

Although a requested charge which defines reasonable doubt as a doubt for which a reason can be given is misleading, Bain v. State, 74 Ala. 38, 39 (1883), its giving or refusal does not constitute error. Caddell v. State, 136 Ala. 9, 34 So. 191, 192 (1903); Avery v. State, 124 Ala. 20, 27 So. 505, 506 (1900).

While the instruction in this case may be subject to criticism, it is not erroneous in light of the authorities cited above. When read in conjunction with the entire oral charge, the objectionable portions were intended to impress on the jury the distinction between a reasonable doubt and a vague, imaginary, or possible doubt, and do not constitute such error as to require a reversal. “The doubt which requires an acquittal in a criminal case is actual and substantial. It is not any doubt, for some minds indulge doubts on every question which may be suggested, and on which they must act. It is not mere possibility or speculation, for these the imagination creates. It is the doubt the evidence generates; when the jury, carefully weighing all the evidence, cannot say they feel an abiding conviction of the defendant’s guilt. This is the most frequent definition of a reasonable doubt, and is perhaps as accurate as any which could be given.” Owens v. State, 52 Ala. 400, 404-05 (1875).

II

The prosecutor’s reference to infamous criminals of history in his closing argument did not constitute reversible error.

Williams sold marijuana to a Birmingham police officer who was working as an undercover agent in the purchase of drugs in Montgomery. At trial a number of defense witnesses testified to Williams’ good character. In his argument to the jury, defense counsel stated that Williams’ “character has not been' impeached. He has good character.” He argued that the undercover agent had “lied”, that the “whole case is on credibility”, and that Williams is “one good man”.

“MR. TRAEGER (Deputy District Attorney): He (Defense counsel) wanted to talk to you a little bit about the character of this gentlemen over here. It’s been unimpeached, unchallenged. Now I want to tell you some about some other people’s character who wasn’t challenged until a particular point but first I want to submit to you, ladies and gentlemen, Mr. Ed Williams, deacon of the church, didn’t do anything more than hide under the sancity of the church to come in here today.
“MR. BELL (Defense Counsel): Your Honor, I object to that.
“THE COURT: Overruled.
“MR. TRAEGER CONTINUING: Not going to bore you with any history lessons or anything but when you talk about character, I think some of the obvious figures that leap out from the pages of history had good, unimpeached character — until a certain point. I think you’ll see Brutus obviously, the guy that had the best character among the court of Rome — until he assassinated Caesar. You’ve got Benedict Arnold that every school kid has—
“MR. BELL: Your Honor, I think that these — that these remarks are uncalled for, that Benedict Arnold is not on trial. I wish he were.
“THE COURT: All right. Overruled .. Let’s move on.”

We cannot find objectionable the prosecutor’s references to Brutus and Benedict Arnold when our Supreme Court has approved a reference to Judas. “Argument of counsel should not be so restricted as to prevent reference, by way of illustration, to historical facts and public characters, or to principles of divine law or biblical teachings.” Wright v. State, 279 Ala. 543, 550-51, 188 So.2d 272 (1966). See also Barbee v. State, 395 So.2d 1128, 1134-35 (Ala.Cr.App.1981). There was evidence that Williams was a deacon in his church and respected in his community. There was also the State’s evidence that he “sold dope”. Under this evidence, it was permissible for the prosecutor to make allusion to other villains who had wrapped themselves in the cloak of respectability.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge. BOWEN, TYSON, HARRIS and PATTERSON, JJ.,

text:
    Nathaniel DAVIS v. STATE.
    3 Div. 762.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 24, 1984 Alabama Supreme Court 83-1125.

      Frank Riggs, Montgomery, for appellant. Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found Nathaniel Davis guilty of the murder of Charlie Mae Ruggs by shooting her with a pistol. He was sentenced to life imprisonment.

Although no issue is presented on appeal as to the sufficiency of the evidence to sustain the verdict of the jury, we think it helpful and appropriate to quote the first paragraph of the statement of facts contained in appellant’s brief, as follows:

“On April 22, 1982, Charlie Mae Ruggs was driving alone in her automobile along Riverside Drive in the City of Montgomery, Montgomery County, Alabama, when her car was forced to halt by another vehicle. She was shot in the face by an unknown black male assailant who then got back into his vehicle and left. Witnesses testified that they witnessed the shooting of the decedent by this unknown assailant. Even though it was dark and he had only seen him a few times, a witness for the State, Robert Banks Johnson, identified the assailant to the police as Nathaniel Davis, who was his rival for the victim’s romantic attentions.”

We deem it unnecessary to recite further evidence in the case, other than the evidence pertinent to one or more of the three issues presented by appellant, which we now consider in the order of their presentation in appellant’s brief.

I.

Appellant urges error in the admission of testimony of Robert Johnson as to what the victim had told him at or just outside of the residence of the witness a short while after dark on the night of April 22, 1982, the night the victim was killed. Appellant refers particularly to that part of the testimony of Johnson in which he said that the “victim came over to his home to return some of his [Johnson’s] clothing because of threats made by the Defendant to her” and that the victim then said she was “breaking off their relationship [the relationship between the victim and Johnson] because the Defendant had made threats to come and shoot her if she did not.” The core of the evidence to which the objection was made is the following portion of Johnson’s testimony on direct examination:

“Q. Tell us what she said to you as why she was bringing your clothing back to you?
“A. She said to me she was bringing my clothing back because of the threats made by Nathaniel Davis. She wouldn’t want him to come over there and shoot her in her house and hurt her children or me or anybody. So, that’s why she was bringing my clothes and we break the relationship.
“Q. And we do what now?
“A. Break our relationship and keep out of trouble.
“Q. After you finished discussing talking about this, did she leave?
“A. Yes.”

Johnson continued to testify by stating that as he and the victim were going out of his house, the victim said to him “There is his car up there,” and I said, “Oh, that’s not his car. That car has been sitting there all day.” According to Johnson, the two proceeded to walk onto the sidewalk, where the victim got in her car. The witness continued his testimony on direct examination, as follows;

“Q. What happened after she got into her car?
“A. She turned around in the street. Made a U-turn from where she was sitting, and started backing around the corner.
“Q. Did you stand there or did you leave or did you see her car leave? “A. I saw her car leave and I watched it and I was walking — I turned around and started walking back toward the house and I saw this Cadillac come up behind with his lights off, bumped her car. Then I knew that was him.”

The witness continued his testimony on an additional page of the transcript as to what he observed and heard, and then testified:

“A. I got out to the next street, yes. “Q. And what, if anything, did you see when you got out on the next street? “A. I got out there in time to see this — I don’t know how I should say it. Nathaniel Davis walking off of the curb, pulling on the right side of her car which was locked.
“Q. You saw him pull in on the right side of her car?
“A. The right side of her car door which was locked. He went back around the car and come onto the side she was on. Her glass—
“Q. Go ahead on.
“A. The glass was cracked about an inch and as he was walking up to the car he said something like get out of the car; I am going to kill you. And, I continued on crossing the street and was standing on the porch on the other side.
“Q. Let me ask you this: When you were watching this, did you go up on Nathaniel Davis?
“A. Not — because I saw what appeared to be a gun in his hand.
“Q. You saw this where?
“A. No, I didn’t go up on him because I saw what appeared to be a gun in his hand.
“Q. Did you ever see or hear any gun shots out there?
“A. Yes, I did.
“Q. How or when did you see this? “A. When I crossed the street on the other side, he was — I heard the gun shot. In fact, I saw sparks from the gun as he had it sticking down in the cracked glass on her side. She looked up screaming. Milk [nickname for defendant, as shown by other witnesses], please don’t shoot me, and he shot her right in the face, I swear.”

Immediately prior to the testimony of Johnson, as above quoted, and immediately after defendant’s counsel objected to the proffered testimony as to what the victim told Johnson, a hearing was conducted out of the presence of the jury, in which counsel for the State and counsel for defendant presented to the court long arguments pro and con as to the admissibility of the evidence. The trial court agreed, and we agree, with the position taken by counsel for the State that it was admissible as part of the “res gestae” of the victim’s dissolution a mensa et thoro of the relatively recent relation between her and the witness, and the removal of incriminating evidence thereof, out of fear from one who had previously enjoyed a similar relation with her, as explained by the victim while she was in the process of severing relations with the witness. Although what the witness said the victim stated to him was hearsay, the particular testimony did not go beyond an explanation for the conduct of the victim at the time and place the victim verbally explained her conduct to the witness. Our conclusion finds adequate support in Hayes v. State, Ala.Cr.App., 395 So.2d 127, 142-144, writ denied, 395 So.2d 150 (1981), in which Judge Tyson comprehensively covered the subject with citation to and quotations from other authorities which, when fully considered, are also supportive of the conclusion we now reach, that the testimony of the witness as to what the victim said to him a few minutes before she went to her automobile and was almost immediately thereafter killed was admissible in evidence.

II.

In presenting evidence for the State, its counsel pursued an inquiry as to who was driving the automobile that ran into the victim’s automobile a few moments before the victim was shot and killed therein while she and the automobile she was driving were in the immediate vicinity of where the other automobile had collided with the motor vehicle she was driving. In doing so, the State utilized the services of a criminalist in the area of forensic sciences, Thomas Hopen, an employee of the Alabama Department of Forensic Sciences, specializing in the area of trace-evidence. Mr. Hopen testified that he had made a studious and meticulous comparison between paint scrapings that had been identified by other witnesses as paint that had been taken from the Cadillac automobile being driven by defendant just before the victim was killed and paint scrapings that had been taken from the Ford automobile in which the victim was sitting just before and at the time she was killed. According to witnesses who had taken or identified the scrapings, they consisted of original or factory paint from each automobile and some scrapings of paint from one of the automobiles that had apparently . been transferred thereon by means of a collision between such automobile and another automobile. The attorneys and the court and all the witnesses concerned seemed to fully understand and differentiate the numerous pertinent exhibits and their contents, but we are not able to understand them fully, which is largely by reason, we think, of references in the transcript by body language instead of words, numbers or letters. However, this does not prevent an understanding of the issue raised on appeal, which is as to the admissibility of the testimony of Mr. Hopen to the effect, apparently, that some of the original paint taken either from the victim’s automobile or from the defendant’s automobile could have had the same origin as the paint that had been transferred thereon from some other automobile as a result of a collision between two automobiles. Appellant’s specific contention as to this evidence is that, “Qualifying Mr. Hopen as an expert witness concerning paint samples was in error.”

According to the undisputed evidence, Mr. Hopen had received a B.S. degree in chemistry from Southeast Missouri College, and a master’s degree in criminal justice from Auburn University in Montgomery, had spent three years working in a crime laboratory in Missouri, and had been with the Alabama Department of Forensic Sciences since June of 1974. Furthermore, according to his testimony, his experience as a trace-evidence coordinator included the following:

“Q. When was the last such occasion that you had an opportunity to examine and exchange information with experts from foreign countries?
“A. The last time that I did any out-of-state consulting is when I was asked by the State of Georgia to come over as part of a scientific team to review the evidence on the Wayne Williams case and to render an opinion as to that evidence. “Q. And you were one of how many experts that were called in?
“A. I was one of sixteen experts called in from the United States and Canada. “Q. That would be throughout the United States; is that correct?
“A. That’s correct.
“Q. And Canada?
“A. And Canada.”

The fact that Mr. Hopen was a criminalist does not per se qualify him as an expert witness as to the matter as to which he did testify in this case, but all of the evidence pertaining to his qualifications as an expert witness as to the subject of his testimony was more than enough to qualify him to testify as an expert on such subject. The court was correct in overruling defendant’s objection on defendant’s asserted ground to the contrary.

III.

In testifying in his own defense, Nathaniel Davis emphatically denied he killed Charlie Mae Ruggs and insisted that he was not in the vicinity of the place she was killed on the night she was shot to death. He said he last saw “Miss Ruggs” about “4:30” or “quarter to five” P.M. on the date of her death. During the cross-examination of defendant, the State was permitted, over the objection of defendant’s attorney, to show that defendant was convicted in 1958 in Montgomery County Circuit Court of an assault with intent to murder. Appellant does not question the soundness of the proposition that an assault with intent to murder involves moral turpitude and that a conviction therefor of a witness may be .shown on cross-examination of a witness in impeachment of the witness. Roden v. State, 5 Ala.App. 247, 59 So. 751 (1912). He contends, however, that the plea of guilty upon which the judgment of conviction of an assault with intent to murder was interposed was not “voluntarily and intelligently made” and that on authority of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), it was an invalid judgment. The heart of his contention that it was invalid is to be found in the following paragraphs of appellant’s brief:

“In. 1958 the Defendant, a black man, was on trial in Montgomery County during a time in which juries were composed of all whites. It was the practice of a particular judge at that time to grant probation only on a guilty plea. If the ease went to trial and the defendant was found guilty, he would receive an automatic prison sentence. The Defendant in this case was forced to choose between a guilty plea and the certainty of probation or waiting to take his chance with an all white jury. While there may have been no visible, external pressure put upon a black defendant at that time, there was certainly a great deal of mental coercion placed upon him. Based upon these facts, a guilty plea at that time could hardly be construed as voluntary.
“While the Defendant cannot now claim that in 1958 he was deprived of the constitutional rights to his entry of a guilty plea, he can attack that plea by showing that it was not voluntarily and intelligently made. Certainly the surrounding circumstances at the time he made the guilty plea are relevant to show the state of mind of the Defendant and the mental coercion which was placed on him by the sentencing practices of the judge and the racial makeup of the jury. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act is void. A conviction based upon such a plea is open to collateral attacks. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).”

The issue now under consideration was raised also on the trial of the case, at which time a detailed inquiry was made out of the presence and hearing of the jury as to the 1958 conviction of an assault with intent to murder, in which it developed that the same attorney representing defendant on the trial of the instant case and on this appeal represented him in 1958 in the case in which he was adjudged guilty on a plea of guilty, sentenced to imprisonment for two years, and placed on probation. Said attorney made the following statement in support of his contention that the judgment of conviction for assault with intent to murder was void and could not be shown in evidence by the State in impeachment of defendant as a witness in the instant case:

“I am inclined to state for the Record the ground that occurs to me now, and I have to confess to Your Honor that I can’t cite any authority for it, but I feel I should make an attempt to either preserve every error. I would object to it on the ground that, and I think the Court could judicially know that in 1958, when this conviction occurred and the record which I don’t think or anticipate the Record is going to be in evidence, but the record has been presented to the Court and I would like to make it a part of the Record. Certainly, not to go to the Jury. There was a different climate here in the courthouse as Your Honor well knows. People could make agreements for probation in advance. It was more difficult for a black man to defend himself because we had all white juries in those days and I think that I would want to suggest to Your Honor that his plea of guilty should not be admitted because of the circumstances that existed back at that time that would have compelled him to enter a plea of guilty in exchange for a pre-trial arrangement for probation. You know, it was Judge Carter’s [the trial judge in the assault with intent to murder case] practice frequently to let you try a case in advance and tell you what he would do with it, and I certainly don’t criticize him for that. Sometimes, it worked out to our advantage. Sometimes it didn’t. It just depended on the cases, but I would like to state that.
“The Court obviously excluded blacks from juries in those days and that affected the choices that a black man had in deciding how to defend himself or whether to try his case before an all white jury and take a chance on what their verdict might be.”

The issue manifests commendable ingenuity and resourcefulness by appellant’s counsel. However, neither Machibroda v. United States nor any other authority cited by appellant supports the position now taken by appellant to the effect that the judgment finding him guilty of assault with intent to murder and sentencing him to imprisonment for two years and placing him on probation is void for the reasons set forth by appellant’s counsel. Machibroda v. United States was a federal habeas corpus proceeding in which the Supreme Court was dealing with constitutional rights of one who was still serving a sentence and by the particular proceeding was contesting the validity of the judgment of conviction and sentence. The case is inapposite to the instant case.

The instant case is distinguishable from Machibroda, supra, not only procedurally, as we have just noted, but also substantively, which we now consider. In the cited case, it was determined by the Supreme Court that the previous judgments of conviction and sentence in Machibroda, based on the defendant’s pleas of guilty, were subject to challenge by the verified petition filed in a federal district court in which there were detailed assertions of fact, as distinguished from mere opinions, conclusions, or arguments, which, if true, would have clearly shown that his pleas of guilty were not voluntary. The United States attorney countered with affidavits to the contrary. The District Court denied Ma-chibroda’s petition without a hearing. At 368 U.S. at p. 493, 82 S.Ct. at p. 513, 7 L.Ed.2d p. 478, Justice Stewart, with four Justices concurring, stated:

“There can be no doubt that, if the allegations contained in the petitioner’s motion and affidavit are true, he is entitled to have his sentence vacated. A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack....”

In the case cited, is to be found a trail of alleged deceptions practiced against Ma-chibroda that resulted in the interposition of the plea of guilty. In the instant case, there is no such contention, and, even if there were, it would consist merely of argument that counsel for appellant has .made in this Court and in the trial court. The circumstances narrated by counsel in both courts indicate, irrespective of all other portions of the argument, not only that defendant’s plea of guilty was voluntarily, intelligently, and understanding^ interposed, but also that almost certainly such plea was to the best interest of defendant, in whatever forum the case was pending, whether in Montgomery, Alabama, or any other city in the United States of America. Although not necessary to a proper determination of the case under consideration, it is to be noted that, in contrast to the position taken by defendant-appellant through his counsel in the instant case to the effect that he could not have obtained a fair trial before a jury in Montgomery County in 1958, is the following portion of his counsel’s statement in the sentence hearing in the instant case:

“For assault with intent to murder which, I guess, this means May 26th, 1958, was the date he was convicted. I represented Mr. Davis at the time. There were two charges made against Mr. Davis at that time. One murder charge and one assault with intent to murder charge. The fact of the case, and I’ll have Mr. Davis testify to this if the State won’t accept what I have to say, based on my investigation of it. There were two men to pick the argument with Mr. Davis at that time and both of them pulled knives on him. He attempted to retreat, went to his truck which was parked, I guess, maybe a hundred feet away. They followed him. He had a shotgun in his truck. When he got to the truck these men were still following him, so he got the shotgun and shot both of them. The State tried him. One of them died and one of them did not die. The State tried him on the murder charge involving the one who did die. He was acquitted. They were still pending against him, at that time, an assault with intent to murder charge. Judge Eugene Carter presided over all criminal trials in this Circuit and Judge Carter had a rule that he would not grant probation to a defendant who did not enter a plea of guilty. That rule was not tested and not changed for some time after that. Also, at that time, it was possible to make an agreement in advance if the defendant would receive probation and Mr. Davis, through me, was offered an opportunity to plead guilty to the assault with intent to murder charge and was assured he would get probation. In view of Judge Carter’s rule that he would not receive probation if he didn’t enter a plea of guilty, he couldn’t afford to do otherwise. It was on that basis that he did plead guilty. I would further state the grounds that I introduced at the trial of this present case in opposition to the record of his prior conviction, that there was at that time a systematic exclusion from blacks in Montgomery County. The opportunity for Mr. Davis to have a fair trial was much less than it is now. So we offer that, those facts, as a ground for objection to his being treated as an habitual offender. Further, we point out to the Court that the conviction was what, almost twenty-five years ago and certainly that part does not, as a matter of fact, show a habitual offender. So we would object to the Court treating him as an habitual offender in this case.”

We find no satisfactory explanation of the verdict of a jury finding this appellant not guilty of murder of a person he had shot and killed, in an encounter with two men in which he had shot the other man also but failed to kill him, consistent with appellant’s contention now under consideration that defendant could not have obtained a fair trial in Montgomery County, Alabama, in 1958 before a jury on an indictment charging him with an assault with intent to murder the man he had shot but failed to kill. The trial court was not in error in permitting the State to show in impeachment of defendant as a witness that he had been previously convicted of an assault with intent to murder.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

BOWEN, TYSON, HARRIS and PATTERSON, JJ.,

concurring.

TAYLOR, J., recusing himself.


text:
    David DAWKINS v. STATE.
    4 Div. 263.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Aug. 31, 1984 Alabama Supreme Court 83-1119.

      James M. Ivins of Cornett & Ivins, Phe-nix City, for appellant.
    Charles A. Graddick, Atty. Gen. and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   TAYLOR, Judge.

Appellant David Dawkins was sentenced to 25 years’ imprisonment after his conviction for the sale of cocaine in violation of the Alabama Uniform Controlled Substances Act, Ala.Code 1975 § 20-2-70. Prom this conviction, Dawkins asserts four issues on appeal.

I

Appellant first asserts that the trial court abused its discretion in denying his motion for a continuance. It appears from the record that his case was first tried to a mistrial and was retried six days later, resulting in his conviction. Dawkins contends that there should have been a delay until he could secure a transcript of the proceedings of the first trial. Litigants in our system do not have such a right. Experience suggests that a litigant is rarely better prepared to try his case for the second time than six days after he has first tried it. In any event, questions of continuance are wisely left to the discretion of the trial court. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Childers v. State, 389 So.2d 193 (Ala.Crim.App.1980); Ala.Digest, Criminal Law, Key No. 1151.

In matters of continuances, the trial court’s judgment will be overturned only for abuse of discretion. We find no such abuse here.

II

Dawkins next contends that the court erred in admitting into evidence a tape recording made by the person who bought the cocaine from him, as well as in admitting a transcript of that recording. He objected to both on the grounds that portions of the recording were inaudible.

It is necessary to return to basic principles to consider whether an item of evidence is admissible. The relationship between these basic principles of evidence and the substantive law becomes apparent in practical application. Wigmore said that “if [it is assumed] that all evidence tends to establish something, it is true that every ruling sanctioning the exclusion of evidence on the grounds of irrelevance implicitly expresses an interpretation of the applicable substantive law — unless, of course, the evidence is offered for a specific purpose.” 1 Wigmore, Evidence § 2 (Tillers rev. 1983) (emphasis in original).

Before evidence may be considered by the trier of fact, it must satisfy certain minimum requirements of admissibility.

The evidence must be material. Materiality of evidence has been defined as that quality of evidence which tends to influence the factfinder because of its logical connection or pertinency to the disputed issue. General Telephone Co. of Alabama v. Cornish, 291 Ala. 293, 280 So.2d 541 (Ala.1973); Mesereau v. Whitesburg Center, Inc., 47 Ala.App. 146, 251 So.2d 765 (1971).

The evidence must be relevant. Evidence which is relevant has some tendency to make the existence of any fact or inference that is of consequence to the determination of the action more or less probable than it would be without the evidence. Raines v. Williams, 397 So.2d 86 (Ala. 1981); Taylor v. Mason, 390 So.2d 1046 (Ala.1980); Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1972); Loftin’s Rental All, Inc. v. Universal Petroleum Services, Inc., 344 So.2d 781 (Ala.Civ.App.1977); Evans v. Newsome, 56 Ala.App. 651, 324 So.2d 791 (1975); Water Supply Board of the City of Arab v. Williams, 53 Ala.App. 560, 302 So.2d 534 (1974); State Farm Mutual Auto Ins. Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (1973).

What is relevant is a matter ordinarily within the discretion of the trial court. Unless such discretion is abused, it will not be considered error on appeal. Costarides v. Miller, 374 So.2d 1335 (Ala.1979); Ott v. Fox, 326 So.2d 836 (Ala.1978); Donaldson v. Buck, 333 So.2d 786 (Ala.1976); State Farm Mutual Auto Ins. Co. v. Humphries, 293 Ala. 413, 304 So.2d 573 (1974); Alabama Music Co. v. Nelson, 282 Ala. 517, 213 So.2d 250 (1968).

The evidence must not be prohibited by the hearsay rule. The hearsay rule has traditionally precluded admissibility of a statement, other than one made by the declarant when testifying at the trial, offered into evidence to prove the truth of the matter asserted. Lavett v. Lavett, 414 So.2d 907 (Ala.1982). There are, of course, many exceptions to the hearsay rule which are designed to aid the factfinder in reaching the true circumstances at issue. Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir.1961).

Assuming that these preliminary hurdles are overcome, the proponent of any item of evidence must show that it is not unduly prejudicial or patently unfair to the opposing party. The determination of these factors is necessarily left to the sound discretion of the learned trial court.

The proffered evidence is competent, relevant, and material. It does not violate the hearsay rule. An item of auditory evidence is entitled to the same consideration as a piece of visible evidence such as a writing. A writing would not be rendered inadmissible just because some of the words were illegible. The same principles of evidence apply. Neither should this tape be rendered inadmissible merely because it is partially inaudible. The court did not err in admitting the tape and the typed transcript taken from it.

III

Appellant contends the court erred in admitting into evidence testimony regarding a prior sale of cocaine by him. Such evidence is not' proof of guilt of the appellant of the crime presently charged. Miller v. State, 405 So.2d 41 (Ala.Crim.App.1981). A prior offense of the same kind, however, is frequently admissible under one or another of the numerous exceptions to this general rule. In Woods v. State, 437 So.2d 636 (Ala.Crim.App.1983), evidence of another crime was received to show appellant’s “plan, design, scheme, or on-going business system to engage in illegal drug transactions.” 437 So.2d at 637. We think that the other illegal drug sale close in time to this one was admissible. Here, there are additional facts connecting the two: both buyer and location of the sale are the same as in the other case. The evidence was obviously admissible.

IV

Appellant asserts that the trial court abused its discretion by not asking the jury panel if any of them or if any members of their immediate families had ever served on a grand jury. The legal standard to be applied as regards voir dire questioning of the venire is the sound discretion of the court. The court determines how far counsel may go in asking questions of the jury on voir dire. The nature, the variety, and the extent of the questions are left to the trial court. Our Supreme Court found no abuse of discretion where a trial court curtailed inquiry regarding prior service in Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973). We find no such abuse of discretion in the present case.

Based upon the foregoing, the judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.