author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Walter Davis BENFORD v. STATE.
    6 Div. 496.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied April 2, 1982 Alabama Supreme Court 81-322.

      Roderick Beddow, Jr. and Steven R. Garrett, of Beddow, Fullan & Vowell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of manslaughter (Code 1975, § 13A-6-3) after a trial on an indictment charging him with murder (Code § 13A-6-2) of David ■ Harris, by shooting him with a pistol. The court sentenced him to imprisonment for ten years.

No issue is raised on appeal as to the sufficiency of the evidence to support the verdict, and we find no reasonable basis for such an issue. We limit our summary of the evidence to portions thereof that have some bearing upon the issues presented.

The evidence shows without dispute that about noon, March 21, 1980, the deceased was killed by a bullet from a pistol in the possession of defendant, while the two were in or about the front yard of 1504 — 31st Street Ensley, which was residential property owned by the deceased and his fiancée and which at the time was unoccupied as a residence and was undergoing improvements in anticipation of its future occupancy by the engaged couple.

Some of the work had been done by defendant, a general contractor, particularly some tile work in the bathroom, sheetrock-ing some walls, putting in a window and placing wallpaper on some walls. They came to an agreement as to the work to be done and the price to be paid therefor but had reached a disagreement as to the quality of the work performed by defendant, particularly as to the tile in the bathroom, which disagreement led to the confrontation that resulted in the death of Mr. Harris. The defendant was contending that he was entitled to be paid as agreed upon, and Mr. Harris was contending that the work was not satisfactory and payment should not then be made.

Mr. Harris had discussed what he considered unsatisfactory workmanship with Leroy Dumas, another contractor. Mr. Harris and Mr. Dumas were together a large part of the morning of the alleged homicide, during which time Mr. Dumas inspected the work that had been performed by defendant and was in the process of planning some additional work on the house. They were together at the house when defendant arrived in a truck about 11:00 or 11:30 A.M. With the defendant were Andrew McCall and a man by the name of Ashley.

Leroy Dumas testified on call of the State and Andrew McCall, as well as the defendant, testified on call of the defendant. They and Ashley, who did not testify, were the only living persons who saw and heard what occurred at or about the house until about a half hour later, when Mr. Harris was killed and was left lying in the front yard pending arrival soon thereafter of law enforcement authorities.

A material part of the testimony of the defendant was as follows:

“Q. All right. Then what occurred, sir?
“A. We started into the house. And when we started in he [David Harris] went in first and stopped at the hall. And I started down the hall going to the bathroom. The bathroom is at the end of the hall that goes halfway of the house. “And I could hear him in behind me telling McCall that if he was with me to leave because I was going to do that.
“Q. Now, between the time that you talked to him there at the door and going back to the bathroom, did you notice anything on Mr. Harris’ person?
“A. I noticed he had a gun then. But I really wasn’t paying that much attention because I wasn’t thinking about it.
“Q. All right. He had a gun. Where did he have the gun?
“A. It was stuck in his belt.
“Q. All right. When he told McCall to leave, what did you do or say, if anything?
“A. Well, the harshness that he said it in made me look back at him. And then I said let’s go. I went right past both of them and out the door. Mr. Harris followed me and said wait a minute, I want to hold up my half—
“MR. ADAMS: We object, not responsive.
“THE COURT: Sustained.
“Q. All right. You went out the door. Do you know where Mr. McCall was at this time?
“A. Behind me.
“Q. Did you know where Mr. Ashley was at this time?
“A. On the porch.
“Q. What did you do, if anything, then?
“A. Well, Harris had a gun.. So, I took the gun that was in the truck and put it up under my jacket in my belt.
“Q. Did you put it in either one of your pockets?
“A. It wouldn’t fit in the pocket.
“Q. All right. Where was the gun? Where did you put it?
“A. Into my belt up under my jacket.
“Q. All right. Then what occurred, sir?
“A. At that time he had walked up to me. And when he got close enough to me he hit me. He hit me with his — He really didn’t sound like he was going to hit me when he was talking because he was talking about too many different' things.
“Q. All right. What did he do? That’s what I asked you?
“A. Oh. He hit me with his hand and knocked me back against the car.
“Q. All right. How far were you away from the car at the time and on the occasion that you struck?
“A. I had just come around the car. About 18 inches.
“Q. When he hit you and knocked you back to the truck, what occurred then, Mr. Benford?
“A. Well, he said, T ought to shoot you right now.’ And he hit me and pulled his gun. And by me falling—
“Q. All right. When he pulled the gun what did he have the gun in?
“A. In that glove, but it stayed in the glove.
“Q. When he pulled the gun what happened to the glove?
“A. Nothing. It stayed in the glove.
“Q. All right. What occurred then when he pulled the gun?
“A. I was falling. And I sort of knocked him off balance, I guess, because he was falling toward me as I was falling back against the car.
“Q. All right. Then what happened?
“A. I tried to get the gun out and before I could get it completely out it went off. And it almost shot me. It did scrape across my hand. And I caught my balance and he went down on one knee. He had dropped his gun. So, he reached over to get his gun and I clicked back on the gun that I had. And he said don’t shoot me anymore.”

The parties seem to agree that the testimony of Leroy Dumas as a whole was more favorable to the State and less favorable to defendant than was the testimony of Andrew McCall. Some differences in the testimony of the eyewitnesses are attributable, we think, to the fact that they were not all at the same place on the premises at the same time and were therefore not in a position to be in absolute agreement as to all that occurred.

The evidence as a whole, including the testimony of defendant, justified the submission of the issue of guilt vel non as to each of the three kinds of unlawful homicide, murder, manslaughter and criminally negligent homicide (§ 13A-6-4).

A major contention of appellant is that the trial court erred in overruling defendant’s motion for a mistrial. As a preface, appellant sets forth the following portion of the transcript occurring during the direct examination by the State of the fi-ancée of the deceased:

“Q. Okay. Did Mr. Harris talk with him on that occasion?
“A. Yes, sir, he did.
“Q. And then did he say anything to you after the conversation with Mr. Benford?
“A. Yes.
“MR. BEDDOW: Judge, just a minute, I object to that, may it please the Court.
“THE COURT: What did he say? All right.
“MR. ADAMS: Judge, I want to show that this statement he made was a threat. He threatened to burn the man’s house down, ...”

Other portions of the transcript show that the conversation referred to in the portion quoted above was a telephone conversation between defendant and Mr. Harris that occurred early on the morning of Mr. Harris’ death and while he and his fiancée were together at a house some distance from 1504 — 31st Street, Ensley, which the witness did not hear. Immediately after the quoted portion of the transcript, counsel for defendant interposed an objection to further proceedings in the presence of the jury at the time and the jury was then excused for lunch, somewhat prematurely but conveniently, in order that the parties through their counsel could present to the court their respective positions as to what the State proposed to show and as to what special prosecutor for the State had just stated. A discussion ensued in which State’s counsel took the position that it should be allowed to show by the witness that Mr. Harris told the witness immediately after the conversation between him and defendant that the defendant had “threatened to burn Mr. Harris’ house down.” During an early part of the discussion, the following occurred:

“MR. BEDDOW: ...
“That would be the rankest sort of hearsay. And then counsel, representing the State of Alabama made the declaration before the jury, I want to prove there was a threat and I want to prove that this man burned — threatened to burn Mr. Harris’ house down.
“I think it’s highly improper. Number one, it’s hearsay. And—
“MR. ADAMS: Judge, I think it—
“MR. BEDDOW: —Number two, it’s a declaration or an offer to prove before the witness something that is irreparable and irretrievable. And we are going to ask for a mistrial.”

Thereupon, counsel for the State commenced a reply in part as follows:

“MR. ADAMS: Judge, first of all I want to address a point, and that is, that that is an exception to the hearsay rule. I can give you the exception in a moment that deals with it.”

Thereupon, counsel quoted Gamble, McEl-roy’s Alabama Evidence, § 273.02 (1977) as follows:

“If it is material to prove that a person at a specified time had been put on notice about a matter, or entertained a specified belief, acted in good or bad faith, had a specified motive to do or not to do an act or to do an act with a specified motive, or was mentally deranged, proof that a statement was made to him prior to the time in question which was reasonably calculated to create, and which is offered for the purpose of showing, notice, belief, good or bad faith, motive or mental derangement is not violative of the Hearsay Rule.”

The trial court ruled correctly, we think, as to the admissibility of the proposed evidence by ruling that it was inadmissible and instructing the jury to disregard the pertinent statement made by counsel for the State. Judge McElroy made it clear at § 273.02 that the particular exception to the Hearsay Rule was limited to testimony by a witness as to what another person had said and does not include testimony by a witness as to what another person said that a third person had said.

After advising the parties that it would sustain objections of defendant to the proposed evidence, the court stated that it would inform the jury that the statement of counsel for the State as to the proposed evidence was improper. Upon the return of all the jurors to the box, the court instructed them as follows:

“THE COURT: Members of the jury, before we adjourned for lunch a motion was made and Mr. Adams made a response to it just before we adjourned. And what the attorneys say is not evidence, as I told you. What Mr. Adams said there to the court, not a question to the witness, was improper. And I’m asking you to disregard that remark and not consider it in your deliberations at the end of this case. Can all of you disregard the remark that was made?
“I see no hands. I assume that all of you are shaking your heads affirmatively. We will proceed. All right. Mr. Adams.”

There was no further allusion in the presence of the jury to the proposed evidence.

Appellant argues strenuously that the statement made by counsel for the State was ineradicably prejudicial and entitled him to a mistrial. We do not doubt its prejudicial nature, but we do not think it was ineradicable prejudice. During the argument on the question of the admissibility of the evidence out of the presence of the jury, counsel for the State said:

“Our point is that he was notified that the man was going to burn his house down, and on the basis of that he armed himself and that he had a right to do so, and that is an exception to the hearsay rule because it shows notice of what was going to happen.”

It can be readily seen that State’s counsel was not obstinately attempting to get before the jury information that he knew did not constitute admissible evidence. As mistaken as counsel for the State was as to the admissibility of the evidence, the transcript shows that he was endeavoring to let the court know the nature of the evidence that he hoped to introduce in order for the court to make a correct ruling, which the State hoped would be in its favor, as to the proposed evidence. We can understand the position of defendant’s counsel to the effect that State’s counsel should have known better than to believe that the evidence was admissible, but the transcript does not convince us that such was true. In fact, the transcript convinces us that counsel for the State was sincere in his view as to the question, as was defendant’s counsel, even though we feel that State’s counsel was wrong and defendant’s counsel was right in their respective views.

We recognize that a serious question is presented as to the ineradicability of the prejudice that could have been aroused by the statement of counsel for the State, and most persons in the position of appellant would have a similar view, but any prejudicial matter as a rule seems more prejudicial to the one who is prejudiced than to an outsider, who is appraising it from a nonpartisan standpoint. It can also be correctly said that the State’s counsel thought that the evidence would have been more beneficial than would others who were viewing it from a nonpartisan standpoint. ' The trial court had the opportunity to examine and weigh the question of the extent of the prejudicial nature of the statement, both prospectively and retrospectively, that is, before the verdict of the jury and thereafter, and ruled adversely to defendant on his motion for a mistrial and on his motion for a new trial.

We are convinced that in many respects the defendant made a favorable impression on the jury as to the aggravating provocative conduct of the deceased. By finding defendant guilty of manslaughter, instead of murder as expressly charged in the indictment, the jury evidently concluded that defendant caused “the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself,” which is a method of committing manslaughter as provided by § 13A-6-3(a)(2). It seems that the jury in determining that defendant was guilty of manslaughter instead of murder was actuated by what occurred at 1504 — 31st Street, Ensley, within a period of about thirty minutes, while the defendant and the deceased were somewhere on that property, and was not influenced by anything the defendant might have told the deceased by telephone a few hours before. There is no indication that the jury blamed the deceased in the least for possessing a pistol at the time.

The transcript also shows that the jurors at one time while deliberating were apparently seriously considering the issue whether defendant was guilty of criminally negligent homicide, for they returned to the court room with the question:

“What is the substantial difference between manslaughter and criminally negligent homicide?”

The court then recharged the jury for two transcript pages on the difference between the two kinds of homicide. Although it did not recite § 13A-6-4 on the subject, the foreman of the jury, State’s counsel and counsel for the defendant all expressed satisfaction as to the court’s instruction, and the jury then returned for further deliberations.

Whether a motion for a mistrial should be granted is often dependent upon what is heard and seen by the presiding judge. He is in a better position than an appellate court to make a correct determination of the motion, and the determination thereof is wisely vested in his sound discretion. An appellate court should not rule otherwise unless there has been a clear abuse of discretion. Hallman v. State, 36 Ala.App. 592, 61 So.2d 857, cert. denied, 61 So.2d 861 (1952); Ballard v. State, 51 Ala. App. 393, 286 So.2d 68, cert. denied, 291 Ala. 772, 286 So.2d 72 (1973); Franks v. State, 45 Ala.App. 88, 224 So.2d 924 (1968); Moore v. State, 49 Ala.App. 408, 272 So.2d 615 (1973). We find no abuse of discretion in the action of the trial court in overruling defendant’s motion for a mistrial discussed above.

The second issue presented by appellant is thus stated in his brief:

“WHETHER THE COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL ON GROUNDS OF IMPROPER CONDUCT OF THE STATE PROSECUTORS.”

In arguing this issue, appellant refers again to his ground for a mistrial by reason of the statement of counsel for the State in the presence of the jury with regard to his effort to show by a witness that the deceased had told her that defendant had threatened to burn his house down, which issue we have already determined adversely to appellant. Appellant’s additional argument as to the asserted “improper conduct of the State prosecutors” is directed to two other occasions on which the court declined to grant defendant’s motion for a mistrial. One motion occurred after the State had rested and before the defendant had presented any evidence. As to it, the transcript shows the following:

“MR. BEDDOW: Number two, the State of Alabama has exhibited before this jury two exhibits that were in brown paper bags. And they were unstapled and pulled out and shown to a witness on the stand before the jury. And they have not made any effort to forge a chain or to properly introduce these two weapons.
The jury has seen them and they are not in evidence.
“And we would respectfully ask for a mistrial on that factor.”

The incident referred to by defendant’s counsel occurred during the redirect examination of State’s witness Leroy Dumas as follows:

“Q. For the record, I am taking out of the sack, City Case No. G-124368, that I received from Evidence Technician Grady Beardon yesterday afternoon — mark that. “(Whereupon, a pistol was then marked State’s Exhibit 10 for identification and a glove was marked State’s Exhibit 11 for identification.)
“Q. Mr. Dumas, I will show you State’s Exhibit No. 10 and ask you if you recognize that pistol?
“A. Yeah.
“Q. And where have you seen it before?
“A. At the site on the day that Mr. Harris was shot.
“Q. Is that the pistol you saw in the possession of Benford on the day of the shooting?
“A. I think so. Yes.
“Q. Does it look about the same type?
“A. Yes, about the same type.
“MR. GOMANY: We would offer No. 10, Judge.
“MR. BEDDOW: I object to it. The chain hasn’t been offered.
“THE COURT: All right.
“Q. Well, I will ask you to look at State’s Exhibit No. 11. Do you recognize that?
“A. I recognize the handle and the top portion of the glove, yes, sir.
“Q. And where have you seen this before?
“A. On the presence of the deceased, Mr. Harris.
“Q. And was it positioned down in his belt, like so? (Indicating)
“A. Yes.
“MR. GOMANY: Now, we would offer both of them.
“MR. BEDDOW: We object to it.
“THE COURT: Sustain the objection at this time.”

Appellant complains that the State did not thereafter attempt to establish the chain of possession of exhibits 10 and 11 and that the jury saw the items that were never admitted in evidence. We do not disagree with appellant’s contention to the effect that the State should have either handled the matter by at least endeavoring to establish the chain of possession or by not exhibiting the items in such a way as to be seen by the jury, but we are not persuaded that the action resulted in any prejudice against the defendant or that there was any abuse of the trial court of the discretion vested in it as to the motion for a mistrial.

The third incident upon which appellant relies for his contention that the conduct of the prosecution was so improper that a mistrial should have been granted occurred during the cross-examination by the State of the witness Sergeant Charles M. Melton. As to it, the transcript shows:

“Q. Sergeant Melton, did you take a tape recording of Dumas’ interrogation when you talked to him about the facts?
“A. Yes, sir.
“Q. And did you give that to me last week?
“A. Yes, sir.
“Q. Have you had a chance to play it back and review it?
“A. Yes, sir, I have.
“Q. Does it accurately reflect the wording of the questions that you asked Dumas, the questions and answers that Dumas responded to?
“A. Yes, sir.
“MR. GOMANY: Judge, we would offer the tape for the jury to hear it at this time through Sergeant Melton, which would be better than the questions propounded to the witness earlier by Mr. Beddow. The tape is much more accurate.
“MR. BEDDOW: I want to make a motion.
“THE COURT: All right, let’s go in here.”

Thereupon, there was a hearing out of the presence of the jury, in which defendant’s counsel complained of what had just taken place and requested a mistrial. The court replied, “I think it was improper,” but expressed some concern as to whether defendant’s counsel had made an opening for the conduct of State’s counsel. Upon the return of the jury to the courtroom, the court said:

“Members of the jury, just a moment ago when Mr. Gomany asked for a tape to be played, and I want to say that that was improper and for you to disregard that remark and that offer. There are certain things on that tape — Well, the tape should have been heard first, at any rate. And there are certain things on there that the Court might have kept out that would be extraneous, it would be improper and would have nothing to do with this case. It would be prejudicial. So, that was very improper.
“Can all of you disregard that proffer that was made just a moment ago and not let it prejudice any of the parties in any way? Can you follow the Court’s instruction on that point?
“All right. Thank you. Proceed, Mr. Gomany.”

Nothing further was said about the matter during the trial. The instructions of the court were sufficient, we think, to remove any prejudice against defendant that could have been caused by the particular conduct of the defendant, and the trial court was not in error in overruling the motion for a mistrial.

The rest of the issues on appeal pertain to the refusal of some charges requested in writing by the defendant. The defendant requested seventy-one written charges. All but six were refused. Appellant now urges that the court erred in the refusal of each of charges 24, 35, 38, 47, 52, 53, 61 and 62.

Charge 24 states:

“The Court charges the jury that if, from the testimony, there is a probability of defendant’s innocence, that is a just ground for a reasonable doubt; and if such probability exists in this case, you cannot convict the defendant.”

Charge No. 62 states:

“The Court charges the jury that if there is from the evidence a reasonable probability of defendant’s innocence, the jury should acquit the defendant.”

Appellant finds some support for these charges in Mitchell v. State, 28 Ala.App. 119, 180 So. 119 (1938); Pate v. State, 42 Ala.App. 334, 163 So.2d 645 (1964) and in Blalock v. State, Ala.Cr.App., 369 So.2d 35 (1979). However it has been established in Alabama that it is not reversible error for the court to refuse such a charge if the court in its oral charge comprehensively covers the subject of the necessity for proof of guilt beyond a reasonable doubt to sustain the verdict finding the defendant guilty. Perhaps Judge James Rice of the former Alabama Court of Appeals was one of the first jurists to note the harmlessness in the refusal of such a charge in that circumstance. He concluded that the jury could not possibly find that there was a probability that defendant was innocent, if, as a matter of fact it found that there was no reasonable doubt of his guilt, and that the charge was abstract. The same result has followed in many subsequent cases: Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972); Turner v. State, 43 Ala. App. 42, 179 So.2d 170, 173 (1965); Walker v. State, Ala.Cr.App., 358 So.2d 800, 810 (1978).

Charges 35 and 38 are as follows:

35. “I charge you, members of the jury, that if the evidence or any part thereof, after consideration of the whole of such evidence, generates a well founded doubt of defendant’s guilt, the jury must acquit him.”
28. “I charge you, members of the jury, that if upon a consideration of the evidence or any part thereof such evidence generates a well founded doubt of defendant’s -guilt, then you must acquit him.”

Appellant relies upon Atkins v. State, Ala. Cr.App., 369 So.2d 303 (1979). However, it is clear that in Atkins the reversal was based upon failure of the trial court to charge the jury to the effect that a reasonable doubt or a well founded doubt as to defendant’s guilt could be based on “any part” of the evidence. In the instant case, this “any part” of the evidence was covered by a portion of the court’s oral charge as follows:

“... And on the other hand, if after a full and fair consideration of all the evidence in the case, a part of the evidence or the lack of the evidence, if you do not have a deep and abiding conviction that the defendant is guilty, then you would not be convinced beyond a reasonable doubt and the defendant should be acquitted.”

Charges 35 and 38 use the term “well founded doubt” instead of “reasonable doubt,” but appellant concedes that “a well founded doubt is the same as a reasonable doubt,” as was held in Creagh v. State, 149 Ala. 8, 43 So. 112 (1907). Charges 35 and 38 were refused without error.

We now consider defendant’s refused charge 47:

“I charge you, members of the jury, that if the evidence for the State consists of the statement of a witness, the truth of which the jury have a reasonable doubt, you cannot find the Defendant guilty.”

With admirable candor, appellant puts his finger on the troublesome nature of instructions similar to charge 47, by quoting from Slayton v. State, 27 Ala.App. 422, 173 So. 632, 639 (1936), after reversal on other grounds, 234 Ala. 1, 173 So. 642 (1936):

“The charge here under consideration does not come within the influence of the cases of Koch v. State, 115 Ala. 92, 22 So. 471, Boozer v. Jones, 169 Ala. 481, 53 So. 1018, and Love v. State, 218 Ala. 66, 117 So. 400. In those cases, the facts and the charges are entirely different; there, there were other witnesses to the details of the crime; here the conviction of the Defendant depends solely and alone upon the testimony of the witness, Bragg, and if the jury did not believe his testimony beyond a reasonable doubt, he could not be convicted and the Defendant was entitled to have the jury so instructed.”

In endeavoring to place the instant case within the “one witness” for the prosecution category, appellant states, inter alia, “In the instant proceeding, the State relied upon one witness, Dumas, to prove its case.” We are not persuaded that the case is within the “one witness” category. We are not persuaded that the conviction of defendant was dependent upon the testimony of Dumas. We think we have quoted enough of the testimony of defendant to show that even under his own testimony a jury issue was presented as to his guilt of each of the three kinds of homicide, murder, manslaughter and criminally negligent homicide. In Slayton v. State, supra, a valid conviction depended “solely and alone upon the testimony of the witness, Bragg.” A similar situation existed in Wilbanks v. State, on remand, 48 Ala.App. 549, 266 So.2d 623 (1971), rev’d, 289 Ala. 171, 266 So.2d 632 (1972), wherein the following refused charge was considered:

“The Court charges the Jury that if a conviction in this case depends on the testimony of a single witness, and if the Jury have a reasonable doubt as to the correctness of the testimony of such witness, they cannot convict the Defendant.”

The Court of Criminal Appeals held that the refusal of the charge was erroneous, but the Supreme Court held that it was “misleading, if not positively erroneous, in using the word ‘correctness’ in alluding to the single witness’ testimony .... ” It is clear that in Wilbanks, a conviction was absolutely dependent upon the testimony of a single witness, for it was stated at 266 So.2d 631:

“Save for the testimony of Dr. Rehling, particularly his opinions that the bullet found in the wall of King’s house was fired by Wilbanks’ rifle; from a point immediately behind his house; and blew off the top of Barbara King’s skull, the State did not make out a prima facie case.”

In addition to the failure of the instant case to come within the “single witness” category, we note that the word “consists” in the charge is imprecise in setting forth the principle asserted by appellant and is misleading. In order for the principle asserted by appellant to be applicable, the State’s evidence of guilt must have consisted solely or exclusively of the testimony of the witness.

The court was not in error in refusing defendant’s charge 47.

Defendant’s requested charges 52 and 53 are as follows:

No. 52: “I charge you, members of the jury, that if a witness has come upon the stand and testified to a different state of facts here to what said witness testified upon the preliminary trial of the Defendant, you have the right to look to this evidence as evidence tending to impeach said witness who has made such conflicting statements.”
No. 53: “The Court charges the jury that if they find from the evidence that any witness has made contradictory statements as to the material facts in this case, or of any such facts, the jury may look to those contradictory statements in order to determine what credence they will give to the testimony of said witness.”

Charge 52 finds some support in Harris v. State, 96 Ala. 24, 11 So. 255 (1891) and in Wilkerson v. State, 140 Ala. 165, 37 So. 265 (1904), but fault has been found in the charge in its failure to predicate the contrariety between the testimony of the witness on the trial and his testimony on preliminary trial upon a “material” fact or matter. Charge 53 finds support in Reynolds v. State, 196 Ala. 586, 72 So. 20 (1916) and Roberts v. State, Ala.Cr.App., 346 So.2d 473 (1977). In Roberts, the court found that a similar charge included “a distinct principle of law” that “was not covered in the Court’s oral charge.” We think that charge 53 was substantially covered by defendant’s given charge No. 46:

“I charge you, members of the jury, that if any of the State’s witnesses have exhibited malice against the Defendant or anger, or have testified contradictory statements, and thereby satisfied the Jury that they have not testified truly and are not worthy of belief, and the Jury think their testimony on those accounts should be discarded, they may discard it altogether.”

We think that probably given charge 46 is more favorable to defendant than refused No. 53. Somewhat related also are defendant’s given charges 49 and 50:

No. 49: “If any witness testifying has been impeached, then the Jury may disregard his testimony, unless his testimony be corroborated by other witnesses.”
No. 50: “I charge you, members of the jury, that if you believe from the evidence that any witness willfully swore falsely on this trial or a former trial, then you may disregard and give no weight to any portion of the testimony testified to on this trial.”

We find no error in the refusal to give either charge 52 or charge 53.

Defendant’s refused charge No. 61 states:

“I charge you, members of the jury, that the burden of proof is upon the State, and it is the duty of the State to show beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendant is guilty, before the defendant is required to introduce any evidence in his favor or to explain any circumstances surrounding him, and if there is a reasonable doubt of this Defendant’s guilt, then you must acquit the Defendant.”

In Fetner v. State, 22 Ala.App. 128, 113 So. 467 (1927) and Ball v. State, 51 Ala.App. 270, 284 So.2d 296 (1973), it was held that it was reversible error to refuse such a charge. However, in the instant case refused charge No. 61 was substantially covered by defendant’s given charge 32:

“The Court charges the Jury that a person charged with a felony should not be convicted unless the evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt. No matter how strong may be the circumstances, they do not come to the full measure of proof which the law requires if they can be reasonably reconciled with the theory that the defendant is innocent.”

This is especially true when charge 32 is considered together with the court’s oral charge, which in general sets forth comprehensively the law as to the requirement of proof beyond a reasonable doubt and to a moral certainty of defendant’s guilt before he can be lawfully convicted, particularly the following:

“... And before a conviction can be had the State must satisfy each and every member of the jury of the Defendant’s guilt, and unless the State satisfies you of the Defendant’s guilt beyond a reasonable doubt and to a moral certainty, then he is entitled to an acquittal.”

Appellant has presented with marked ability and resourcefulness some close issues. They were not easy to decide, but we are convinced after a consideration of all of them and after a search of the record as a whole that no error prejudicial to the defendant occurred and that the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BARRON, Judge.

license: Public Domain

text:
    Percy Leo DOBARD v. STATE.
    2 Div. 305.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.

      David A. Reid, Livingston, for appellant.
    Charles A. Graddick, Atty. Gen., and Edward E. Carnes, Asst. Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BARRON, Judge.

Appellant was convicted under § 13A-5-31(a)(5), Code 1975, for the murder of a police officer while on duty. After a separate hearing on aggravating and mitigating circumstances, the jury fixed his punishment at death. Subsequently, the trial court weighed the aggravating and mitigating circumstances pursuant to § 13A-5-33, Code 1975, and sentenced appellant to death. The eourt issued both oral and written findings of fact from the trial and the sentence hearing which enumerated the aggravating circumstances the court found sufficient to support the sentence of death. This appeal followed.

Some time between 5:00 a.m. and 6:00 a.m. on Saturday, June 21, 1980, O’Jim’s Restaurant in Eutaw, Alabama was robbed by appellant and a female companion, Jeanette Kennedy. After Kennedy left the restaurant, appellant pulled a pistol on waitress Corethea Hitton and demanded “give me all your money.” Ms. Hitton complied with the demand. Appellant and Kennedy speedily fled, and Ms. Hitton called the Eutaw Police.

About 35 miles from the scene of the robbery, appellant, who was driving the getaway vehicle, was spotted by Livingston University Police Officer Wayne Sudduth, who was assisting in the search for the suspects. Officer Sudduth was aware that the robbery had occurred and apparently had knowledge of the description of the getaway vehicle from a police radio broadcast.

Officer Sudduth informed Livingston Police Officer Raymond Burne that he was stopping the vehicle. Officer Sudduth, who was dressed in a blue uniform, was driving a marked police car.

With his flashing lights on, Officer Sud-duth stopped the vehicle which contained appellant and Kennedy. He approached the driver’s side of the car and asked for appellant’s driver’s license. Appellant opened the car door and reached around as if to get his billfold. However, according to the testimony of witness Kennedy, rather than removing his billfold he grabbed a .38 caliber revolver and shot Officer Sudduth, killing him. The evidence indicated that Officer Sudduth did not have his service revolver drawn, as it was found in his holster with the safety strap in place.

After the shooting of Officer Sudduth, appellant and Kennedy sped away, only to wreck their vehicle on the western edge of Livingston. Both exited the car and walked up the road where they hid in some bushes until a truck driven by Mr. Johnny Mathews approached. Mathews saw appellant come from under a bridge and act as if he were injured. Mathews stated that appellant was yelling for help and he stopped his truck on the side of the road. When appellant came within close proximity of the truck, he pulled the revolver, pointed it at Mathew’s face and demanded the keys to the truck. After a brief period of time, during which Sumter County Deputy Sheriff Ralph Rainey drove past appellant, Kennedy, and Mathews, appellant secured the keys and fled with Kennedy.

Deputy Rainey reported what he had seen to the Livingston Police Department and was informed that he had observed the restaurant robbery suspects. Deputy Rai-ney set a roadblock and while moving his patrol car to allow a vehicle to pass, appellant drove Mathew’s truck past him. A high speed chase ensued involving several vehicles.

Another roadblock had been set by York city police officers about halfway between Livingston and York. As the truck approached, the officers at the roadblock began to fire at it. Immediately thereafter, the truck wrecked and overturned. Subsequently, Deputy Rainey saw appellant throw a gun out of the truck cab. Deputy Rainey immediately retrieved it. Appellant and Kennedy were taken into custody, transported to a local hospital for examination, and afterwards taken to Sumter County Jail.

Several issues are presented for review.

I

Appellant contends that the jury’s exposure to the media coverage of the assassination attempt on the life of the President of the United States, which attempt occurred during the trial of the case, was prejudicial to appellant’s due process and equal protection guarantees and his right to a fair trial. Appellant urges that the trial court erred to a reversal in denying the motion for a new trial on this ground.

The issue, of course, is not whether the exposure to the media coverage improperly influenced any member of the jury, but whether it might have unduly affected any juror to act outside the evidence in arriving at a verdict. Seekers v. State, 35 Ala.App. 40, 44 So.2d 628 (1949).

The guilt phase of the trial was begun on March 30, 1981, and was concluded March 31, 1981. The sentencing phase was held on the succeeding day, April 1, 1981. The presidential assassination attempt occurred on March 30, 1981, the first day of the trial.

At the conclusion of the sentencing phase and after the jury had returned its verdict, appellant requested a polling of the jury to determine whether the jurors had been permitted to watch television coverage of the assassination attempt or to read newspaper articles about it. The trial court denied the jury polling request but stated for the record that the jurors had seen the television reports.

Appellant relies heavily on Seekers, supra, in furtherance of his position. Seekers is readily distinguished from this case. In Seekers, the jury, during an overnight recess, attended a rather gory movie; there were a number of coincidental similarities between the plot of that movie and the evidence presented in the case the jury was then hearing. One of the affidavits in the motion for a new trial in Seekers alluded to the similarities as follows:

“... The portrayals of death and suffering in the picture were such that it would have been most difficult for the jurors not to associate the scenes in the show with the testimony in the case. The two trials in which the defendants were convicted in the show were quite vividly portrayed and the verdicts rendered against the defendants could hardly have failed to impress the minds of the jurors to the prejudice of the defendant.”

In the case at bar, there are no indications of any similarities between matters in the news reports and any of the evidence being considered by the jury.

The news reports obviously contained no communication, information, opinion, or other discussion of any facet of appellant’s trial which would tend to affect the ultimate decision in the instant case.

We cannot say that the jury’s viewing television news reports of the attempted assassination of the President might have unduly influenced any member of the jury to act outside the scope of the evidence presented in this trial. Consequently, we find no error in the trial court’s ruling in that regard.

II

Appellant argued in his motion for a new trial that the State impermissibly used its peremptory strikes in an unconstitutional, racially biased manner to remove blacks from the venire.

Appellant is black and the victim was white. Appellant’s jury consisted of seven blacks and five whites.

At the hearing on the motion for a new trial, appellant offered proof that the State used its peremptory strikes to remove twenty blacks, ranging in age from 21 to 64 years, from the venire. Appellant also identified the struck jury by name, race, and age. No evidence on this issue was offered by the State.

Appellant relies heavily on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824,13 L.Ed.2d 759, reh. den. 381 U.S. 921, 85 S.Ct. 1528,14 L.Ed.2d 442 (1965). The thrust of appellant’s objection appears to focus on the exclusion of “young blacks” from petit juries.

The record is void of any evidence of systematic striking of blacks or “young blacks” from petit juries or of a history of purposeful discrimination against a particular race. Swain, at 380 U.S. 221, at 85 S.Ct. 836, provided, “[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws.” Therefore, we do not think appellant has carried the burden of proof which Swain requires.

Additionally, this court recently decided the peremptory challenge issue, contrary to appellant’s argument, in Allen v. State, 414 So.2d 163 (Ala.Cr.App.1982).

The trial court’s ruling on this issue was correct.

Ill

Appellant contends that he was unconstitutionally deprived of an impartial jury in that (a) two members of the venire were improperly excused for cause due to their opposition to capital punishment, and (b) two of the State’s jury voir dire questions were improper. We do not agree.

Appellant urges that two of the prospective jurors, Daisy Belle Cannon and Sim McCasson, were improperly excused for cause by the trial court in violation of the standard set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, reh. den. 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 185 (1968).

As to prospective juror Cannon, the record reveals the following (R. 256-257):

“MR. WATKINS [Prosecutor]: Yes, sir. Ladies and Gentlemen, the Judge has already qualified you on capital punishment, but I would like to go into it a little bit further to make sure that we understand each other.
“This case that we are going to try is one of the cases enumerated in the statute that says that a person may receive death if you find him guilty of a certain offense; and, I want to know if we all understand each other, that each of you are telling me individually, that if you believe beyond a reasonable doubt and to a moral certainty the necessary elements to return a verdict, which would mean that this person would be put to death by electrocution, that you would be able to do that? Is that what everybody is telling me? Is there anybody that would not be able to do that?
“PJ: I don’t believe I would.
“THE COURT: All right; would you please stand up and give your name, please ma’am?
“PJ CANNON: Daisy Cannon. And, I just don’t believe I could send anyone to the electric chair.
“MR. WATKINS [Prosecutor]: Mrs. Cannon, are you telling the Court that no matter what the evidence is; that if you believe beyond a reasonable doubt and to a moral certainty that this person did it; that if we follow the statute to show that we can prove all the necessary elements, that you would not be able to vote guilty if it meant that he would be sent to death?
“PJ CANNON: I don’t think I would.”

And as to prospective juror McCasson, the record shows (R. 279-280):

“THE COURT: In this case, the State of Alabama, if the defendant is found guilty of the charge in the indictment, has indicated they plan to ask for the death penalty if the defendant is found guilty beyond a reasonable doubt as charged. Now, is there anyone on the jury panel that has a fixed opinion against capital punishment? In other words, does anyone have a strong feeling, a fixed opinion, against capital punishment? If so, I would like to see a show of hands.
“Yes sir. Mr. McCasson. You have an opinion against capital punishment?
“PJ McCASSON: Yes, sir.
“THE COURT: And, you do not feel that you would be able to return a verdict sentencing someone to the electric chair if they were found guilty beyond a reasonable doubt and to a moral certainty of the crime of the charges; is that correct?
“PJ McCASSON: My opinion about it, I think it should be some other way without taking a life for a life.
“THE COURT: All right; I understand and I respect that, sir. I am just trying to ascertain each one of your opinions. So, it is your view that you have a fixed opinion against capital punishment?
“PJ McCASSON: Yes sir.
“THE COURT: No matter what the evidence would be in a case you would not be able to vote for capital punishment?
“PJ McCASSON: Yes, sir.”

We deem it emphatically clear from the record that both potential jurors were so opposed to capital punishment that they would not be able to vote for the death penalty no matter what the evidence showed. Prospective juror Cannon indicated that she would not be able to return a guilty verdict if it meant the imposition of the deaths penalty. Prospective juror McCasson indicated that he had a fixed opinion against capital punishment regardless of what the evidence might be. As we perceive Witherspoon, a challenge for cause is permitted in both instances. The court in Witherspoon, supra, n. 21, said:

“We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt....” (Emphasis in original)

We hold that the record shows that the two prospective jurors in question were properly excused for valid reasons.

Appellant complains that two of the State’s jury voir dire questions were tantamount to eliciting a promise from each prospective juror to impose the death penalty if appellant was found guilty. The State contends that, though possibly inartfully phrased, the questions were designed to determine whether any venire member’s opposition to capital punishment was such that it would prevent him or her from returning a guilty verdict in the face of adequate proof of the necessary elements of the offense.

The first question to which appellant takes exception is the voir dire question to which prospective juror Cannon responded, hereinabove discussed.

The question essentially is: Are each of you telling me that if you believe beyond a reasonable doubt and to a moral certainty that the necessary elements have been proven, you would return a verdict which would put this person to death by electrocution?

It is obvious the question relates to the guilt stage verdict because it refers to “the necessary elements” in its text. Certainly, prospective juror Cannon interpreted the question as relating to the guilt phase because of the manner in which she responded. The trial court, in a follow-up question referred to “the necessary elements,” thus indicating reference to the guilt phase of the trial. Additionally, when the question is viewed in context with the entire voir dire on this matter, the phrase “would be able” refers to the ability to keep an open mind on the subject, as opposed to having a fixed opinion which would require an acquittal, regardless of the evidence, in order to avoid the death penalty. Wither-spoon, supra.

Appellant’s counsel did not take exception to the question at the time, nor did he seek to determine, through clarifying questions, how the venire may have interpreted the question. We note, however, that counsel was permitted to and did examine the venire members extensively, including determination of religious preferences and political affiliations.

The remaining voir dire question appears as follows (R. 280-281):

“MR. WATKINS [Prosecutor]: Ladies and Gentlemen, the Judge has already told you that this is a case wherein there may Le a verdict of death by electrocution; and, all of you have said that you believe in capital punishment, except for this one gentleman. Now, I want you to search your conscience and let’s really talk about this thing before we go too far. It is my understanding from you that we all understand that the State has the burden of proving to you beyond a reasonable doubt and to a moral certainty, that this man is guilty as charged. I’m asking you to go one step further in assuming that the State of Alabama proves to you beyond a reasonable doubt and to a moral certainty that this man is guilty of the capital offense as charged, will all of you promise to me that you will be about [sic; able?] to return a verdict that will place him in the electric chair and cause his death? Everybody, search your conscience now and answer it honestly because that’s all we want to know is what you are thinking and how you feel. Would each of you tell me that if I prove to you, the State proves to you, beyond a reasonable doubt and to a moral certainty that this man is guilty as charged of a capital offense, that you will be able to vote for the death penalty? (No Response.)
“MR. WATKINS [Prosecutor]: I take it by your silence that you all will.
“Thank you. That’s all.” (Emphasis added.)

Appellant objected to the manner in which the question was framed, pointing out that silence was an affirmative response which would preclude a guilty verdict on a lesser included offense. Appellant moved for a mistrial, which the trial court denied.

While the framing of the question and its lack of clarity is subject to criticism, we find that the inquiry was not a solicitation of a promise to return a capital punishment verdict. When considered in context, this question again sought a determination of whether any venire member would be unable to vote for the death penalty due to a fixed opinion on the issue of capital punishment. As above, we perceive that this inquiry is well within the framework set out in Witherspoon, supra. Again, it is noted that appellant’s objection went only to the form of the question. No attempt was made by appellant to clarify the intended purpose of the question in his voir dire examination. This adds credence to the theory that the interpretation of the purpose of the question at the time by appellant significantly differs from the argument he presently advances.

The trial court’s denial of the motion for a mistrial does not constitute error.

IV

Appellant argues that the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He concedes that the prevailing view is that the death penalty is not per se cruel and unusual punishment, but urges that the application of it in this case is constitutionally prohibited. We disagree with this contention.

We have reviewed this case in detail in keeping with our Supreme Court’s mandate in Beck v. State, 396 So.2d 645 (Ala.1980), which is as follows:

“To insure that sentences of death will not be arbitrarily and capriciously imposed, we hold that both the Court of Criminal Appeals and this Court should examine all death sentences in light of the standards and procedure approved in Gregg [Gregg v. Ga., 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ]. Each death sentence should be reviewed to ascertain whether the crime was in fact one properly punishable by death, whether similar crimes throughout the state are being punished capitally , and whether the sentence of death is appropriate in relation to the particular defendant. In making this final determination,’ the courts should examine the penalty imposed upon the defendant in relation to that imposed upon his accomplices, if any.”

The offense with which appellant was charged and convicted is unquestionably a capital offense under the provisions of § 13A-5-31(a)(5), Code 1975. We find that the evidence was sufficient to meet the degree of proof required to sustain a conviction under that code section.

In reviewing the death sentence determined by the jury, the trial court found two aggravating circumstances:

1. The capital felony was committed for the purpose of avoiding or preventing a lawful arrest.
2. The capital felony was committed while the defendant was engaged in flight after committing a robbery.

Appellant contends that the first aggravating circumstance essentially duplicates the offense charged in the indictment and, therefore, may not be considered an aggravating circumstance in this case, citing Keller v. State, 380 So.2d 926 (Ala.Crim.App.1979), cert. denied, 380 So.2d 938 (Ala.1980). The rule in Keller, to the effect that the aggravating circumstance charged in the indictment cannot be used as both the criminal charge and the circumstance aggravating that charge, has been tacitly overruled in Kyzer v. State, 399 So.2d 330 (Ala.1981), and Beck, supra.

However, in the case before us, the enumerated aggravating circumstance of avoiding or preventing a lawful arrest is not an integral element of the basic aggravating circumstance alleged in the indictment. Therefore, the rule in Keller, even if it were still intact, would have no application here.

As to the remaining aggravating circumstance enumerated in the trial court’s order, appellant contends the State failed to prove he was in fact in flight after committing a robbery.

The appellant testified at the sentencing hearing before the trial judge; he did not testify before the jury at either the guilt phase or sentencing phase of the trial. At the sentencing hearing, he admitted having committed the robbery of O’Jim’s Restaurant, driving the car from the robbery scene and being stopped by an officer in a police car approximately 30 miles from the robbery scene. He testified that he was exceeding the speed limit at the time, and that he was not sure why he was being stopped by the officer. Other evidence indicated the victim stopped appellant within approximately 30 minutes of the robbery. Appellant further testified that he did not shoot the police officer, but that it was Jeanette Kennedy, his girlfriend and companion, who did the shooting. Kennedy testified during the guilt phase of the trial that appellant robbed O’Jim’s Restaurant and that he drove from the scene “real fast.” Kennedy further testified that appellant shot the police officer immediately after the police officer approached the driver’s side of the car and asked to see appellant’s driver’s license.

We find that the evidence is sufficient to justify beyond a reasonable doubt the trial court’s findings regarding the “in flight after committing a robbery” aggravating circumstance.

The remaining considerations are whether similar crimes throughout the state are being punished capitally, and whether the sentence of death is appropriate in relation to this particular defendant (appellant). We answer both questions in the affirmative.

The death penalty is appropriate punishment for the murder of a police officer, as in this case. The death penalty has been consistently applied in similar cases. The death penalty was imposed by the Geneva County Circuit Court for the murder of a sheriff in Cade v. State, 375 So.2d 802 (Ala.Cr.App.), aff’d., 375 So.2d 828 (Ala.1979), vacated and remanded on other grounds, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133 (1980), rev’d. on other grounds, 405 So.2d 699 (Ala.1981). Also, the death penalty was imposed by the Coffee County Circuit Court for the murder of a sheriff in Magwood v. State, 426 So.2d 918 (Ala.Cr.App.1982). See also Daniel v. State [Ms. 4 Div. 987, April 20, 1982] (Ala. Cr.App.1982).

Appellant argues that Jeanette Kennedy, appellant’s girlfriend and companion, was an accomplice and that her sentence of 20 years (on her guilty plea) is so substantially out of line with appellant’s death sentence as to require reversal under the provisions of Beck. We do not agree with appellant’s position. Appellant argues in brief that it was Kennedy, not appellant, who “gunned down Officer Sudduth,” and that she got only 20 years for the murder of a police officer. The jury and trial court judge heard the testimony and cross-examination of Kennedy and were in a position to observe her demeanor and form conclusions as to her credibility; the trial court judge heard the testimony of appellant (at the sentencing hearing) and he was in the best position to judge appellant’s credibility. From the conclusions reached by the jury and the trial court judge, which we find to be adequately substantiated by the evidence, appellant shot the police officer. The jury and trial court judge were well within their prerogatives in so finding. It is noted from the testimony that it was appellant who initially procured the gun, who pulled the gun in the restaurant robbery, who had the gun during the taking of a pickup truck after he wrecked his vehicle, and who threw the gun out of the wrecked pickup truck after it was wrecked. In summary, all of the factors in this case considered, appellant’s death sentence is not excessive when compared to the 20-year sentence received by his girlfriend and companion, Jeanette Kennedy.

As to the mitigating circumstances, the “Order of Court Sentencing Defendant to Death” states:

“The court finds that the following mitigating circumstance enumerated in Section 13-11-7, Code of Alabama 1975, was present but insufficient to outweigh the aggravating circumstances:
“The Defendant has no significant history of prior criminal activity.”

The appellant contends that the above order reveals that the trial court considered only the statutory mitigating circumstances, to the exclusion of any nonstatutory mitigating circumstances, in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Beck, supra. Further, appellant contends that the evidence of nonstatutory mitigating circumstances was not weighed by the jury or the trial court.

Beck provides that the trial court must permit a defendant to introduce any matter relating to mitigating circumstances at the sentencing phase of the trial. Lockett declared unconstitutional an Ohio statute which precluded the sentencing judge from considering non-statutory mitigating factors, such as character, age, lack of specific intent to cause death, etc.

The trial court allowed appellant to present testimony at the jury sentencing hearing from several friends and relatives concerning appellant’s background, life, and character. The jury sentencing hearing was held on April 1, 1981, the day after conclusion of the guilt phase trial.

In his instructions to the jury, the trial judge outlined the statutory mitigating circumstances, and further instructed the jury:

“So those are the mitigating circumstances that the law of Alabama provides. In‘addition to mitigating circumstances that I just read to you, you may also consider as a mitigating circumstance any aspect of the defendant’s character, his life, and any of the circumstances of the capital offense which tend to indicate that the defendant should not be sentenced to death. Mitigating circumstance does not have to be included on the list that I have read to you in order for you to consider it. Mitigating circumstances considered by you should be based on the evidence that you have heard. And if you are satisfied from the evidence presented during the guilt stage of the trial or during the sentencing hearing, that a mitigating circumstance exists in this case then you should consider it. Mitigating circumstance need not be proven to you — need merely be proven to your satisfaction. It does not have to be proven beyond a reasonable doubt for you to consider it. Only an aggravating circumstance has to be proven beyond a reasonable doubt and that burden is on the State.”

The record is void of any reasons to suspect that the jury either disregarded the testimony of appellant’s witnesses, or ignored the trial court’s instructions.

A crucial assumption underlying the jury system is that juries will follow the instructions given them by the trial judge. Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). This leads to the inescapable conclusion that the jury, acting within the bounds of its prerogative, unanimously found that the aggravating circumstances outweighed the statutory and non-statutory mitigating circumstances.

The failure of the trial judge to specifically refer to the non-statutory mitigating factors does not evidence his failure or refusal to consider them in the sentencing of appellant. The trial court’s failure to specifically mention non-statutory mitigating circumstances may be interpreted merely as a conclusion on the judge’s part that non-statutory mitigating circumstances were insufficient to outweigh the aggravating circumstances. The trial judge had previously presided over the guilt phase of the trial and the jury sentencing hearing; during the latter hearing he had instructed the jury that they “may consider as a mitigating circumstance any aspect of the defendant’s character, his life, and any of the circumstances of the capital offense which tend to indicate that the defendant should not be sentenced to death,” and admitted evidence of the same for the jury’s and his consideration. Clearly, there is nothing in the record to indicate that the judge or jury failed to consider all evidence of any possible mitigating circumstances presented to them.

For these reasons, we reject appellant’s contentions regarding non-statutory mitigating circumstances.

V

Appellant attacks the validity of the indictment under which he was tried as being insufficient as a matter of law and as being totally and fatally defective. A motion to dismiss and/or demurrer to the indictment, which was overruled, raised these grounds prior to arraignment. Appellant urges that a capital offense indictment must allege the aggravating circumstances relied on to elevate a non-capital offense to a capital offense, citing § 13A-5-31(a), Code 1975.

The charging part of the indictment is as follows:

“Percy Leo Dobard ... did, unlawfully and with malice aforethought intentionally cause the death of another person, Carlton Wayne Sudduth, by shooting him with a pistol; while the said Carlton Wayne Sudduth was a police officer on duty as a Livingston University Security Police Officer under the provisions of Title 16-53-12, Code of Alabama, 1975 in violation of 13A-5-31 of the Code of Alabama against the peace and dignity of the State of Alabama.”
Section 13A-5-31(a), Code 1975, provides:
“(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses:
“(1) Kidnapping for ransom or attempts thereof, when the victim is intentionally killed by the defendant;
“(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant;
“(3) Rape when the victim is intentionally killed by the defendant; carnal knowledge of a girl under 12 years of age, or abuse of such girl in an attempt to have carnal knowledge, when the victim is intentionally killed by the defendant;
“(4) Nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed by the defendant;
“(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard;
“(6) Any murder committed while the defendant is under sentence of life imprisonment;
“(7) Murder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to contract or for hire;
“(8) Indecent molestation of, or an attempt to indecently molest, a child under the age of 16 years, when the child victim is intentionally killed by the defendant;
“(9) Willful setting off or exploding dynamite or other explosive under circumstances now punishable by sections 13A-7 — 21 through 13A-7-23 or 13A-7 — 41 through 13A-7-43, when a person is intentionally killed by the defendant because of said explosion;
“(10) Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts;
“(11) Murder in the first degree where the victim is a public official or public figure and the murder stems from or is caused by or related to his official position, acts or capacity;
“(12) Murder in the first degree committed while the defendant is engaged or participating in the act of unlawfully assuming control of any aircraft by use of threats or force with intent to obtain any valuable consideration for the release of said aircraft or any passenger or crewman thereon, or to direct the route or movement of said aircraft, or otherwise exert control over said aircraft;
“(13) Any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime; or
“(14) Murder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness.”

Also germane to the issue here presented is § 13A-5-35, Code 1975, which provides: “Aggravating circumstances shall be the following:

“(1) The capital felony was committed by a person under sentence of imprisonment;
“(2) The defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person;
“(3) The defendant knowingly created a great risk of death to many persons;
“(4) The capital felony was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, burglary or kidnapping for ransom;
“(5) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
“(6) The capital felony was committed for pecuniary gain;
“(7) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws; or
“(8) The capital felony was especially heinous, atrocious or cruel. (Acts 1975, No. 213, § 6; Code 1975, § 13-11-6.)”

The thrust of appellant’s position is that “aggravation is such a necessary and elementary part of the Death Penalty Act that the defect of failing to accuse a defendant of aggravation in an indictment which also accuses him of one of the offenses enumerated in Title 13A, Section 13-5-31, Code, renders such an indictment void.” We do not agree.

Substantial confusion has been caused by the two separate but related concepts of “aggravation” and “aggravating circumstances” contained in the 1975 Act. However, we are convinced that the § 13A-5-35 aggravating circumstances need not be averred in the indictment.

Section 13A-5-31 contains the definitional aggravation required to elevate a non-capital offense. Beck, supra; Kyzer, supra. In the present case, the non-capital offense of murder of an individual was elevated to a capital offense because the individual was intentionally killed while he was a police officer on duty. This analogy is in keeping with the holding in Kyzer, supra, at 338, as follows:

“If a defendant is convicted of ‘murder in the first degree wherein two or more human beings are intentionally killed,’ and if the jury, after a hearing conducted in accordance with the principles set out in Beck, fixes that penalty at death, the trial judge, if convinced that the ‘aggravation’ averred in the indictment ‘that two or more human beings were intentionally killed by the defendant by one or a series of acts’ outweighs the mitigating circumstances, may impose a sentence of death by setting forth in writing, as required by § 13-11-4, his findings, even though the ‘aggravating circumstance’ is not ‘enumerated in § 13-11-6.’ The jury could make the same finding at its sentence hearing mandated by Beck.”

In the present case, the aggravation averred in the indictment is found in the phrase “while the said Carlton Wayne Sudduth was a police officer on duty.” The aggravating circumstances enumerated in § 13A-5-35 are relevant only to the issue of whether a defendant should be given the death penalty after having been convicted of a capital offense described in § 13A-5-■31. Consequently, we find no error in the trial court’s overruling of appellant’s motion to dismiss and/or demurrer to the indictment.

VI

Lastly, appellant contends that the State, in its closing argument to the jury in the guilt phase of the trial, impermissibly commented on his failure to testify. Appellant made no objection to the questioned comment and, thus, the possible need for curative instructions was not called to the trial court’s attention.

The State urges that the failure of appellant to interpose a timely objection constituted a waiver, which does not preserve the matter for review by the court. We disagree, because the “plain error” rule applies and we are obligated to search the record for prejudicial error.

The portion of the State’s closing argument of which appellant complains is (R. 563):

“There is no evidence before you that could give you any reason why you could think that Jeanette Kennedy shot Office [sic] Sudduth as opposed to Mr. Dobard. The evidence is very clear. As far as I can see, and it is undisputed, that Percy Dobard shot and killed Officer Wayne Sudduth.”

Where there has been a direct comment by the State on the defendant’s failure to testify, and the trial court has not acted promptly to cure such improper comment, there is no question that a conviction must be reversed because it violates constitutional rights. However, indirect references to the defendant’s failure to testify present questions more difficult to resolve. While an accused’s constitutional guarantees must be preserved inviolate, the State’s prerogative to fairly comment on the evidence should not be unduly restricted.

The testimony of witness Kennedy was to the effect that appellant reached to get his driver’s license and, instead, drew his gun and fired the fatal shots. Upon the conclusion of the State’s case, appellant rested without offering any evidence. Our search of the record fails to disclose any evidence disputing witness Kennedy’s testimony that appellant shot and killed Officer Wayne Sudduth.

Where the State’s evidence does stand uncontradicted, the prosecutor does have a right to point this out to the jury. Beecher v. State, 294 Ala. 674,320 So.2d 727 (1975). Does the manner in which it was pointed out rise to the level of being an indirect comment on the defendant’s failure to testify? We think not.

It is undisputed that the only people who could testify to the events surrounding the shooting of Officer Sudduth were appellant and witness Kennedy. We perceive, however, that Kennedy may have testified in appellant’s defense, or may have lessened the harshness of her testimony to appellant’s benefit had appellant called her as his witness. At the time of appellant’s trial Kennedy had pleaded guilty to “these crimes” and had been sentenced to 20 years in the penitentiary. Since she had already been sentenced at the time of her testimony, it could hardly be said that she was a captive witness for the State. There was nothing which could have prevented appellant from calling Kennedy as his witness in an effort to have her testify to the “truth” as he remembered the facts.

Physical evidence such as the paths of the bullets and the relative physical positions of appellant and witness Kennedy at the instant of the shooting may have provided proof disputing to some extent the State’s evidence.

We hold that the State’s closing argument comment could not have been understood by the jury as a reference to the failure of appellant to testify, and was not, therefore, violative of appellant’s constitutional right against self-incrimination.

This case is distinguishable from Beecher, supra, in that the comment in Beecher was: “No one took the stand to deny it”; and in this case the comment was: “As far as I can see, and it is undisputed, that Percy Dobard shot and killed Officer Wayne Sud-duth.” It is obvious from the comparison that in Beecher the comment directly called attention to lack of testimony from “the stand,” whereas in the case before us no reference was made to lack of testimony.

The State’s comment in this case is properly within the virtual identification doctrine, which was quoted with approval by our Supreme Court in Ex parte Yarber, 375 So.2d 1231 (Ala.1979), at page 1234, as follows:

“This doctrine requires that any covert statement be construed against the defendant. ‘In other words, no matter what the jury might infer, there must virtually be a direct identification of the defendant alone as the individual who has not become a witness.’ King v. State, 45 Ala.App. 348, 352, 230 So.2d 538, 541 (1970).”

Wé hold that the State’s comment is not violative of the limitation placed upon comments dealing with the “uncontradicted,” “undisputed,” or “undenied” nature of the State’s evidence, and does not run afoul of the doctrine expressed in Yarber, supra.

We conclude, therefore, that the State’s closing comments in this case did not violate appellant’s constitutional rights.

We have searched the record for error, as required by law, and have found no error harmful to the substantial rights of appellant. The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

STATE OF ALABAMA, Plaintiff Vs. PERCY LEO DOBARD, Defendant * IN THE CIRCUIT COURT OF * MARENGO COUNTY, ALABAMA * CASE NUMBER: CC-81-058

ORDER OF COURT SENTENCING DEFENDANT TO DEATH

This being the day set for the sentence hearing required by Section 13-11-3, Code of Alabama 1975, concerning the issue of whether or not the Court will sentence the Defendant to death or life imprisonment without parole; and the Defendant, his Attorney and the District Attorney were present in Court; and the Court after hearing the relevant evidence relating to aggravating or mitigating circumstances enumerated in Sections 13-11-6 and 13-11-7, Code of Alabama 1975, is of the opinion that the punishment of death previously fixed by the jury should be imposed on the Defendant.

The Court finds that the following aggravating circumstances enumerated in Section 13-11-6, Code of Alabama 1975, were present in this case, and these circumstances are sufficient to support the sentence of death:

1) The capital felony was committed while the Defendant was engaged in flight after committing a robbery.
2) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest.

The Court finds that the following mitigating circumstance enumerated in Section 13-11-7, Code of Alabama 1975, was present but insufficient to outweigh the aggravating circumstances:

The Defendant has no significant history of prior criminal activity.

The Court further finds that the Defendant was the person who intentionally fired the shot that killed the victim. The Court finds that none of the other enumerated mitigating circumstances were present in this case.

It is, therefore, the judgment and opinion of the Court that it is now proper to pronounce judgment and sentence the Defendant to death. The Defendant, after being asked if he has anything further to say why sentence of law should not be now imposed upon him, says nothing.

It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Defendant, Percy Leo Dobard, is sentenced to death by electrocution as provided by the laws of the State of Alabama. The execution of the sentence of death is suspended, pending the automatic appeal required by law. It is further ORDERED that David Reid, Livingston, Alabama, is appointed to represent the Defendant on appeal and an appeal to the Court of Criminal Appeals of Alabama is entered as required by law.

It is further ORDERED that the Defendant, Percy Leo Dobard, remain in custody during the pendency of the appeal, and that the Sheriff of Sumter County, Alabama, forthwith transport the Defendant to the William C. Holman unit of the prison system and deliver him to the custody of the Warden of William C. Holman unit of the prison system at Atmore, Alabama.

All DONE and ORDERED this, the 13th day of April, 1981.

/s/ Claud D. Neilson

CLAUD D. NEILSON CIRCUIT JUDGE

      . The trial judge’s order setting the penalty is hereby attached as Appendix A.