text:
    Bernice HUDSON and Wilfred Madison, individually v. MOBILE COUNTY.
    Civ. 3731.
    Court of Civil Appeals of Alabama.
    July 27, 1983.
    Rehearing Denied Aug. 31, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1249.

      Ronnie L. Williams and Major Edward Madison, Jr., Mobile, for appellant.
    Maury Friedlander of Marr & Friedlan-der, Mobile, for appellee.
    Robert H. Allen of Allen & Fernandez, Mobile, for amicus curiae Board of Adjustments of the City of Mobile.
   BRADLEY, Judge.

This is a zoning case.

The Mobile County Commission and the City of Mobile made a request for a special exception to Mobile’s zoning ordinance so that a detention center could be built on city property. The county was to lease the property from the city. On February 7, 1983 a hearing on the request was denied by a unanimous vote of the Board of Adjustment of the City of Mobile. The board found that:

“(1) the approval of this application would have an adverse impact on the neighborhood, and
“(2) construction of this type facility would be in direct conflict with the Master Plan of the City of Mobile.”

Pursuant to section 11-52-81, Code 1975, notice of appeal from the board’s decision was filed by the county commission on February 21,1983 in the Mobile County Circuit Court. The next day a demand for trial by jury was filed by the board. Shortly thereafter Bernice Hudson and Wilfred Madison, two property owners in the area of the proposed detention center, intervened and filed a motion to dismiss the appeal. They claimed that the county commission filed an application for a zoning exception without first having an ownership interest in the property and therefore the county commission lacked standing to request a special exception. The motion was denied.

The parties, pursuant to a pretrial order, submitted proposed issues for the court to decide at trial. The court stated in its second pretrial order that the issue to be decided was whether the county commission met the seven requirements set out in the city’s zoning ordinance for the granting of a special exception. The court also stated in the pretrial order “that there is nothing contained in the Master Plan which conflicts with the proposed exception.” No objections to the court’s order were filed.

A trial was held and on March 17, 1983 the jury returned a verdict for the county commission, granting its request for a special exception. Hudson and Madison, the intervenors, appeal and raise three issues.

The dispositive issue on appeal is whether the county commission had standing to seek a special exception from the city’s zoning ordinance. The intervenors once again assert that the county had no legal or equitable interest in the property when it filed an application for a special variance. They argue that without an interest in the property the county had no standing to file its initial request with the zoning board of adjustment.

In Board of Adjustment v. Matranga, Hess & Sullivan, 51 Ala.App. 154, 283 So.2d 607 (Ala.Civ.App.1973), this court held that an applicant for a zoning variance must show proof of legal or equitable ownership in the property to sustain an action before the board of adjustment or in the circuit court. Matranga involved an application for a variance made by the holder of an option to purchase the property. This was not a sufficient interest to bring the action. However, in Arant v. Board of Adjustment, 271 Ala. 600, 126 So.2d 100 (1961), our supreme court held that a person who had a contract to purchase property conditioned on the grant of a variance was entitled to apply for a variance.

The county commission stated on its application for an exception that it “would lease property from the City of Mobile for the purpose of constructing a County Confinement Holding Facility on the premises.” (Emphasis added.) This language indicates that at the time the application was filed, the commission intended to lease the property but it had not entered into a contract for the lease of the city’s property.

The county points out in brief that, prior to the filing of the appeal in circuit court, the county entered into a lease agreement with the city. Moreover, the city was a party to the original application. The county argues that a party at interest was involved during all phases of the zoning exception procedure.

From the record we find that the county had no legal or equitable ownership interest in the property at the time the initial application was filed. Thus we conclude that the county had no standing to file an application with the zoning board of adjustment. Since the county was not properly before the board, it was not an “aggrieved party” for purposes of appealing the board’s decision to the circuit court. Furthermore, the city was not a party in the appeal to the circuit court.

The judgment of the trial court is reversed and the cause remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: BRADLEY, Judge. HOLMES, Judge

license: Public Domain

text:
    Richard L. CARR v. ADVENTURE MOTORS, INC., a Corporation; Universal Underwriters Insurance Company.
    Civ. 3613.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Rehearing Denied Aug. 31, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1226.
    Edward F. Morgan, Tuscaloosa, for appellant.
    McCoy Davidson of Roberts, Davidson, Wiggins & Davis, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

On December 7, 1977 Richard Leon Carr sustained a back injury which resulted from a fall in the course of his employment as a mechanic at Adventure Motors, Inc., an employer subject to the Alabama Workmen’s Compensation Act. Carr was admitted to the hospital on January 5, 1978 and was treated with neck traction for cervical and lower back pain. When he experienced difficulty with the traction because of pain, Carr was referred to another physician, and an anterior cervical fusion was later performed. The doctor who performed the surgery advised Carr in December of 1979 that he could return to work. On March 7, 1980 the workmen’s compensation benefits Carr had been receiving since the date of his accident were terminated.

Because his pain persisted, Carr consulted with Dr. Lawrence Lemak, a Birmingham orthopedic surgeon, who examined him and found that the fusion was not solid. Carr was hospitalized in Birmingham from October 29, 1980 through November 5, 1980, during which time a refusion was performed by Dr. Lemak. After the surgery subsequent procedures were performed for pain, and Carr continued to consult with Dr. Lemak through the time of the June 29, 1982 hearing on his complaint which forms the basis of this appeal. On September 30, 1982 Carr was awarded a sixty percent permanent partial disability by the Tuscaloosa Circuit Court.

In his brief Carr argues that the trial court abused its discretion by denying his motion to reopen his case and admit additional testimony. As contended, such evidence would have related to the continuation of temporary total disability benefits on the theory that maximum recovery had not been achieved and the ease was not ripe for the award of permanent partial disability benefits. This motion was filed after the conclusion of the hearing and during a time in which the trial court was awaiting briefs from the attorneys.

The nature of the evidence sought to be presented by Carr concerned the results of a CAT Scan test which had been performed by Dr. Lemak in Birmingham on June 25, 1982. Carr points out that the hearing began on June 29,1982 and that the results of this test were unknown to him at the time. He also argues that the test results were relevant to show the length and duration of his disability.

Carr takes the position that the trial court has discretion in reopening a case and hearing additional testimony before the argument has been concluded and the case submitted for decision. See Mooneyham v. Herring, 204 Ala. 332, 85 So. 390 (1920). In the instant action Carr says the argument was not closed and the case had not been submitted because the trial court was awaiting briefs from the attorneys. He further points to statements made by the trial court which indicate that it believed that it lacked the discretion to reopen the case while it was awaiting briefs.

In support of his argument that the trial court abused its discretion by denying his motion to reopen the case and hear evidence of the CAT Scan test results, Carr cites section 6-8-103, Code 1975. This section provides:

“The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe.”

We find the cited code section applicable to the case at bar and also find that it conferred on the trial court the discretionary authority to reopen the case and hear additional evidence because the argument had not been concluded. The court had called for and was awaiting briefs of counsel. Comments made by the court during the proceedings on the motion to vacate the judgment or grant a new trial strongly suggest that the trial court considered that, the case being under advisement, it was precluded as a matter of law from reopening it and taking additional testimony.

Under the supreme court’s decision in Ex parte Alabama Marble Co., 216 Ala. 272, 113 So. 240 (1927), after the argument has been completed and the case has been submitted, the trial court loses its discretionary power under section 6-8-103, Code 1975, to reopen the case and hear additional evidence. There, the court said:

“When, without fraud, a cause has been submitted on the evidence for the final judgment of the court, the trial being completed, it is the duty of the court to proceed to render an appropriate judgment according to the merits of the case. Indian Head Mills v. Ashworth (Ala.Sup.) [215 Ala. 348] 110 So. 565.
“This we think is a mandatory duty, which cannot be qualified by any theory of judicial discretion. To say that the trial court may at its discretion set aside a submission, repudiate a trial already completed, and reopen the case for another trial, would be to reduce judicial procedure to utter futility, and in practical effect deny to the unfavored litigant the right to have a trial of his case.”

However, the decision in Ex parte Alabama Marble Co., supra, does not apply in the instant action because the argument had not been closed. The trial court was waiting for the attorneys to submit briefs which would be weighed as a part of its final decision. Thus, the case remained open and the trial court should have exercised its discretionary authority under section 6-8-103, Code 1975, as to whether it would hear the results of the test.

For the foregoing reasons the decision of the trial court not to reopen Carr’s case is reversed. However, our decision is not to be construed as suggesting to the trial court in what manner its discretion should be exercised. That is, we do not presume to suggest whether the CAT Scan test results should be admitted.

REVERSED AND REMANDED.

WRIGHT, P.J., concurs in the result.

HOLMES, J., concurs specially.

HOLMES, Judge

(concurring specially).

The record surrounding the dispositive issue in the instant appeal is not a paragon of clarity. The majority opinion is, to me, bottomed on the premise that the trial court did not reopen the case because it believed that as a matter of law it could not do so. Quite frankly, I am not convinced that the state of the record is such that we can properly determine exactly why the trial court took the action that it did. However, neither party alludes to my concern. In fact, able counsel for both parties in effect “join issue.” Therefore, in view of the issues as framed in brief, I can concur in the remand of this appeal.

The trial court had, in this instance, the discretionary authority to reopen the case, etc. The learned and distinguished trial judge apparently did not exercise that discretion, but was under the mistaken belief that he was precluded as a matter of law from “reopening” the case.

I therefore concur that the case should be remanded for the trial court to properly exercise its discretion.


author: HARRIS, Judge.

text:
    Larry Wayne JONES v. STATE.
    4 Div. 106.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-991.

      C. Lawson Little, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Judge.

Appellant was indicted by the August 1982 term of the Houston County Grand Jury for burglary in the second degree in violation of § 13A-7-6(b), Code of Alabama 1975. He was charged with unlawfully entering the dwelling of Bulah Pynes with the intent to commit rape. Trial was had on October 26, 1982, with the jury finding appellant guilty as charged in the indictment. A sentencing hearing was held on November 16, 1982, at which appellant was sentenced to fifteen years’ imprisonment. From that conviction he now appeals in forma pauperis.

During the late evening hours of Wednesday, June 16, 1982,'the victim was aroused from her sleep when appellant appeared at the doorway to her bedroom. Appellant had entered through a front room window and had used a flashlight to see inside the darkened home. Once he had reached the victim’s bedroom, appellant turned on the bedroom light. Appellant instructed the victim to “lie still” as he climbed on her bed and exposed himself. After a period of time, appellant got off the bed and began to leave the victim’s home. As he was leaving, appellant threatened to kill the victim if she did not stop a pending criminal proceeding filed by her against him. Appellant also threatened to do the same to the victim’s two brothers if the proceeding was not dismissed. After appellant had left the home, the victim made no attempt to contact anyone. Appellant remained in the victim’s home between thirty minutes to one hour. The victim testified that she had not given appellant permission to enter her home. The victim stated that she had known appellant all his life and, although he was stronger than she, she was not afraid of him.

The next morning, one of the victim’s brothers came to her home and found the telephone lines leading into the house had been cut. A window was broken in the front room and its casing damaged. A bathroom window had also been partially broken and its casing recently damaged.

The victim testified that appellant had twice previously broken into her home. The first incident occurred in September, 1981. At that time appellant entered the house by breaking a window. He confronted the victim in her kitchen. Appellant left when the victim telephoned for aid. The second incident occurred in February, 1982. Appellant cut the outside telephone lines and entered the house by breaking in a door. The victim was in bed and appellant got in bed with her and “fooled” with her arm. The victim stated that appellant attempted to rape her, but due to his drunkeness, was unsuccessful.

Noah Guy, the victim’s brother, testified that the victim was sixty-five years old and had been on medication for emotional and nerve problems for several years. Guy had been appointed the victim’s guardian for a period of time ending in March, 1982, when the victim was certified to be sane and competent to manage her own affairs.

On June 17, Guy attempted to telephone the victim but to no avail. Afterwards, he went to his sister’s home and asked her about her telephone. Guy found the outside telephone lines cut. The victim informed Guy of the incident the night before involving appellant. Guy then found the damaged front room and bathroom windows. He attempted to start the victim’s car, but found that the coil wire had been removed.

Myras Granberry testified that around 5:00 or 5:30 p.m. on June 17, Guy asked him for assistance in cranking the victim’s car. Granberry opened the hood of the car and found the coil wire missing.

Houston County Sheriff’s Investigator Mike Gilley testified that he arrived at the victim’s home around 2:00 p.m. on June 17 and investigated the instant incident. He examined the cut telephone lines and the damaged windows. He also found the latch to the door separating the hall and front room area from the bedroom of the victim’s home broken. Gilley stated that the latch was on the bedroom side of the door and the door had been forced or pushed in from the hall and front room side. Gilley dusted the home for latent fingerprints, but did not find any that were legible and usable. Gilley’s testimony concluded the presentation of the State’s case in chief.

Appellant contends that the trial court erred in admitting the victim’s testimony concerning his prior breakins of her home. We disagree.

The prior incidents were not remote in point of time, and were accomplished by similar means. In addition to the above, appellant was facing other criminal charges arising out of the prior incidents with the victim. Admission of the above testimony was clearly relevant to establish appellant’s intent. If an accused is charged with a crime that requires a prerequisite intent, as in the case sub judice, then prior or subsequent criminal acts are admissible to establish that he had the necessary intent when he committed the instant crime. Hayes v. State, 384 So.2d 623 (Ala.Cr.App.1979), cert. denied, 384 So.2d 627 (Ala.1980); See also McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1947); Howton v. State, 391 So.2d 147 (Ala.Cr.App.1980); Gamble, McElroy’s Alabama Evidence § 70.01(5) (3d ed. 1977).

In addition, appellant placed in issue the identity of the assailant through his cross-examination of the victim and her brother as well as through the testimony of his witnesses. Appellant attempted to establish that the victim was mentally incompetent at the time of the commission of the instant offense and, thus, did not know who assaulted her. Further, the evidence elicited from appellant’s witnesses during presentation of his case in chief attempted to establish the alibi that appellant was at home at the time of the break-in. However, the victim positively identified appellant as her assailant and her brother testified that she had been recently certified (apparently by the probate court) as being sane and competent. He further stated that at the time of the instant offense he was not serving as the victim’s guardian. Thus, under the identity exception, the above challenged testimony of the victim was admissible. Hayes, supra; McElroy’s, supra.

Lastly, appellant asserts that the State failed to establish a prima facie case of second degree burglary in that it did not prove the requisite intent to commit rape.

The element of intent is rarely, if ever, susceptible of direct or positive proof, since it is a state or condition of the mind. It must usually be inferred from the facts testified to by witnesses and circumstances as developed by the evidence. See Cook v. State, 409 So.2d 965 (Ala.Cr.App.1981). In order to establish the requisite intent, the intended act need not be completed or carried out. Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. denied, 294 Ala. 745, 321 So.2d 237 (1975).

In the instant case, appellant entered the victim’s home without her permission and gained access to her bedroom by breaking in a latched door. Upon entering, he ordered the victim to remain in her bed while he climbed onto it and exposed his genitalia. After remaining in the house for a period of time lasting from thirty minutes to one hour, appellant threatened to kill the victim and her brothers.

Upon a complete review of the State’s evidence, we find it sufficient to have established the requisite intent to commit rape. Thus, the trial court properly overruled appellant’s motion for judgment of acquittal and submitted the case to the jury for its consideration.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Sarah Frances M. WEATHERS v. STATE of Alabama.
    4 Div. 131.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-989.

      H.D. Binford and George E. Trawick, Ar-iton, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Sarah Frances M. Weathers was indicted for the murder of her mother-in-law, Maggie Weathers, “by shooting her with a pistol”, in violation of § 13A-6-2, Code of Alabama 1975. The jury found her “guilty of murder” and the trial judge sentenced her to life imprisonment in the penitentiary.

On March 4, 1982, at approximately 4:00 p.m., Sidney Chapman, owner of Chapman Funeral Home, was called to the residence of Mrs. Maggie Weathers.

Upon his arrival at Mrs. Weathers’ home, Chapman went into the bathroom and discovered the body of Mrs. Weathers. He examined the deceased’s body and discovered that her skull had been crushed.

At this time, he did not detect a bullet wound on the body, and he had no idea the deceased had been shot. He talked to the deceased’s son, Carl Weathers, Jr., about the possibility of calling the Sheriff because of the unusual amount of blood found on the body and the surrounding areas.

Gertie Reynolds, a neighbor of the deceased, received a call concerning the death. She picked up some other neighbors, the Eddings, and they went to the deceased’s house. Junior Weathers, the appellant and their son, Nathan, were there when they arrived.

After Mrs. Reynolds viewed the body, she went home, changed clothes and dialed 911 to get the Sheriff.

Mrs. Reynolds stated she visited at the deceased’s home on occasions and knew a pistol was kept in the home but she did not see it on that day.

She testified she was not aware of prowlers in their neighborhood, but admitted she had heard of prowlers in their neighborhood. Their neighborhood was located in the country close to the backwater, an area which fishermen frequent.

Reverend and Mrs. Gordon Eddings testified that the appellant called them about Mrs. Weathers’ death and they came to her residence shortly thereafter.

A.G. Tew, an investigator with the Alabama Bureau of Investigation, was called to the deceased’s residence on March 4, 1982, by Barbour County Sheriff, Robert Smith. Smith told him there was a possibility of foul play.

When he arrived, he saw the appellant and Junior Weathers and admitted they both seemed grief stricken. Tew examined the back of the deceased’s head and it felt like the bones in her skull had been crushed or separated because they were loose. He did not notice a bullet wound on the deceased at this time.

The house was secured and a search for evidence was conducted. Tew did not see any sign of forced entry and indicated some of the windows had unbroken cobwebs attached to them. The house had not been ransacked and nothing was found missing. In fact, the deceased’s purse was found on the daybed and it contained $174.98 cash.

To Tew’s knowledge, the appellant was the last person to see the deceased alive. The appellant stated her mother-in-law was on the daybed in the den when she left to pick up Junior Weathers from work at American Builders Company. The deceased did not go with her into town because she was not feeling well.

When the appellant arrived at American Builders Company, she went to the guard shack to call and check on her mother-in-law. The deceased told the appellant she was feeling dizzy and thought she had heard some prowlers around the house. The appellant assured her mother-in-law they would come directly home.

The appellant, her husband, Junior Weathers, and their son, Nathan, returned home in less than one hour after going to the bank to cash a check, paying the power bill and picking up some feed at the Rainbow Farm Center.

At this point, the appellant told Tew she did not wish to answer any more questions because it “might make her look conspicuous.” (R. 94).

Neither the appellant, nor Junior Weathers said anything to the police about a gun, until the investigators found their .38 revolver in a chest of drawers after they were notified that the deceased had been shot. Junior Weathers first told Tew that when he found his mother in the bathroom, he looked for the gun and found it in the chest of drawers, where they kept it in his and the appellant’s bedroom. Later he said that after the appellant pointed to the gun on the daybed, he put it away in the chest of drawers. He told Tew that it was customary to leave the gun out for his mother as protection at times.

The appellant told Tew she had begun leaving the gun out for the deceased on the day before she was killed. On that day, she had cleaned the gun, loaded it and placed it on the daybed for the deceased. She had left the gun concealed on the daybed for the deceased the day she died.

Tew delivered to the Department of Forensic Sciences the .38 revolver and some ammunition which were found in the chest of drawers and a projectile which was removed from the wall in the bathroom closet. Tew admitted that no check for fingerprints was done anywhere in the house and that the appellant’s hands were never swabbed for any gunpowder residue.

Dr. Thomas Gilchrist, a pathologist employed by the Department of Forensic Sciences, conducted the autopsy on the body of Maggie Weathers. He found two gunshot wounds. One entered the tip of her nose and the other was a flesh wound on the left side of the body.

He determined the cause of death to be a gunshot wound to the head. He removed the bullet from the deceased’s head and gave it to Lonnie Harden, the toolmark and firearms coordinator for the Department of Forensic Sciences.

Dr. Gilchrist indicated he did not find any evidence that the pistol had been fired at close range to the deceased.

Charles Brooks, the lab administrator of the Enterprise Lab of the Department of Forensic Sciences assisted in the investigation and stated that no fingerprint checks were made anywhere in the house.

Joe Saloom, also with the Enterprise Lab, testified that there were no usable fingerprints on the gun because it had been recently cleaned.

Lonnie Harden did not testify but a stipulation was entered that he compared the .38 revolver and the two projectiles he received and concluded the two bullets were fired from this .38 caliber pistol.

A stipulation was also made that Thomas Hopen, a criminalist with the Department of Forensic Sciences, found the presence of gunpowder residue under a fingernail of the deceased’s right hand and on the left palm area. This would be consistent with a person having recently fired a gun, handled a recently fired gun, or come in close contact with a recently fired gun.

B.J. Gatlin, an investigator with the District Attorney’s office, stated that after an x-ray of the deceased’s body revealed the presence of a bullet in her head, a search for a weapon was conducted. They located a pistol, contained in a holster, in a chest of drawers in the bedroom shared by Junior Weathers, the appellant and their young son. No attempt was made to lift fingerprints from this pistol.

Morell Powers maintains the guard shack at American Builders Company during his shift. On March 4, 1982, the appellant came into the guard shack with her son. She appeared nervous and asked to use the phone so she could check on her mother-in-law who wasn’t feeling well.

The appellant made several unsuccessful attempts to dial the number, so he dialed the number for her. When Powers heard the phone ring, he handed the phone to the appellant. Powers heard the appellant ask how “Nanny” was feeling and then a comment about a prowler around the house. The appellant then stated they would go straight home.

Powers said he did not hear anyone else on the line, but admitted his ability to hear would depend on how loud the person on the other line spoke.

Betty Richards, an employee of the city of Eufaula Housing Authority, testified that in October or November of 1981, the appellant called her and inquired about possible housing opportunities. Mrs. Richards referred her to Mary Lou Blinov.

Mary Lou Blinov stated that the appellant called her in October or November of .1981 and talked to her about the possibility of renting one of the four apartments which Mrs. Blinov owns.

The appellant told Mrs. Blinov she was living with her husband, their child and mother-in-law, and she wanted to move out. She stated she and her mother-in-law had differences and her husband would always take his mother’s side. Her mother-in-law and her husband both dipped snuff and she wanted to get her child out of that filth and hopefully her husband would join her.

The appellant said she did not have the money for the deposit but she would try and get it. Later, she called back and said she was unable to make the deposit.

James John Ragan, a life insurance salesman, testified he drove by the deceased’s house while he was on his debit route on March 4, 1982, at 1:30 p.m. The appellant and her child were across the road from the house and he stopped and talked to the appellant about purchasing some chicken wire. He was told he needed to speak with her husband who would be home around 4:00 p.m.

Ragan stated that the appellant was not nervous but wasn’t completely calm either.

Sarah Arnold, the deceased’s daughter, stated she had never seen a gun around the house and did not know a gun was left out for her mother. Her mother was scared of guns.

Mrs. Arnold had not heard of any prowlers around the neighborhood but she knew her mother always kept the doors locked. She was not aware of any differences or hard feelings between her mother and the appellant.

After the State rested, defense counsel made a motion to exclude and a motion for acquittal. Both of these motions were denied by the trial judge.

The first witness for the defense was Carl Weathers, Jr., the appellant’s husband of six years. On the day of the murder, the appellant drove him to work about 6:15 a.m. so he could be at work at 7:00 a.m. Before he left, his mother told him she was not feeling well but she would come with the appellant to pick him up from work if she felt better.

When he got off work at 3:00 p.m., the appellant and their son were there to pick him up. The appellant did not seem nervous or upset. She told him that his mother was not feeling well, and that she had called to check on her and his mother had told her about the prowlers. Weathers assured his wife that there weren’t any prowlers in the daytime and that his mother had probably been frightened by a brick falling from the chimney which was in need of repair.

The Weathers then ran their errands to the bank, to the power company and to the feed store. When they arrived home, Weathers went in the house. The door was unlocked. Weathers called for his mother but heard no answer. He went outside to see if she had gone out in the yard but couldn’t find her there either. When Weathers went back in the house, he found his mother slumped in the pantry in the bathroom with her head in a refrigerator pan filled with jars. His mother was limber so he laid her on her back on the floor. Weathers thought his mother had fallen after a dizzy spell, cut her head and died.

He told the appellant his mother was “gone” and to call the neighbors. Before the neighbors arrived, the appellant pointed to the gun on the daybed. He picked it up and put it in the chest of drawers. Weathers owned this pistol for several years and had taught his mother how to shoot it on one occasion. It was customary for the pistol to be left out with his mother when they would be gone. He stated he had no idea how his mother had been murdered until the police told him she had been shot late that evening.

Weathers said he and the appellant were not having any marital problems and he did not believe his wife killed his mother.

Gloria Ann Beavers stated she often took the Weathers’ son to school but she could not remember if she had on March 4, 1982. She saw the appellant and Nathan outside across the road from the house that afternoon around 1:35 p.m.

Mrs. Beavers lived in the same neighborhood as the Weathers. One night in January or February of 1982, she called Weathers. to come to her house because she thought she heard a prowler around her house.

Norman McCraney, Doug McCraney and John McCraney, Sr., relatives of the appellant, testified the windows of the Weathers’ home were easy to open from the outside.

The appellant testified that her mother had died in a tornado in April of 1981 and she began thinking about moving out because she was somewhat depressed and wanted to be by herself, but that had soon passed. She said that her mother-in-law had not interfered in her marriage and the dipping snuff did not irritate her so much that she wanted to move out of the Weathers’ home.

On March 4, 1982, she took her husband to work at 6:15 a.m. When she came home, she got her son ready for school and Gloria Beavers picked him up around 7:30 a.m. When she left to pick her son up from school at 11:15 a.m., she put the gun on the daybed for her mother-in-law. When she and her son returned home, her son took a nap while she watched soap operas with her mother-in-law. After her son woke up, the appellant took him outside to play across the street from the house.

While they were outside the insurance man came by and she told him to come back around 3:30 or 4:00 p.m. The two stayed outside until 2:10 p.m. when the mail came.

When they went back to the house, the appellant asked the deceased if she wanted to go to town with them to pick up Junior Weathers. The deceased said she didn’t think she would because she still wasn’t feeling well. The appellant left her at home on the daybed and the pistol was beside her concealed under a blanket.

When she arrived at her husband’s place of employment, American Builders Company, she took her son into the guard shack to get a drink of water and decided to call and check on her mother-in-law. She tried several times to get through to the number but she could not, so she had the guard try the number. He got through and gave her the phone. When she spoke to her mother-in-law, she told the appellant something about prowlers around the house. The appellant told her they were on their way home.

When the appellant saw her husband, she related to him the conversation she had with his mother. He was not worried about the prowlers, so they ran their errands and got home before 4:00 p.m.

After discovering his mother’s body in the bathroom, Junior Weathers told the appellant that his mother was “gone” and to call the neighbors. The appellant noticed the pistol lying on the daybed and told her husband, Junior Weathers, to put it away.

The appellant denied that she had had an argument with her mother-in-law on the day on which she was killed, and said there was no ill will between them. She testified that she did not kill her mother-in-law.

The defense put on several people who testified as to the good reputation of the appellant in the community where she lived.

I

The appellant contends the State failed to present sufficient evidence to establish a prima facie case or evidence which would support the jury’s verdict of guilt, and therefore, her conviction is due to be reversed.

The evidence presented by the State clearly shows that Maggie Weathers was murdered by someone. The issue before us is whether or not the State proved beyond a reasonable doubt that the appellant was the person who committed this act of murder.

The standard form of review which this court must apply is whether there was sufficient legal evidence from which the jury, by fair inference, could conclude that the appellant was guilty of this murder beyond a reasonable doubt. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978).

In Thomas v. State, supra, Judge Bowen stated;

“While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. Smith v. State, 345 So.2d 325 (Ala.Cr.App.), cert. quashed, 345 So.2d 329 (Ala.1976); Colley v. State, 41 Ala.App. [273] 275, 128 So.2d 525 (1961). A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. Harnage v. State, 49 Ala.App. 563, 274 So.2d 333 (1972). While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, Royals v. State, 36 Ala.App. 11, 56 So.2d 363, cert. denied, 256 Ala. 390, 56 So.2d 368 (1952), mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence. Sauls v. State, 29 Ala.App. 587, 199 So. 254 (1941); Riley v. State, 28 Ala.App. 389, 187 So. 247 (1939); Rungan v. State, 25 Ala.App. 287, 145 So. 171 (1932); Guin v. State, 19 Ala.App. 67, 94 So. 788 (1922).
“An inference is merely a permissible deduction from the proven facts which the jury may accept or reject or give such probative value to as it wishes. Roberts v. State, 346 So.2d 473 (Ala.Cr.App.), cert. denied 346 So.2d 478 (Ala.1978); Hale v. State, 45 Ala.App. 97, 225 So.2d 787, cert. denied 284 Ala. 730, 225 So.2d 790 (1969); Orr v. State, 32 Ala.App. 77, 21 So.2d 574 (1945); It is a logical and reasonable deduction from the evidence and is not supposition or conjecture. Guesswork is not a substitute. Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640 (1940); Bolt v. Davis, 70 N.M. 449, 374 P.2d 648 (1962). A supposition is a conjecture based on the possibility or probability that a thing could have or may have occurred without proof that it did occur. Louisville & N.R. Co. v. Mann’s Adm'r, 227 Ky. 399, 13 S.W.2d 257 (1929). The possibility that a thing may occur is not alone evidence, even circumstantially, that the thing did occur. Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967); Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414 (1910).”

The mere fact that a person charged with a crime had the opportunity to commit that crime, standing alone, will not sustain a conviction. Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85 (1973).

The possibility that this appellant may have killed the deceased is not enough to prove that she did so.

Circumstantial evidence is sufficient to support a conviction only if the evidence is consistent with the hypothesis that the accused is guilty and inconsistent with any reasonable hypothesis that he or she is innocent. Thomas v. State, supra; Johnston v. State, 387 So.2d 891 (Ala.Cr.App.1980).

“The test we are to apply is not whether we think that appellant is guilty. A verdict finding a defendant guilty in a criminal case is wrong and unjust, even though defendant is guilty, if the evidence of his guilt is not strong enough to meet the legal test required as stated above. Such a verdict, when properly challenged, cannot stand, even though there is strong reason to believe that if all of the true facts were known and shown in evidence guilt would be conclusively established.”

Graham v. State, 374 So.2d 929 (Ala.Cr.App.1979); Johnston v. State, supra.

The investigators in this case admitted that no fingerprint check was made of the inside of the house, or of the murder weapon itself and that there was no attempt to swab the appellant’s hands for gunpowder residue. No evidence was presented that the deceased and the appellant had an argument on the day of the murder or that any ill will existed between the two of them.

The only evidence of the appellant’s guilt presented by the State was that the appellant was the last person to see the deceased alive, that the deceased was killed with the family gun and the appellant gave inconsistent statements about this gun, and that the appellant had . wanted to move out of the deceased’s house some five or six months prior to the murder because the deceased dipped snuff.

The evidence presented at trial created no more than mere suspicion or conjecture that this appellant killed the deceased. The same proof could have been shown that someone other than the appellant murdered the deceased.

“. .. [I]f the facts and circumstances can be reconciled with the theory that some agency other than the accused may have caused the death, then the accused is not shown to be guilty by that full measure of proof which the court requires.” (Citations omitted).

Bluth v. State, 38 Ala.App. 692, 92 So.2d 685 (1957).

In viewing this evidence contained in the record most favorable to the State, we do not believe the evidence was. inconsistent with a reasonable theory that the appellant was innocent. We hold, therefore, that the trial court erred in overruling the appellant’s motion to exclude and for an acquittal and also her motion for a new trial. Therefore, the judgment of the trial court must be and is hereby reversed and rendered.

REVERSED AND RENDERED.

All the Judges concur.


text:
    Brenda Diane STORY, alias v. STATE.
    5 Div. 613.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied. Nov. 4, 1983 Alabama Supreme Court 82-1002.

      William T. Denson, Goodwater, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Appellant was convicted by a Tallapoosa County Circuit Court of possessing marijuana for trafficking. Appellant was sentenced- to five years’ imprisonment and fined $25,000.

The state’s first witness was J.W. Tapley of the Dadeville Police Department. In the early morning hours of August 2, 1980, Officer Tapley noticed a Cadillac automobile weaving on the road. The officer stopped the automobile and arrested the driver, Michael Dean Wall, for driving on the wrong side of the road. Appellant was riding on the passenger’s side of the car when it was stopped.

Officer Tapley drove Wall to the county courthouse to perform an alcohol detection test. Officer Leonard Brand, Officer Tap-ley’s partner, drove the Cadillac and appellant. As Officer Brand got into the automobile, he noticed a pistol on the driver’s side and a shotgun on the back seat. While the P.E.I. test was being administered, Officer Brand returned to the automobile to remove the weapons. As he removed them, he noticed a cosmetics case in plain view on the floor of the passenger’s side. While he was removing the case from the passenger’s side, a large pocket of money fell out of the car, as well as a bag of green vegetable material. The case also contained white pills and drug paraphernalia.

Officer Brand took the case into the courthouse and asked who owned it. Both Wall and appellant denied ownership. He then obtained a search warrant, and, along with Deputy Sheriff David Berry, searched the automobile. The officers found a blue flight bag in the automobile trunk containing around three pounds of marijuana.

On cross-examination, it was determined that Mike Wall was driving the Cadillac when it was stopped, and he also owned the automobile.

Mr. Taylor Noggle, a state toxicologist, identified the flight bag and testified that he examined green vegetable material found in the bag. He determined the material to be marijuana.

The state called a series of witnesses who had seen appellant at a Marty’s Marina during a party the night before appellant’s early morning arrest.

Mr. Steve Morris was at Marty’s Marina when appellant drove up in a beige Oldsmobile Cutlass. He testified that appellant asked him if he wanted to buy a bag of marijuana.

Mr. Randall Baker testified that he had ridden around with appellant and her cousin, Mike Branch, before going to Marty’s Marina. While stopped to drink some beer and smoke marijuana, Mr. Baker walked around the back of appellant’s automobile. While the trunk was open, Mr. Baker saw in the trunk a trash bag of marijuana and a “blue tote case.”

Mr. Bobby Price testified that appellant drove up in a tannish Oldsmobile Cutlass and asked him if he wanted to buy a bag of marijuana. He saw her open her trunk and noticed a blue bag with marijuana in it. He stated that the bag appeared to be the same as the blue flight bag found in Wall’s trunk, but he was not positive it was the same bag.

Mr. Ronnie Thomas testified that he also saw appellant at Marty’s Marina on the night in question. Mike Branch and Randall Baker were with her. According to Mr. Thomas, appellant opened the trunk of her beige Oldsmobile Cutlass. In the trunk was a big unzipped bag which contained bags of marijuana. He saw someone walk up to the trunk and accept a bag of marijuana from appellant.

Appellant then walked up to a small group of people, pulled a bag of marijuana out of the cosmetics bag found in Wall’s car, and asked if they would like to smoke a joint. After they all smoked a joint, appellant and Mike Branch left.

All of these witnesses stated on cross-examination that they knew Mike Wall or were at least acquaintances of his.

Michael Wall took the stand but invoked his Fifth Amendment right against self-incrimination.

After the state rested, appellant took the stand. She stated that she left her home in Georgia on the afternoon of August 1, to visit relatives in Alabama. Late that afternoon, she arrived at her aunt’s house in Perryville where she was to spend the night. She had a blue canvas bag and a red overnight bag which she took into her aunt’s house on arrival. She admitted going to Marty's Marina but denied attempting to sell marijuana. She also denied having marijuana in her car and she denied ever owning or seeing the cosmetics case or the blue flight bag found in Wall’s car.

She stated that she met Wall at a local bar after she had left Marty’s Marina. They had a few drinks and then left to find something to eat. She rode with Wall and her cousin drove her car. While looking for something to eat Wall was stopped by the police.

Margaret Branch, appellant’s aunt, testified that appellant arrived at her house the afternoon of August 1. Mrs. Branch saw appellant unload the trunk and she did not see an overnight flight bag or a cosmetics case.

Mike Branch stated he rode with appellant the night of August 1. Before they went to Marty’s Marina, they had stopped to get some beer out of the trunk and had inadvertently locked the keys in the trunk. Mr. Branch had to break the lock open to get into the trunk, and he testified that the only way to get into the trunk was to use a screwdriver.

He also stated he never saw a blue flight bag or a cosmetics case, and he never saw appellant attempt to sell marijuana that night.

On rebuttal, Mike Wall agreed to testify on a question-by-question basis. He testified that he met appellant at a local bar late at night on August 1. According to Wall, appellant attempted to strike a marijuana deal. After he rode with her a short distance from the bar, she opened up her trunk and offered to sell him marijuana. When asked if he saw the blue flight bag, he stated it was dark but he did not see a bag.

Late in the night appellant agreed to spend the night with Wall. They were first going to get something to eat, and Mike Branch was going to meet them at a local restaurant. Before she got into his car, appellant took a bag from her trunk and put it into his trunk. He denied ownership of the blue flight bag taken from his trunk.

The defense counsel recalled appellant, who denied putting anything into Wall’s trunk.

Appellant raised a number of issues in her motion for new trial which constitutes the bulk of her arguments on appeal.

The most troubling issue raised in the motion concerns new evidence. During the motion for a new trial, appellant called Officer Mike Parrish to the stand. Officer Parrish was an undercover agent for the Alexander City Police Department. He had previously worked as a police officer investigating drug deals in Kansas.

Officer Parrish testified that he was present as a third party in an undercover role while Mike Wall bought cocaine from a David Story in the parking lot of the same local bar where he and appellant had met. Story was not related to the appellant, According to Parrish, Wall told him that the marijuana was his and he had his friends come and testify that the marijuana was appellant’s and had been in her ear.

From the record:

“Q. Now, did you talk with Michael Wall about his having been arrested with Diane Story?
“A. Yes, sir, I did.
“Q. And do you remember when this conversation took place the first time?
“A. Yes, sir, it was in a car out in front of the Exit Inn. We were at a bar sitting out in the parking lot with a subject named David Story. And they were discussing at that time Mr. Wall was purchasing some cocaine from Mr. Story. And Wall was saying something about he had to be careful because he had been arrested in Dadeville before after leaving the Exit Inn.
“Q. And if I might ask you this, now, when you were working, were you working at this time for the Alexander City Police Department?
“A. Yes, sir.
“Q. And what was the nature of your work at that time?
“A. Undercover in Narcotics.
“Q. Now, for the record, when you were working undercover and in narcotics, of course, you were not in uniform? And it was not known? It was not known to Wall, made known to Wall, that you were, of course, with the Police Department, was it?
“A. No, sir.
“Q. And you said this conversation took place at the Exit Inn and that Michael Wall was there and who else was there?
“A. A subject named David Story.
“Q. And what, if anything, did Wall say about his having been arrested on this occasion with Diane Story?
“A. Just stated that he had been at the Exit Inn drinking.
“MR. GAVIN: We object. This would be hearsay.
“MR. DENSON: It’s certainly—
“THE COURT: Well, of course, it would be I presume to contradict what was said at trial. Overrule the objection.
“A. Just said that he was out there drinking and that a man named Michael Branch which I know as Sprout Branch introduced a girl named Diane to Mr. Wall. And that they stayed around and drank for about an hour. And that they were going to go to the — I believe they said Omelette Shoppe to go to eat and apparently the girl was supposed to be with Wall. And Mike Branch was supposed to drive her car. And Mr. Wall said he knew better than to go through Dadeville. And he went through Dade-ville and he had been drinking and that the police pulled him over, stopped him. And when they were stopping him that the girl had a bag of quaaludes in her purse. And she took them out of her purse and put them under Mr. Wall’s seat. And Mr. Wall told her to get them out from under the seat. And she refused to do so. At that time, Mr. Wall said he was arrested for driving under the influence and that they took them out of the car and looked through the car and found the pills under the seat.
“Q. Did Mr. Wall say what kind of car he was driving?
“A. Cadillac, I believe.
“Q. And what, if anything, on this occasion did Mr. Wall say about marijuana that was found in the trunk of the car?
“A. He said that the police impounded his car and that he had some marijuana in the trunk in a bag and that it was his. But he blamed it on somebody else, the girl that was in the car.
“Q. All right. Did he say how much marijuana was in the bag in the trunk?
“A. No, sir, he said around three or four pounds.
“Q. Said how much?
“A. Approximately three or four pounds.
“Q. And what, if anything, did he say about testifying in court against Diane Story?
“A. The only thing he told me that he got some of his friends to come and testify that it was her dope and that it was in her car and that she needed a ride. And so he put it in his car and transported it. He was taking her to Alex City.
“Q. All right. But he — if I understand you, he told you that this was not the case, that it was his marijuana?
“A. Yes, sir. He just said that it was his and that it was in the trunk when he stopped.”

Officer Parrish also testified that Wall had been convicted of selling the cocaine.

In Houston v. State, 208 Ala. 660, 95 So. 145, a case very similar to the present case, our Supreme Court stated:

“The trial court will not, of course, be put in error for refusing a new trial because of newly discovered evidence when such evidence would not be admissible upon a retrial of the cause. This purported newly discovered evidence, being affidavits of two witnesses that the state’s witness Felton admitted to affiants that he, and not the defendant, killed deceased, is but hearsay evidence — an extra-judicial confession — and would not be admissible to show that another committed the offense. A defendant can disprove his guilt by proving the guilt of some other person. Brown v. State, 120 Ala. 342, 25 South. 182; McDonald v. State, 165 Ala. 85, 51 South. 629. But this must be done by legal evidence, and not by the testimony of witnesses who heard another admit that he committed the offense; this is the merest hearsay — is but an extra-judicial confession or admission but admissible in evidence. Welsh v. State, 96 Ala. 92, 11 South. 450; Underhill on Criminal Evidence (2d Ed.) p. 276, § 145. While this newly discovered evidence was not admissible to show that another committed the offense, it will be admissible to impeach or contradict Felton, who testified as a witness against the defendant, after laying a predicate, and which was not done on the former trial because the proof shows that this newly discovered evidence was unknown to the defendant or his counsel at the time. This witness Felton was the most important one~who testified against the defendant, and it is in fact questionable as to whether or not the state made out a case without his testimony and we are not able to say that proof of these statements would not probably change the result.” [Emphasis added.]

The nature of Officer Parrish’s testimony leads to the same result as in Houston. Not only would his testimony completely undermine Wall’s testimony, it would also undermine every other state’s witness who knew Wall and gave adverse testimony concerning appellant’s actions leading up to the police stopping Wall’s ear. Each of these witnesses, in one form or another, denied at trial what Parrish testified Wall told Parrish he had them do — appear in court and falsely accuse appellant of attempting to sell marijuana. It is certain that the state failed to make a prima, facie case without this line of testimony from Wall’s friends, since the only testimony linking appellant with the marijuana came from these witnesses, and “we cannot say that proof of these statements would not probably change the result.” Houston, supra. This is especially so in light of the apparent neutrality of Officer Parrish and lack of motive in falsely testifying, as opposed to the obvious potential bias of Wall’s friends and acquaintances who testified against appellant. We also note the potentially great weight a jury might give an apparently neutral officer of the law.

In a similar case, our Supreme Court held that the trial court erred in denying the defendant’s motion for a new trial based on the pretrial testimony of two attorneys who represented the defendant at trial. According to the two attorneys the state’s main witness told them she lied when she gave highly incriminating testimony at trial. The court stated:

“But as far as this record is concerned we have the testimony of two reputable members of the bar which shows that the chief witness for the state admitted to them that she had lied under oath in regard to extremely vital and material matters. Their testimony stands uncon-tradicted in this record. As before indicated, Fay Kelsoe was the only witness for the state who directly connected Woodard with the murder of Dean.
“Unquestionably this evidence was discovered since the trial of Woodard and no lack of diligence in connection with its discovery appears. It is certainly material to the issue and is not of a cumulative nature. We think it such that it could change the result upon another trial. As before indicated, the jury which tried Woodard did not have the benefit of this evidence.” Woodard v. State, 251 Ala. 314, 36 So.2d 897.

A jury would presumably give Officer Parrish’s testimony even more weight because of his apparent detachment.

Even though Párrish’s testimony would only be admissible to discredit or impeach the state’s main witnesses, our Supreme Court has held that it is generally not error to deny a motion, for new trial based on newly discovered evidence tending only to discredit the state’s witness unless “upon the whole case it appears probable that the new evidence would change the result.” Maund v. State, 254 Ala. 452, 48 So.2d 553. As discussed above, we cannot say this would not be the result if the evidence were before the jury. See also, Morris v. State, 25 Ala.App. 156, 142 So. 592; Grissett v. State, 18 Ala.App. 675, 94 So. 271; affirmed Ex parte State, 208 Ala. 439, 94 So. 274.

Furthermore, this court, in Reynolds v. City of Birmingham, 29 Ala.App. 505, 198 So. 360, held:

“As to the insistence that the newly discovered evidence was merely impeachment of defendant’s alibi, the rule in this regard has its exceptions and such proffered proof, even though simply impeaching may justify a new trial. Slaughter v. State, supra [237 Ala. 26, 185 So. 373]. Moreover, it has been held, and the view seems logical, that if the impeaching testimony tends to destroy or obliterate the effect of the evidence upon which the verdict rested, it is more than impeaching for that its tendency would be to defeat the verdict returned. Dennis v. State, 103 Ind. 142, 2 N.E. 349.”

Neither is the evidence merely cumulative. Not only did Wall allegedly tell Parrish that the marijuana was his, but he also testified that he had been able to pin the charge on appellant and had asked his friends to testify that the marijuana belonged to appellant. Appellant merely denied owning the marijuana. Furthermore, the fact that appellant denied ownership of the contraband does not render Parrish’s testimony of Wall’s confessed ownership of the marijuana merely cumulative. Woodard, supra; Morris, supra; Grissett, supra.

In light of Houston, supra, and the other cited authorities, we believe that the trial court erred in denying appellant’s motion for a new trial based on newly discovered evidence.

Because of the unlikelihood the other issues appellant raised in her motion for a new trial will arise in a new trial, we do not deem it necessary to address the other issues presented.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Stephen W. CRAFTS v. STATE.
    6 Div. 38.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-985.
    L. Drew Redden and Gerald L. Miller of Redden, Mills & Clark, Birmingham, and Harry Green, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for the unlawful possession of “521 plants of Marijuana, three to ten feet tall” in violation of Section 20-2-70, Code of Alabama 1975. Sentence was four years’ imprisonment imposed in the following manner: three months actual imprisonment in the county jail with the remaining three years and nine months on probation.

I

The crux of this appeal concerns the sufficiency of the State’s evidence to connect the defendant with the growing marijuana. The scope of our review in determining the correctness of the trial court’s ruling on a motion to exclude the State’s evidence is limited to a consideration of the evidence which was before the trial court at the time the motion was made. McCloud v. State, 401 So.2d 314 (Ala.Cr.App.1981). Testimony or evidence given after the State has rested its case and after the motion to exclude has been made cannot be used to support the jury’s verdict. Grimes v. State, 402 So.2d 1094 (Ala.Cr.App.1981); McCoy v. State, 397 So.2d 577 (Ala.Cr.App.), cert. denied, 397 So.2d 589 (Ala.1981).

An aerial survey of selected portions of Marion County revealed a field of marijuana growing behind the defendant’s residence. Marion County Sheriff Floyd Long was flying over the area because he “had been informed” that the defendant “had been dealing in marijuana.”

The small field of marijuana was located behind a barn approximately 125-150 feet from the defendant’s back porch. The green marijuana was growing in between five to seven rows of corn which were 40-50 feet long. Law enforcement officers collected 521 marijuana plants, mpst of which were ten feet tall.

The Sheriff repeatedly described the area where the corn and marijuana were growing as a “garden”. He testified that there “appeared to be a foot or two between the garden” and the mowed area of the yard. At the edge of the woods, approximately twenty to fifty feet behind the garden, were six marijuana plants that had been tied for drying.

The Sheriff testified that the garden had been cultivated and taken care of and had either been plowed with a tiller or hoed in the last couple of months, “but maybe not in the last few days.” On cross examination, Sheriff Long stated that it had been a “good while” since the garden had been cultivated.

The defendant was not home when the marijuana was seized and was never seen in or near the garden. Sheriff Long had been told that the defendant owned the house and “assumed” that it was his “corn patch”.

In arguing that the evidence was sufficient to support a reasonable inference that the defendant constructively possessed the marijuana, the Attorney General lists three factors:

“-Evidence that he (defendant) had been dealing in marijuana.
“-Evidence that 521 cultivated plants were growing in his garden; and
“-Evidence that harvest of the marijuana had begun.”

The Sheriff’s testimony that he had been told that the defendant had been dealing in marijuana is not such a circumstance as will in and of itself provide a connection between the defendant and the contraband. Temple v. State, 366 So.2d 740, 743 (Ala.Cr.App.1979). This hearsay evidence would not even have supplied probable cause for the defendant’s arrest. Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The second and third factors listed above supply absolutely no connection whatsoever between the defendant and the marijuana.

As this Court recently noted in German v. State, 429 So.2d 1138 (Ala.Cr.App.1982), “proximity to illegal drugs (or) presence on the property where they are located .. . may be sufficient to support a finding of possession when accompanied with testimony connecting the accused with the incriminating surrounding circumstances.” (emphasis added)

While the ownership and exclusive possession of the property on which the marijuana is found may warrant a jury in finding that the accused was growing the illegal plant, Puckett v. State, 13 Md.App. 584, 284 A.2d 252 (1971), the proof in this case does not rise to that level. Here, the evidence is notable for its lack of detail and for the absence of information connecting the defendant with the growing marijuana.

Although the Sheriff “assumed” that the defendant planted the corn in the garden behind his house and yard, the State never attempted to establish who owned or possessed or had control over the property on which the marijuana was growing.

Reduced to fundamentals, all the State showed was that the defendant’s residence abutted land on which marijuana was growing. This is analogous to those cases involving possession of illegal liquors, which are equally applicable to prosecutions for the possession of controlled substances. Temple, supra. “(T)he finding of liquor on the accused’s premises in and of itself will not support a conviction without showing his knowledge or connection with it.” Temple, 366 So.2d at 743. “This court has repeatedly held that the mere finding of a still in the vicinity of a man’s home, with a trail or path leading therefrom in the direction of his home, without more, is not sufficient to meet the burden of proof resting upon the State and to justify the conviction of the accused (for possessing a still).” Whited v. State, 22 Ala.App. 492, 493, 117 So. 396 (1928); Clark v. State, 18 Ala.App. 217, 90 So. 16 (1921). See also Deas v. State, 44 Ala.App. 472, 213 So.2d 412 (1968); Etheridge v. State, 42 Ala.App. 77, 152 So.2d 689 (1963); Jones v. State, 18 Ala.App. 116, 90 So. 135 (1921). In Tuggle v. State, 19 Ala.App. 539, 98 So. 700 (1924), the court noted: “We do not mean to imply or to hold that, if the still had been located upon the lands owned or in the possession of the defendant, or under his control, that fact alone would be sufficient upon which to base a verdict of guilty of being in possession of the still. It would of course be a circumstance to be considered in connection with all the other facts, but, standing alone, without more to connect the defendant with the possession of the still, it would be utterly insufficient upon which to base a verdict of this character.” Here, there was no showing that the marijuana plants were growing on the defendant’s exclusively owned and occupied residential lot. Compare Heaton v. State, 139 Ga.App. 83, 227 S.E.2d 854 (1976). There was no showing that the defendant owned and was in exclusive possession of the property on which the marijuana was growing. Puckett v. State, 13 Md.App. 584, 284 A.2d 252 (1971).

At best, the testimony in this case merely raises a suspicion that the marijuana belonged to the defendant. Davidson v. State, 28 Ala.App. 151, 180 So. 129 (1938); Johnson v. State, 35 Ala.App. 429, 48 So.2d 259, cert. denied, 254 Ala. 299, 48 So.2d 261 (1950); Gibbs v. State, 91 Ga.App. 519, 86 S.E.2d 369 (1955).

“(N)o rule is more fundamental or better settled than that convictions cannot be predicated upon surmise, speculation, and suspicion to establish the accused’s criminal agency in the offense charged.” Benefield v. State, 286 Ala. 722, 724, 246 So.2d 483 (1971). Here, the fact that the marijuana plants were in close proximity to the defendant’s residence and the Sheriff’s testimony that he had been told that the defendant had been dealing in marijuana merely showed a possibility that this defendant may have committed the offense. “However, the possibility that a thing may occur is not alone evidence even circumstantially, that the thing did occur.” Parker v. State, 280 Ala. 685, 691, 198 So.2d 261 (1967). “Beyond this possibility, resort must be had to surmise, speculation, and suspicion to establish the defendant’s criminal agency in the offense charged.” Parker, 280 Ala. at 692, 198 So.2d 261. Here, the facts and circumstances only give rise to a suspicion of guilt and are insufficient to support the conviction. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978).

Although the evidence may have been sufficient to show potential control, there was no showing of the defendant’s intention to exercise dominion and external manifestation of intent and control. All three elements are required for proof of possession. Williams v. State, 340 So.2d 1144, 1145 (Ala.Cr.App.1976), cert. denied, 340 So.2d 1149 (Ala.1977). Here, the evidence of the defendant’s possession of marijuana was simply insufficient. Collins v. State, 391 So.2d 1078 (Ala.Cr.App.1980); Radke v. State, 292 Ala. 290, 293 So.2d 314 (Ala.1974); Gass v. State, 372 So.2d 904 (Ala.Cr.App.1979); Cook v. State, 341 So.2d 183 (Ala.Cr.App.1976); Williams v. State, 340 So.2d 1144 (Ala.Cr.App.), cert. denied, 340 So.2d 1149 (Ala.1976); Shipman v. State, 51 Ala.App. 80, 282 So.2d 696, cert. denied, 291 Ala. 484, 282 So.2d 700 (1973); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971). Cf. Fields v. State, 333 So.2d 861 (Ala.Cr.App.1976).

The judgment of the circuit court is reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND RENDERED.

All Judges concur.


text:
    Willie Joe BREEDLOVE v. STATE.
    7 Div. 72.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1016.
    J. Louis Wilkinson, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for murder. Sentence was twenty years’ imprisonment. One issue is presented on appeal.

The record reflects the following occurred during the prosecutor’s closing argument to the jury:

“MR. IGOU (District Attorney): ... ‘It never would have gotten out of the grand jury. If somebody points a gun at you
“MR. WILKINSON (Defense Counsel): Excuse me. We object to that statement, please the Court.
“THE COURT: Overruled.”

“An argument to the jury concerning the fact that an indictment had been returned in the case after a hearing of the evidence by the grand jury, and that the grand jury must have believed accused guilty, has been held improper; but a remark or argument relating to prior determination of the facts by the grand jury in indicting accused has been held not to injure substantial rights of accused.” 23A C.J.S. Criminal Law, Section 1104.

In argument to the jury, the prosecutor’s explanation of “the procedure and processes preliminary to trial of criminal felonies” does not constitute prejudicial error. Commons v. State, 36 Ala.App. 86, 87, 52 So.2d 415 (1951) (Prosecutor’s reference to the facts that before a defendant could be tried on a criminal charge witnesses had to go before a grand jury and testify and an indictment returned did not injure substantial rights of accused). In Sisk v. State, 22 Ala.App. 368, 369, 115 So. 766 (1928), a similar remark was held “not without the bounds of legitimate argument. It simply expressed the opinion of the solicitor as to the effect of the evidence.” In Sisk, the solicitor argued, “If there is any doubt to be given the defendant, the grand jury, in my judgment, has already given it to him in indicting him for murder in the second degree instead of murder in the first degree. See also Love v. State, 31 Ala.App. 584, 586, 20 So.2d 874 (1944) (Statement that “he’s lucky he’s not on trial for murder in the first degree” did not overreach the bounds of proper argument).

These arguments must be distinguished from those of the character of the one condemned in Wideman v. State, 40 Ala.App. 5, 7, 110 So.2d 295 (1957), affirmed, 269 Ala. 49, 110 So.2d 298 (1959). There the prosecutor argued that “if they hadn’t brought enough evidence to convict this defendant the Court would not have allowed the case to go to the jury.” Arguments by the prosecutor calculated to give the jury the impression that the court believes the accused guilty are improper and ground for reversal. Adkins v. State, 38 Ala.App. 659, 661, 93 So.2d 519 (1956), cert. denied, 265 Ala. 666, 93 So.2d 522 (1957) (In closing argument the prosecutor remarked that “if the State had not made out a case the court would have taken it from the jury”). However, such remarks may not constitute reversible error if the defendant’s objection is sustained and the jury is admonished that the argument is improper. Adkins, 265 Ala. at 667, 93 So.2d 522. See also Robinson v. State, 389 So.2d 144, 149 (Ala.Cr.App.), cert. denied, Ex parte Robinson, 389 So.2d 151 (Ala.1980) (Prosecutor’s comment “That’s why — the prosecutor’s — , —to prosecute the ones that are guilty and dismiss the cases against the ones that are innocent” was not of such magnitude as to be ineradicable). See also Ross v. State, 46 Ala.App. 88, 94-95, 238 So.2d 887 (1970) (Remarks were not a cause for reversal where prosecutor stated, “If there had been any question on her part, then under the circumstances, I think it would have been my sworn duty to have told the Court — advise the Court and ask for a nol pros of the case then and there and not go through with any trial”).

We strongly condemn any statement by the prosecutor which conveys to the jury the impression that the grand jury would not have indicted the defendant if he had not been guilty. Here, we cannot say that the prosecutor’s remarks go that far.

The record reveals only a small portion of what the District Attorney actually said. We have no idea of the context in which the statement was made. The record is too incomplete for this Court to find that it was prejudicial to the defendant. Embrey v. State, 283 Ala. 110, 118, 214 So.2d 567 (1968); Williford v. State, 365 So.2d 1257, 1258 (Ala.Cr.App.1978), cert. denied, Ex parte Williford, 365 So.2d 1258 (Ala.1979). The record “does not sufficiently disclose what was said in its context for us to say the argument was improper.” Mincy v. State, 262 Ala. 193, 196, 78 So.2d 262 (1955). Here, the trial judge was in the best position to determine the prejudicial nature of the objected to remark since he knew the context in which it was made.

Additionally, the objection made was only general and was not sufficient to preserve the alleged error. Where part of the argument objected to was permissible and material, and the objection did not separate the material portion from what was deemed improper, the objection was overruled without error. Emerson v. State, 281 Ala. 29, 35, 198 So.2d 613 (1967).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Donald ROBINSON v. STATE.
    8 Div. 799.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1013.

      Robert Y. Wood, Jr. of McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

Donald Robinson was indicted for and convicted of assault in the second degree, pursuant to § 13A-6-21, Code of Alabama 1975. The trial court sentenced him to four years’ imprisonment.

Late on the evening of September 5, 1981, Donald Robinson, using a machete, struck George Keith with a blow that nearly severed Keith’s forearm at the elbow. Keith was rushed to the hospital where, although amputation was considered, doctors were able to save his severely injured arm.

George Keith, the victim, testified that on the night of this incident he had gone to pick up his five children and their mother, Clara Baker, who had been staying at Clara’s parents’ home. Keith escorted the children to the car just outside the front door of the home, and went back inside to find out what was delaying Clara. When he reached the back bedroom he saw the appellant, Donald Robinson, talking with Clara. Words were exchanged and a heated argument ensued. Keith testified that the argument inside the home ended without any physical contact between the two men. Carnell Baker, Clara’s sister, told the two men that they would have to go outside if they wanted to fight. She testified that Keith had a hammer in his hand at one point, but that he left it inside the house at her suggestion.

Both Keith and Clara Baker testified that during the argument inside the home, the appellant pulled a pocket knife, which he held in one hand at his side. Keith stated that he agreed to calm down after he saw appellant’s knife.

The argument inside the house ended when the appellant walked outside. About five or ten minutes later Keith also walked outside. He testified that as he stepped from the front porch he realized that someone was assaulting him with a long black object which he thought was a stick. He raised his arm and deflected the blow. He tried to raise his arm again in defense, but realized that it had been nearly severed at the elbow. Instead, with his good arm, he grabbed his assailant, whom he had recognized as the appellant, around the neck and, in desperation, bit him on the face. The appellant then fled and Keith ran back inside where he was attended to before being rushed to the hospital.

The appellant admitted that he inflicted the wound that nearly cut off Keith’s forearm, but he contended that he acted in self-defense. He testified that while he was in the back bedroom talking to Clara Baker, Keith approached him from behind and, without warning, struck him in the back of the head with a hammer. An argument ensued and when he, the appellant, tried to leave, Keith hit him again with the hammer and pushed him outside into the yard. At about the time he had regained his balance, Keith grabbed him again and bit off the tip of appellant’s nose. He stated that someone, then, came to his rescue and handed him an object with which he immediately struck Keith. This ended the fight. The appellant dropped the object and fled in his automobile.

The appellant’s wife confirmed that on the night of the incident, the appellant came home late with a wound to the back of his head and with the tip of his nose bitten off.

The appellant further testified that he had smoked some “reefers” but had only a half a beer during the four hours just prior to the confrontation with Keith. He testified that he did not own any knives and, specifically, not a machete.

Carnell Baker testified that she had known the appellant for a long time. She knew that the appellant owned a machete because she had once “kept it for him.”

The only issue of any significance at trial was whether or not the appellant acted in self-defense. As demonstrated above, although the appellant testified to the contrary, the evidence was more than sufficient to support the State’s theory that the appellant did not act in self-defense and to support the jury’s verdict that the appellant was guilty of second degree assault. The jury obviously chose to believe the State’s witnesses rather than the appellant.

The appellant contends that the trial court erred in permitting the doctor who saved Keith’s arm to answer questions concerning the degree of impairment to the arm. The doctor answered that amputation was considered due to the severity of the wound, and that the initial one hundred percent disability had, at the time of the trial, improved to about a fifty percent disability. The appellant insists that this evidence was irrelevant and that it “served only to prejudice and inflame the emotions of the jury.” We disagree.

The appellant was charged with assault in the second degree, pursuant to § 13A-6-21(a)(2), Code of Alabama 1975, because allegedly, “[wjith intent to cause physical injury to another person, he cause[d] physical injury to [George Keith] by means of a deadly weapon or a dangerous instrument.” The term “physical injury” is defined in § 13A-1-2, Code of Alabama 1975 as “[impairment of physical condition or substantial pain.”

The doctor’s answers concerning the possible amputation and the degree of disability were indeed relevant and material in determining whether or not Keith’s injury was a “physical injury.” Such evidence was damaging to the appellant’s case, but was admissible to support the offense charged in the indictment.

The appellant also claims that several remarks by the State during closing argument constituted reversible error. The prosecutor made the following comments:

1) “... then let him go, but we will be back here next week trying this same kind of case.”
2) “Do you want this to happen in North Huntsville or Southeast Huntsville?”
3) “Is it going to be a rule of combat?”

All three statements were followed by objections from the appellant. The objections to the first two were immediately sustained by the trial court, and curative instructions were not requested. The objection to statement 3 was overruled.

In general, the trial court has broad discretion in controlling closing arguments. Miller v. State, 380 So.2d 1011 (Ala.Cr.App.1980); Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981). Where, as here, no abuse of discretion is found, there is no error. Donahoo v. State, 371 So.2d 68 (Ala.Cr.App.), cert. denied, 371 So.2d 74 (Ala.1979); Hurst v. State, supra. Any possible prejudice created by the prosecutor in statements 1 and 2 was eliminated when the trial court sustained appellant’s objections thereto. Thompson v. State, 352 So.2d 37 (Ala.Cr.App.1977); Vickerstaff v. State, 374 So.2d 443 (Ala.Cr.App.1979). The propriety of statement 3 was within the discretion of the trial court and from aught that appears in the record the trial court’s action of overruling the objection thereto was proper. See, Thomas v. State, 373 So.2d 1149, 1159 (Ala.Cr.App.), aff’d, 373 So.2d 1167 (Ala.1979), vacated on other grounds, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980); Taylor v. State, 408 So.2d 551 (Ala.Cr.App.1981), cert. denied, 408 So.2d 555 (Ala.1982).

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    David B. BEECH, alias v. STATE.
    1 Div. 331.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 30, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1247.
    W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and Rivard Melson, Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

David B. Beech was tried for and convicted of capital murder pursuant to § 13A-5-31(a)(10), Code of Alabama 1975. The appellant was found guilty of murdering James Evans and Joseph Couey “by one or a series of acts” wherein the victims were brutally beaten and repeatedly stabbed with a knife and each victim’s throat was slashed.

In a separate sentencing hearing the trial court, pursuant to the jury’s recommendation, sentenced the appellant to life imprisonment without parole.

The victims were discovered just after 7:00 on the morning of July 27, 1980, in Room 15 at the Taylor Motel in Mobile. Both victims were dead at the scene and their nude bodies were covered with blood. One of the victims had been stabbed with a knife 47 times and the other 27 times. They had each been beaten with blunt objects — clubs, fists, chairs or the like — and each had had his throat slashed. The motel room was in complete disarray, evidencing a significant struggle between the victims and their assailants. The walls, bed linens, the furniture, and the floor were splattered and smeared with blood. A medical expert with the State of Alabama Department of Forensic Sciences testified that from his view of the scene of the crime and the nature of the wounds inflicted upon the victims he had concluded that it would have been impossible for the victims to have been murdered by one person acting alone.

The appellant, along with Michael Nelson, Holly Carter, and Theresa Manders, had checked into Room 15 at the Taylor Motel on Thursday, July 24, 1980. On the morning of July 27, just before the murder victims were discovered in his motel room, the appellant had been discovered in the parking lot in front of Room 7 where he had “passed out.” The police had just responded to the motel clerk’s call and had arrested the appellant for public drunkenness when the maid, using her pass key, discovered the victims in appellant’s room.

It is undisputed that the appellant and Michael Nelson were, for all practical purposes, male prostitutes. On the evening of July 26, 1980, a Saturday night, the two roommates met and had drinks with Joseph Couey, a prior acquaintance of the appellant, and James Evans. After Couey and Evans had bought several rounds of drinks for the appellant and Nelson at the Fireside Lounge the foursome drove back to appellant’s and Nelson’s motel room.

The key witnesses for the prosecution were Holly Carter and Jerry Cowart. Holly Carter, a prostitute, was a friend of the appellant and had been staying with him in Room 15 at the Taylor Motel. Jerry Co-wart was also a friend of the appellant and was, allegedly, Theresa Manders’ uncle. He had frequented Room 15 while the appellant, Teresa, and the others, resided there.

Carter testified that when the appellant, Nelson, Evans and Couey, left the Fireside Lounge around midnight, the appellant indicated that he and Nelson were taking the other two men back to the motel to perform sexual favors for money. She stated that when she saw the appellant and Nelson again, about two hours later, they had each changed shirts, and the appellant had a bandage on one arm. The appellant told her that he had hit one of the other men in the head and that Nelson had cut both their throats. She did not believe the appellant until he offered to take her back to the motel and show her. Later, after the appellant “passed out” from drinking, she took one of the victim’s car keys from the appellant and drove the victim’s car to New Orleans, Louisiana, where she was subsequently arrested by the authorities.

Cowart testified that he had seen the appellant and Nelson several times that Saturday night. He had started drinking with the appellant sometime after 2:00 a.m. when the appellant told him “he [the appellant] killed two dudes” earlier. Cowart stated that the appellant was not “drunk” at that time, but that he proceeded to get drunk until he eventually “passed out.” Cowart, who knew that the appellant was staying in Room 15 at the Taylor Motel, found someone to give them a ride to the motel. He did not have any money to pay for the ride so he gave the driver a wrist watch, later identified as one of the victim’s watches, that he found in appellant’s pocket.

Thomas Carmichael testified that he gave Cowart and the appellant a ride back to the Taylor Motel. When they arrived at the motel, Cowart disappeared to go find a room key for appellant’s room. Carmichael waited for a few minutes and when Cowart failed to return, he dumped the appellant, who had “passed out,” out into the motel parking lot and left. Carmichael confirmed the fact that Cowart had given him a watch with a broken band in exchange for the ride, and he helped the authorities recover the watch and the band.

A blood analyst with the State of Alabama Department of Forensic Sciences testified that blood found on appellant’s shirt, on the shoes that the appellant was wearing when arrested, on shoes recovered from one of the victim’s automobiles, and on the pocket of appellant’s jeans, was all consistent with appellant’s blood type. However, some blood found on the back of appellant’s pants leg was consistent with the blood types of both victims and with the blood found on the bed linen and the walls at the scene of the murders.

The appellant testified as his only witness in defense. He stated that he had met Joseph Couey a week before he was killed and had performed sexual favors for him in exchange for money. He admitted that he, Nelson, and the two victims returned to Room 15 at the Taylor Motel shortly after midnight as the prosecution witnesses had described but added that Holly Carter had returned with them. His alibi was that when they reached Room 15, Couey requested that he be left alone with Evans for a little while. The appellant explained that both victims were fully clothed when he and Nelson left and that he took Evans’ car as suggested by Couey. He denied any knowledge of the events that led to the double murder in his motel room.

According to the appellant, he and Nelson drove from the motel to Ruby Lee Salva’s home between 12:00 and 1:00 a.m. where Nelson returned some money that he had borrowed. While there, Nelson got into a fist fight with another man. The appellant stepped in to break up the fight and received a cut on his hand. From Ruby’s house, the appellant and Nelson returned to the Fireside Lounge between 1:00 a.m. and 2:00 a.m. He vaguely remembered talking with Holly but denied that he told her that he and Nelson had killed the other two men. He did not remember any conversation with Cowart. He remembered ordering a drink but remembered nothing else until he woke up at the police station the next morning.

The appellant denied ever having Evans’ watch and emphatically denied any participation in the killing of Couey and Evans.

The appellant’s testimony was somewhat inconsistent with several prosecution witnesses. The night clerk at the Taylor Motel saw the appellant and his companions return to the motel between 12:30 and 1:00 a.m. However, contrary to appellant’s testimony, he testified that Evans’ automobile, in which the group had arrived, was still in the motel parking lot when he made his 2:00 a.m. security check. This was consistent with Ruby Salva’s testimony that the appellant and Nelson arrived at her house between 2:00 and 3:00 a.m. Ruby also testified that the appellant was not involved in Nelson’s fight at her house.

On rebuttal Evans’ son testified that the shoes removed from the appellant when he was arrested belonged to his father. Apparently, one of the pairs of blood spattered shoes later recovered from Evans’ automobile belonged to the appellant.

Also on rebuttal the state introduced a prior statement that the appellant had given the authorities on the day of his arrest. This pre-trial statement, like appellant’s testimony at trial, was exculpatory in nature, but it was inconsistent with his statements from the witness stand in one important respect. In the pre-trial statement the appellant stated that the victims did not return with Nelson and him to the motel. He stated that he, Nelson, Cowart, Holly Carter and possibly others returned to the motel to get “the girls” some stockings but that Couey and Evans remained at the Fireside Lounge. Couey and Evans were still at the Fireside Lounge when he returned. He did not remember much, if anything, after returning to the Fireside Lounge until he woke up at the police station. In the pretrial statement he had no idea how he cut his hand, or how Couey and Evans were killed.

Appellant’s constitutional challenge of the Alabama Supreme Court’s holding in Beck v. State, 396 So.2d 645 (Ala.1981), is the same argument that has been ruled meritless on numerous occasions. See, Coulter v. State, 438 So.2d 336 (Ala.Cr.App.1982), and cases therein cited.

The appellant claims that he was denied his right to a speedy trial. He contends that the 14 month delay between his arrest (July 27, 1980) and the day of the trial (September 28, 1981) was prejudicial to him because of the unnecessary incarceration, the undue anxiety of waiting for trial, and the effect on his ability to prepare for the trial.

The appellant filed the factual equivalent of a motion to dismiss for failure to grant a speedy trial on September 10, 1981, just eighteen days before trial. He contends that the trial court erred in denying this motion. We disagree.

Due to the nature of the state’s case against the appellant, which was based primarily upon circumstantial evidence, and in comparing this 14 month delay to the delays in Byrd v. State, 421 So.2d 1344 (Ala.Cr.App.1982), Cofer v. State, 440 So.2d 1116 (Ala.Cr.App.1983), and Minnifield v. State, 439 So.2d 753 (Ala.Cr.App.1983), we have concluded that the delay in this instance was not “presumptively prejudicial,” and that the appellant was not denied his right to a speedy trial. See, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the standards adequately discussed therein.

Furthermore, the appellant was on parole for grand larceny at the time of his arrest for public drunkenness on the morning of the murders. A revocation of his parole would have, undoubtedly, justified his incarceration for part, if not all, of the period between July 27, 1980, and the day of the trial. Appellant’s trial delay complaints were grounded upon the alleged hardships of incarceration, but he made no specific claims and presented no evidence of any actual prejudice caused by the delay. See, Scaloni v. State, 383 So.2d 586 (Ala.Cr.App.1980).

Appellant’s pre-trial statement was tape recorded and immediately transcribed from the tape recordings. At trial, pertinent portions of the written transcription of this pre-trial statement were admitted into evidence over objections by the appellant that such admissions violated the “best evidence rule.” The appellant argues that this constituted reversible error, because the tape • recording, and not the transcription, should have been presented to the jury.

We have thoroughly reviewed the portions of the record which relate to appellant’s pre-trial statement and have concluded that, if there were any technical errors committed in admitting into evidence the statement or any portion thereof, such errors were not harmful to the appellant. A.R.A.P. 45.

Appellant’s pre-trial statement was admitted through the testimony of Neil Han-ley, the former assistant District Attorney for Mobile County who conducted the interrogation which led to the statement. Han-ley, after the Miranda predicate had been established, testified that he conducted a question and answer session with the appellant in the early evening on July 27, 1980. The questions and answers were tape recorded and, immediately thereafter, the tape recordings were transcribed by a competent secretary. Hanley stated that he reviewed the written statement the next day and was certain that it was an accurate transcription of his interrogation of the appellant. Hanley was then permitted to read the statement to the jury, because he could not remember all of the questions and answers.

The appellant was, subsequently, recalled as a witness to explain certain discrepancies between his pre-trial statement and his previous testimony at trial. He pointed out that certain information was either left out of, or misstated in, his pretrial statement simply because at that time he could not clearly remember all the events that transpired on the night of the murders. He did not challenge the accuracy of any specific parts of the statement but did state that he did not remember his answers to certain questions.

His final comment on the pre-trial statement was that he was not denying that the statement was voluntary or that it was substantially accurate.

Under these circumstances, especially in light of appellant’s own verification of the voluntariness and accuracy of the statement, there is no reason to doubt the authenticity of the transcription, and the trial court will not be held in error for admitting it. Compare, Fleming v. State, 57 Ala.App. 556, 329 So.2d 616 (1976); Beckham v. State, 389 So.2d 573 (Ala.Cr.App.1980); and Swann v. State, 412 So.2d 1253 (Ala.Cr.App.1982) (other properly predicated evidence of an accused’s incriminating statements was admissible, even though a tape recording might have been more accurate).

Moreover, although it possibly created some doubts in the minds of the jury as to the credibility of certain portions of appellant’s trial testimony (which was the prosecution’s motive for presenting it), appellant’s pre-trial statement was exculpatory in nature and consistent with his trial testimony emphatically denying any participation in the murders.

We are convinced that the jury’s verdict would have been the same had the tape recording been admitted into evidence instead of, or in addition to, the written transcription of that recording. See, A.R.A.P. 45.

Appellant’s argument that his conviction must not stand because no aggravating circumstance, required to elevate a murder to a capital murder, was alleged or proven is unfounded. The capital offense defined in § 13A-5-31(a)(10), Code of Alabama 1975, was properly alleged in the indictment and was supported by the evidence. There is no merit in the argument that one of the “aggravating circumstances” enumerated in § 13A-5-35, Code of Alabama 1975, must be averred in the indictment. See, Dobard v. State, 435 So.2d 1338 (Ala.Cr.App.1982), and cases cited therein.

The appellant further contends that the jury’s verdict “is contrary to and not supported by the evidence,” in that the state failed to prove that a first-degree murder was committed or that two or more people were killed by one dr a series of acts, or that the appellant was involved.

The first two alleged defects in the state’s case have no basis in logic or fact. Appellant’s defense was alibi. There was no evidence whatsoever to rebut the overwhelming evidence that Couey and Evans were both the victims of first-degree murder and that they were killed by one or a series of acts.

As to the third alleged defect, our preceding summary of the evidence, including appellant’s alibi testimony, demonstrates that, although the appellant denied any involvement in the murders, there was sufficient evidence to support the jury’s verdict to the contrary.

Both Holly Carter and Jerry Cowart testified that the appellant admitted his involvement in the murders shortly after they were committed. Their testimonies were consistent with all of the overwhelming circumstantial evidence against the appellant.

The only evidence favorable to the appellant was his own alibi. Unfortunately, for the appellant, his alibi was not supported by any other evidence, direct or circumstantial. The jury was burdened with weighing the abundance of circumstantial evidence pointing to appellant’s guilt against appellant’s own uncorroborated alibi. The jury viewed the appellant, as well as all the witnesses against him, from the witness stand and was, therefore, capable of making an informed determination as to the weight and credibility of each testimony. The jury’s verdict was supported by the evidence and will not be disturbed on this appeal.

For aught that appears in the record, this appellant received a fair trial and his substantial rights were adequately protected.

Appellant’s capital murder conviction and subsequent sentence of life imprisonment without parole are, therefore, affirmed.

AFFIRMED.

All the Judges concur, except BOWEN, J., who concurs in the result only.