text:
    John Charles RICHARDSON v. STATE.
    7 Div. 14.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      H. Dean Buttram, Jr., Centre, and C. Ronald Patton, Rome, Ga., for appellant.
    Charles A. Graddick, Atty. Gen. and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   ROBERT M. HILL, Sr., Retired Circuit Judge.

Following grand jury indictment and jury verdict, the appellant was adjudged guilty of the offense of buying, receiving or concealing stolen property. Ala.Code § 13A-8-16 (1975). He was sentenced to four years’ imprisonment.

On the night of November 18, 1979, a Mrs. Ballance parked her car in front of her apartment in Marietta, Georgia. The next morning it was gone. She never saw it again. It was a silver colored 1978 Trans Am Pontiac with T-top and red interior and a C.B. radio antenna mounted on the trunk. Mrs. Ballance was given a copy of the purchase contract by the seller company at the time of purchase of her car. The contract recited the car’s identification number as 2W87Z8N107125.

At about 7 p.m. on December 10, 1979, Danny Smith, an investigator with the District Attorney’s office, who had had more than eight years prior experience as an auto mechanic, and Deputy Sheriff Tom Miller went to the residence of a Mr. Stimpson and with Stimpson’s permission they looked in two barns belonging to Stimpson located behind his residence. Inside one of the barns Smith found the rear half of a silver colored T-top Pontiac Trans Am, red interi- or, which had a base mount for a C.B. radio antenna located on the trunk lid. The car had been cut in two. The portion found by Smith, which he denominated a “rear clip,” consisted of the “top portion of the vehicle from the top back.” The firewall, the complete front-end and the interior had been removed from the vehicle. About ten feet in front of the “rear clip, ” they found a 400 cubic inch V-8 engine steel-bolted together to an automatic transmission lying in the back of a military jeep. The cross-member support adapted to hold the transmission in place had been cut with a cutting torch. Smith also found there two doors to a Mack truck, parts to and ownership papers to an Oldsmobile Cutlass, and body and mechanical parts to other motor vehicles.

Investigator Smith copied the serial number Z8N107125 from the transmission. He was unable to get a number from the engine that night and later that night the engine and the transmission were removed from the Stimpson barn by appellant.

The transmission numbers and letters copied by Smith did not constitute the complete identification number; that is, they were only a derivative number, a partial sequence included in the entire vehicle identification numbers located elsewhere on the car.

Sergeant A.H. Clifton of the Alabama Bureau of Investigation, Vehicle Theft Unit, an officer of twenty-five years’ experience, testified that the vehicle identification numbering contained on the purchase. contract supplied to Mrs. Ballance, that is, 2W87Z8N107125, indicated: the “2,” a General Motors Pontiac; the “W,” the car line series, a Firebird; the “87,” the body style, a Trans Am; the “Z,” a 400 cubic inch engine or motor; the “8,” the year model, a 1978; the “N” designated the Norwood, Ohio, assembly plant, and the digits “107125” constituted the sequential production numbers given the car on the Norwood plant’s assembly line.

It was Clifton’s testimony that no other vehicle assembled at the Norwood plant would be given the sequential production number 107125.

About two weeks before Investigator Smith examined the auto parts in the Stimpson barn, appellant, a friend of Stimpson for thirty years, told Stimpson that he needed a dry place to work on a car. Stimpson gave him permission to use the barns. On the night Officer Smith examined the auto parts in the barn, he secured a wrecker service which hauled in for im-poundment the “rear clip” of the Pontiac Trans Am and some parts to other automobiles found there. But, because the wrecker was not equipped to haul the motor and transmission, they were left at the barn on the assurance from Mr. Stimpson that he would see to it that they would remain there until the following morning. Later that night the appellant came to Stimpson’s house, showed him a certificate of title and license plate, and told him he was going to get the motor and transmission because they were his property. The next morning those two items were no longer in the barn. During the night the Trans Am “rear clip” was taken in for impoundment, someone doused it with gasoline and burned it.

Appellant’s defense was that he and one Jimmy Jordan bought the “rear clip,” motor and transmission from one Curtis Kelly’s junkyard. He produced an Alabama Certificate of Title. That certificate covered a 1978 silver Pontiac Firebird, which had been financed through Allstate Insurance Company to one Jimmy Jordan. It had identification number 2W87Z8N105385. That car had been wrecked and was in the Kelly junkyard. Thus, it is seen that the last four digits of the sequential production number were not the same as those identifying the Ballance car.

The National Crime Information Center certified that the Ballance car was a stolen one.

Appellant contends the trial court was in error in admitting into evidence the duplicate of the purchase contract supplied to Mrs. Ballance by the seller company at the time she bought her car. This contention is without merit. It is clear that the contract was not a business record within the purview of § 12-21-43, Code of Alabama 1975. If the conduct of the parties to a bilaterial writing shows that the parties intended that each of the two or more duplicates should be the equal of each other, then each of such duplicates is an original. C. Gamble, McElroy’s Alabama Evidence (3d ed. 1977); Robinson v. State, 38 Ala. App. 315, 82 So.2d 815 (1955), and cases cited. Further, even if the document introduced had not been a duplicate original, it was admissible as secondary evidence since the original was in possession of the seller company in Georgia, a fact admitted by appellant. Absence of the original of the purchase agreement from the jurisdiction of the court is ground for the admission of secondary evidence. C. Gamble, McElroy’s Alabama Evidence § 217.01(1) (3d ed. 1977); Waters v. Mines, 260 Ala. 652, 72 So.2d 69 (1954).

The appellant next contends the State failed to prove all the necessary elements of the crime charged. Ala.Code § 13A-8-16 (1975), provides:

“A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.”

There was ample evidence from the State in proof of all elements of the offense for submission of the cause to the jury, and appellant’s motion for a directed verdict and judgment of acquittal was properly denied.

The judgment rendered on the jury’s verdict is affirmed.

The foregoing opinion was prepared by the Honorable ROBERT M. HILL, Sr., Retired Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Robin Cecil WALLACE v. STATE.
    7 Div. 23.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      Ralph L. Brooks, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of trafficking in cannabis in violation of Code of Alabama § 20-2-80, which provides in pertinent part:

“Except as authorized in Chapter 2, Title 20:
“(1) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as ‘trafficking in cannabis.’ If the quantity of cannabis involved:
“a. Is in excess of one kilo or 2.2 pounds but less than 2,000 pounds, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $25,000.00.”

The jury assessed a fine of $25,000.00, and the court fixed his punishment at imprisonment for six years and sentenced him accordingly.

No issue is presented as to the sufficiency of the evidence to support a finding that defendant was guilty of possession of cannabis, and we see no reasonable basis for such a contention. The cannabis was found in a room rented by appellant in the Mini-Warehouse and Storage Company in Calhoun County. We proceed immediately to a consideration of the issues raised by appellant.

I.

The search of the room rented by defendant at the warehouse that resulted in the seizure of the cannabis involved was not a warrantless search. A search warrant had been obtained. Participating in the execution of the warrant was Mr. Charles Winfrey, an investigator for the office of the District Attorney of Calhoun County. Appellant does not question the validity of the warrant, but he challenges the execution of the warrant by reason of its having been executed without the presence of “a Sheriff, Deputy Sheriff or Constable of Calhoun County . .. during the execution of the warrant,” in violation of Code of Alabama 1925, § 15-5-7. However, in making such challenge appellant limits it to his contention pursuant to the second issue presented by appellant, which we now consider.

II.

Appellant urges that the act that created the office or position that Mr. Winfrey occupied at the time of the execution of the search warrant, Alabama Acts 1980, No. 185, is violative of Alabama Constitution 1901, Article IV, § 45, which provides, with some exceptions not involved here, that “Each law shall contain but one subject, which shall be clearly expressed in its title, ...” Appellant recognizes that this identical question was decided, adversely to appellant’s contention herein, in Dickerson v. State, per Judge Tyson, Ala.Cr.App., 414 So.2d 998 (1982), but he requests that this Court “re-examine the position taken in Dickerson.” Appellant presents no good reason why we should not adhere to what was held in Dickerson, supra, in which the particular issue was given penetrating and comprehensive consideration. We again hold, as we held in Dickerson, that Act No. 80-185 is not violative of Section 45 of the Constitution of Alabama 1901.

III.

By the third issue presented by appellant, he contends that Code of Alabama 1975, § 20-2-80, is violative of the Constitution of Alabama 1901, Art. Ill, § 43, the Separation of Powers Provision of the Alabama Constitution, “since it delegates to the prosecuting attorney the powers to control the sustension or reduction of sentences.” A similar, if not precisely the same, contention was made in Dickerson and disposed of adversely to appellant. Appellant’s argument herein adds nothing new to the position taken by appellant in Dickerson. We do not agree with appellant’s contention pursuant to the third issue presented by him.

IV.

Appellant’s fourth issue advances the claim that the “Alabama Trafficking Statute violates the Separation of Powers provision, Constitution of Alabama 1901, Section 43, ‘since the maximum range must be set by the judicial branch not the legislative branch.’ ” Appellant’s brief argument as to this issue is not convincing. We must hold against him as to this issue also.

V.

Appellant challenges the action of the trial court “in allowing the State’s expert to testify as to the total weight of a substance when the undisputed evidence revealed the substance contained both controlled and uncontrolled substances.” He relies for support as to this contention upon Purifoy v. State, Fla., 359 So.2d 446 (1978). In the cited case, there was an appeal from a felony conviction for the possession of “more than five grams of cannabis, in violation of Section 893.13(l)(e) Florida Statutes (1975).” The total weight of the plant material that contained prohibited cannabis was 7.05 grams. The legal point involved was whether the burden was upon the State to show that the weight of the prohibited cannabis was in excess of five grams or, on the other hand, whether the burden was upon the defendant to show that it was not in excess of five grams. In that case, the total weight was less than one and one-half times the weight required to constitute the offense charged. In the instant case, the total weight of the plant material was 18,-592 grams or 40.67 pounds, almost nineteen times the weight required for the offense.

During the testimony of the expert witness, a crime laboratory analyst, as to the composition of the plant material seized, there was a thorough exploration of the component parts of the plant material that was seized and examined bearing directly upon Code of Alabama 1975, § 20-2-2(15), which defines marijuana as follows:

“All parts of the plant Cannabis sativa L, whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such, term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination.”

In charging the jury, the trial court made it clear that defendant would not be guilty of trafficking in cannabis unless the jury was convinced beyond a reasonable doubt by the evidence that more than 2.2 pounds of marijuana, exclusive of the portions of the marijuana plant expressly excluded in § 20-2-2(15), was in the possession of the defendant.

In our opinion, it would have been impracticable for the “controlled” portions of the plant material and the uncontrolled portions of the plant material to have been separately weighed. The total weight of the plant material, although not absolutely controlling, was competent, relevant, and material as to the question of the weight of the controlled substance involved.

VI.

Appellant’s sixth and last issue is thus stated:

“May the State meet its burden or proof in a trafficking charge requiring possession of more than 2.2 pounds, or one kilogram of cannabis without proving the weight of the alleged cannabis? Sand storm [Sandstrom] v. Montana, 442 U.S. 99 [510], 99 S.Ct. 2450 [61 L.Ed.2d 39].”

Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), was a ease involving the statutory offense of “deliberate homicide.” We find nothing therein that supports the position advanced by appellant in his sixth issue. In our opinion, the State met the burden of proof that was upon it to show that the cannabis contained in the plant material seized weighed more than 2.2 pounds.

We conclude by stating that we resolve all issues presented in favor of appellee 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.

AFFIRMED.

All the Judges concur.


text:
    Mitchell Lee MINOR, alias v. STATE.
    7 Div. 29.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.

      James A. Mitchell, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   NEWTON B. POWELL, Retired Circuit Judge.

The appellant, Mitchell Lee Minor, also known as Omar Shariff Rahman and also known as James Cunningham, was convicted in the Circuit Court of Talladega County for the offense of first degree robbery, and he was sentenced under the Habitual Felony Offender Act to imprisonment in the penitentiary for life without the benefit of parole. The robbery is alleged to have occurred on January 26, 1982, in the City of Sylacauga. It involved a jewelry store known as Griffin’s Jewelry Store, and it is alleged that in the process of the robbery the appellant used force against Donald Ru-nyan, who is shown to have been the manager of the store. After the conviction of the appellant, the court set a sentencing hearing for another date, at which time the court received evidence of prior convictions of other felonies, one of which occurred prior to the enactment of the Habitual Felony Offender Act of this State.

Carrie Lou Machen was employed at Griffin’s Jewelry Store on January 25,1982, the day before the alleged robbery. She testified that a man came into the store and asked to see some ladies’ engagement rings. Mrs. Machen showed the man some rings and then Donald Runyan, the manager of the store, showed the rings to the man while Mrs. Machen waited on another customer. Mrs. Machen identified the defendant as being this man. A Mrs. McNeal, Mrs. Machen’s sister, who was also an employee at Griffin’s Jewelry Store at the time in question, testified that she saw the defendant return to the jewelry store the morning of January 26. He came in and told Donald Runyan that he had come back to look at those diamonds which he had viewed the day before. Mr. Runyan showed the defendant the rings, and about that time Tony Boris came into the store, and the witness, Mrs. McNeal, went to the front to assist another customer. The customer who came in told Mrs. McNeal that he was looking for an engagement ring for his fiancee. Mrs. McNeal showed him some rings and had a conversation with him. About that time, Mrs. McNeal heard a loud voice at the back say, “This is it,” and she heard two gunshots. Mrs. McNeal saw blood streaming from Donald Runyan’s face immediately after this commotion. She exclaimed, “Oh, my God we are being robbed. Get down.” The customer replied, “Yeah, you’re being robbed. Get the diamonds on the counter.” The clerk began to get the diamonds out of the counter and the man came around and helped place the jewelry in a nylon satchel which he brought with him. She activated the silent alarm with her foot. The man started to open several counters and Mrs. McNeal told him not to do so, because the alarm would go off.

Another witness, Tony Boris, testified that he was in the jewelry store around 10:30 a.m. on January 26, 1982; that Mr. Runyan was helping the defendant when the witness heard a gunshot and upon looking up saw that Mr. Runyan’s face was covered with blood. He also saw the customer waving a gun at him, and that “customer” forced him and the bookkeeper into a small storage room. The man told them to stay in the room for fifteen minutes. Mr. Boris identified the defendant as this customer who forced him into the storage room. Mr. Boris observed the defendant for five minutes in the store. He was very well dressed and well clothed. The defendant was leaning on a small brown attache case on the counter at one time. The defendant was in Griffin’s Jewelry Store when Mrs. Machen returned to work from a trip which she had made earlier to a bank. When she came in Donald Runyan had his hand over his face and he told her not to get excited and to put her purse and the bank bag down and to come to the back of the store where he was. When she went to the back of the store the appellant was there and had a gun pointed at her. The appellant forced the employees of the store into a backroom and told them not to come out and that if they did it would be “too bad.” The appellant went to the front of the store and told Mrs. McNeal to give him her rings, which she did. He put them in his pocket. The other customer then came to the front of the store and said, “It’s the police. Get out of here.” This man ran out the front door. Mrs. Machen, Mrs. McNeal, and Donald Runyan identified the appellant as the person who committed the acts along with the other man at the front of the store who has not been identified. The appellant was also identified by Donald Runyan as the person in the back of the store with him and to whom he was showing some jewelry and as being the man who had looked at the jewelry the day before. He also identified the appellant as pulling a gun suddenly while viewing some of the jewelry and stating, “Okay ... this is it.” The appellant was also identified as the person who forced Runyan to give him the diamonds and money from the store safe. Jewelry and money in value of more than $100,000 was taken. The operator of a pawn shop in Enterprise, Alabama, identified one of the rings which was offered into evidence as being a ring which she purchased from the appellant, and this ring was identified as a ring taken from this, store at the time of the robbery. The appellant was also identified by a policeman who answered the emergency alarm as being the person whom he saw coming out of the jewelry store in question carrying a briefcase when he answered the emergency alarm at the store. The policeman stated that the appellant turned and re-entered the store, and that he did not see him again on this occasion.

The appellant made a motion to suppress the in-court identification of the appellant made by Carrie Lou Machen. The trial court heard extensive evidence outside the hearing of the jury and overruled the motion of the appellant. He also made a motion to suppress the statements made by the appellant to Captain T.A. Howell on the ground that the totality of the circumstances showed such statements to be involuntary. This motion was also overruled after the court heard evidence outside the hearing of the jury; the appellant also objected to being sentenced under the Habitual Felony Offender Act, both on the ground that this act is unconstitutional as it was applied to him, and also on the ground that the judgment entry did not show that the appellant was represented by an attorney in the prior proceedings leading to convictions which were introduced at the sentencing hearing.

As to the claim of the appellant that the in-court identification of the appellant made by the witness, Carrie Lou Machen, at the trial of the case, the appellant argues that the totality of the circumstances shows that the statements of the witness, Machen, were manifestly subjective. The* evidence shows that this witness had not identified the defendant until the night before the trial of the case. She had stated previously that she was too scared to give a description of the appellant or the person who had committed the offense at the time in question. She was present at the preliminary hearing of the defendant in this case and saw the defendant in a group of persons. Her sister had stated to her that, “He is sitting over there,” and she then recognized the defendant in the group. She looked at several pictures of people, including pictures of the defendant, on the night before the trial, and she recognized the defendant from these pictures.

The Supreme Court of the United States in the case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), discusses and condemns identification of defendants in the trial of cases if they are made as a result of suggestive procedures. This rule is recognized in the case of Williamson v. State, 384 So.2d 1224 (Ala.Cr.App.1980). The factors to be considered when such question is presented with reference to identification as a test of the validity of the identification are set out in this case. These factors involve, in short, the opportunity of the victim to view the assailant at the time of the crime, the victim’s degree of attention given to the defendant at the time, the accuracy of the victim’s prior description, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time between the confrontation and the crime. A review of the evidence in this case, and applying these factors, leads us to the conclusion that there is nothing present in this case which would be sufficient to disallow the evidence of the identification of the accused in this case to go to the jury. It is true that the witness did not give a prior description of the defendant, but this is not sufficient in the opinion of this court to eliminate the testimony of this witness. Reliability of the testimony of the witness in the identification process is the “linchpin” in determining the admissibility of identification testimony. Weaver v. State, 350 So.2d 734 (Ala.Cr.App.1977). There is nothing in the record to indicate to us that the identification made by this witness is so unreliable that it should not have been presented to the jury.

It is insisted by the appellant that the identification of the appellant by Mrs. Ma-chen at the trial of the case amounted to a counselless line-up. We do not agree with this contention.

The witness was in the audience at the preliminary hearing. The appellant was seated with a group in another area. No one representing the State asked the witness to identify the defendant. From the evidence it appears that only the usual procedure which occurs at a preliminary hearing was followed. The witness did not participate in the preliminary hearing. Whatever occurred between the witness and anyone else at the hearing was a private conversation. We do not think that this is a “line-up” contemplated by the courts in the cases which lay down the rules to be followed for the protection of rights of the accused. Marks v. State, 424 So.2d 1342 (Ala.Cr.App.1982).

It is further contended by the appellant that the trial court erred in its denial of the motion of the appellant to suppress statements of the appellant made to Captain T.A. Howell for the reason that the totality of the circumstances made such statements involuntary.

The test to be applied in determining whether or not an alleged confession is voluntary involves, like the test in determining the validity of identifications, the totality of the circumstances. The entire circumstances must be examined and the court must determine from those circumstances whether or not the confession was voluntarily made. Obviously, if the court determines that they were not voluntarily made, considering the totality of the circumstances, they must be excluded. See Crawford v. State, 377 So.2d 145 (Ala.Cr.App.1979). In this case, Captain Howell advised the defendant of his constitutional rights from a “Miranda card,” which the officer carried with him. Captain Howell asked the appellant whether he understood his rights and he answered that he did. There is no evidence that he was threatened or coerced or abused in any manner. The appellant told Captain Howell that he would make the statement. The appellant was taking “Tylenol # 3” because of a gunshot wound in his arm; his right arm was in a sling. He had been arrested at the hospital and had been taken to jail after release from the hospital. He was not questioned at the hospital. Captain Howell did not ask Minor to sign a waiver form; his right arm was in a sling. This could have interfered with his signing a waiver.

The true test of determining whether an extrajudicial confession is voluntary is whether the defendant’s will was overborne at the time he confessed, making the confession the product of irrational intellect and not of a free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

The appellant was taking an over-the-counter drug, but it appears that he was coherent and he understood his right to remain silent at the time he spoke to Captain Howell. There is no evidence that the appellant was incapacitated beyond a minor injury; medical authorities at the hospital had released the appellant from the hospital at the time the alleged confession was made. Confessions need not be in writing, nor is it necessary for an accused person to sign a waiver of his rights in order to make the statements of the accused admissible in the form of a confession. Alexander v. State, 370 So.2d 330 (Ala.Crim.App.), writ denied, 370 So.2d 332 (Ala.1979). The court in this case heard extensive voir dire examination of the defendant. The attending circumstances affirmatively disclosed that the statements to Captain Howell were voluntarily made. The duty of determining the voluntariness of a confession is within the sound discretion of the trial court. Crawford, supra. The findings of the trial court as to the voluntariness of a confession, following a hearing held outside the presence of the jury, will not be disturbed on appeal unless contrary to the great weight of the evidence and manifestly wrong. Rush v. State, 397 So.2d 195 (Ala.Cr.App.), writ denied, Ex parte Rush, 397 So.2d 197 (Ala.1981). We are of the opinion that the trial court did not err in admitting the statements of the appellant to Captain Howell into evidence.

We now consider the objections raised by the appellant to the Habitual Felony Offender Statute of this State. Ala. Code § 13A-5-9 (1975). At the trial of this case there was no question as to the law governing the constitutionality of this statute. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981); even for convictions prior to the statute; Williams v. State, 393 So.2d 492 (Ala.Cr.App.1981); Smith v. State, 409 So.2d 455 (Ala.Cr.App.1981). Since there is no evidence in the record to indicate that the sentencing statute was applied to the appellant in a discriminatory way, the contentions of the appellant seeking to undermine this statute on constitutional grounds are unfounded under the law in effect at the time of the trial of this case. See cases cited above. We must determine, however, whether the sentence meets the standards of the most recent decision of the United States Supreme Court on this subject.

Pending this appeal, the United States Supreme Court decided the case of Solem v. Helm, - U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In that case the Court held that the sentence in any case must be proportionate to the crime committed, and if the sentence is not so proportionate it violates the accused’s rights under the Eighth Amendment to the United States Constitution. Guidelines are laid down for the trial court to follow in applying the rule of proportionality in imposing sentences. These guidelines include the gravity of the offense, sentences imposed in this jurisdiction on other offenders for more serious crimes, the harshness of the sentence, and others. The Court determined that the pri- or convictions of Helm were relatively minor and the offense for which he was convicted was relatively minor, being a worthless check charge involving $100. The ordinary maximum punishment for this offense would have been five years’ imprisonment and a $5000 fine. The prior convictions in that case were three convictions for third degree burglary, one for obtaining money under false pretenses, one for grand larceny, and a third conviction for driving a vehicle while intoxicated. The Court declared the sentence to be disproportionate to the offense for which it was imposed. This sentence of life imprisonment without parole was said to violate the appellant’s Eighth Amendment rights, and the judgment of the trial court was nullified.

In the instant case, the charge for which the defendant was convicted is first degree robbery in which more than $100,000 in money and property was taken; firearms were used, people were intimidated, and one person was violently struck or shot (the evidence is not clear on this point) and suffered much loss of blood. The prior convictions of the appellant in the case under consideration include another robbery, false impersonation and false pretense (two cases), and second degree forgery (two cases). Considering the sentence by the guidelines laid down by the United States Supreme Court in Helm, supra, we have an offender with a record of a former robbery, a crime of violence; he is convicted of another such offense involving much violence; he has four theft-type offenses in addition to the prior robbery as prior offenses. Measuring the sentence by the guidelines laid down in Helm, supra, the gravity of the offense is very high; the sentence imposed is not disproportionate to sentences imposed in this and other jurisdictions for such offenses after a prior conviction for the same type offense. We are of the opinion after measuring this sentence with these and other reasonable standards that the sentence is proportionate to the offense in the light of all of the circumstances of this case.

It is contended by the appellant that the court committed reversible error in admitting into evidence at the sentencing hearing evidence of prior convictions of the appellant in that the judgment entries of the prior convictions did not show that the appellant was represented by attorney at the time of the convictions. In addition to the records which were introduced into evidence, the evidence in the case at the sentencing hearing indicated clearly that the defendant was, in fact, represented by an attorney in each of the prior cases resulting in convictions on which the State bases the operation of the Habitual Felony Offender Statute. There does not appear to be any law which requires that the name of the attorney appear at any particular place in the record so long as it properly appears that the defendant on trial was represented by an attorney. We are of the opinion that the evidence is uncontradicted that the appellant was represented by an attorney in each of the cases made the basis for the operation of the Habitual Felony Offender Statute, and the evidence of the prior convictions was properly admitted into evidence.

We, therefore, hold that the trial court did not err in the trial of this case, and the judgment is affirmed.

The foregoing opinion was prepared by the Honorable NEWTON B. POWELL, Retired Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

AFFIRMED.

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


author: TYSON, Judge.

text:
    Robert N. HUBBARD, alias v. STATE of Alabama.
    7 Div. 142.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.

      George N. Sims, Jr., Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Robert N. Hubbard was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. The jury found the appellant guilty “as charged in the indictment” and the trial judge set sentence at life imprisonment in the penitentiary.

I

The appellant contends his confession was improperly admitted into evidence before the State established proof of the corpus delicti.

“The traditional rule in Alabama is that a defendant’s confession may not be admitted into evidence until proof of the corpus delicti has been established by evidence independent of the confession. The corpus delicti need not be established solely by direct evidence as circumstantial evidence may suffice. Gamble, McElroy’s Alabama Evidence, § 200.13 (3rd ed. 1977). Equally as established as the rule is an exception to it. That is, if a confession is inadmissible when offered because of failure of proof of the corpus delicti, the error is cured by subsequent proof of the corpus delicti. Cooley v. State, 233 Ala. 407, 171 So. 725 (1937); Floyd v. State, 82 Ala. 16, 2 So. 683 (1886).
“In Watters v. State, Ala.Cr.App., 369 So.2d 1262, 1271 (1978), reversed on other grounds, Ala. 369 So.2d 1272 (1979), we stated:
‘... inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti.

Tice v. State, 386 So.2d 1180 (Ala.Cr.App.1980).

In the case at bar, the victim, Judge Leonard, testified that on the morning of the robbery, while standing in his kitchen, he just blacked out. When he awoke, he was tied up in a closet and he had blood all over him. He further testified that several things were missing from his home including his billfold which contained approximately $500.00. His car was also missing.

Debra Goodwin, the appellant’s girlfriend, testified that the appellant and Edwin Shropshire came to her house on the morning of the robbery. The appellant told her he had been involved in a fight and he needed to wash the blood off his hands. He said a man had been badly hurt and that he had taken the man’s car.

The appellant led police to the location where he had left the stolen property, the car and the weapon he had used.

Latent fingerprints lifted from the crime scene were identified as those of the appellant’s accomplice, Edwin Shropshire.

We hold the corpus delicti was sufficiently established, independently of the appellant’s confession, either before or after its admission into evidence. Therefore, the appellant’s confession was properly admitted.

II

The appellant argues that Officer Rod Hanvey should not have been allowed to testify concerning an oral statement made by the appellant to Hanvey because it was not voluntarily made. He claims that Han-vey made certain statements to the appellant which amounted to promises which induced him to make his statement.

Hanvey was asked about those statements during cross-examination and his testimony was as follows:

“Q Did you tell him that you were a preacher?
“A Yes, sir.
“Q And you are of course a minister. Correct?
“A Yes, sir.
“Q Did you tell him you were any different from the rest of the policemen down there?
“A I don’t remember making that statement. No, sir.
“Q Okay. Did you tell him you would try to help him?
“A Do everything that I could to help him spiritually.
“Q Did you tell him spiritually, or did you just say, ‘I’ll do everything I can to help you’?
“A Well, he never did go into it. I told him it would be best if he just got the whole thing off his chest instead of just sitting there holding it in.
“Q Told him it would be best if he told you that?
“A It would be best if he would get his problems off of his chest instead of just sitting there holding that in. He was at the point of tears was the reason I said that.
“Q Okay, this was before he made the statement to you?
“A Correct.
“Q OKay. And you told him it would be best for him, and that you would try to help him.
“A He had kind of broke up was the reason I made that statement to him— emotionally.
“Q And you told him you would try to help him, and that it would be better if he would get it off his chest?
“A Spiritually, yes, sir. I didn’t say I would help him except spiritually.
“Q Did you tell him spiritually, ‘I’ll help you spiritually’?
“A Absolutely.
“Q But you said, ‘I’ll help you if you get it off your chest’?
“A I said, ‘I can help you spiritually. You need to just go ahead and get it off your chest’ ” (R. 126-128).

It is not necessary to analyze this issue in terms of whether there was a promise of a direct or collateral benefit because it is clear that the Alabama Supreme Court in Holt v. State, 372 So.2d 370 (Ala.1978) rendered the collateral benefit rule invalid.

According to the Supreme Court in Holt v. State, supra, the test we must now apply is whether undue influence was used to obtain the confession. As this court stated in O’Tinger v. State, 342 So.2d 1343 (Ala.Cr.App.1977):

“Any inducement of profit, benefit, or melioration held out, or any threat of violence, injury, increased rigor of confinement, or any other menace which can inspire alarm, dread, or slightest fear, is enough to render the confession inadmissible. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967).”

Furthermore,

“... [A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats nor violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.”

Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). Holt v. State, supra.

Therefore our inquiry must focus on whether the promise made by Hanvey induced the appellant to make the statement. In other words, would the appellant have made the statement if Hanvey had not indicated he could “help the appellant spiritually.”

It is very difficult to look into the mind of a person and determine how certain statements affected that person psychologically. It is next to impossible to say that a person’s free will was overborne by such statements unless the surrounding circumstances are examined.

Officer Hanvey testified that at 1:10 p.m. on November 24, 1982, he read the appellant his Miranda rights. The appellant stated he understood his rights and wished to make a statement. The appellant then made an oral statement to Hanvey which he related to the court during the trial. The statement was not reduced to writing because immediately after the appellant made the statement, he led the police to the location where he hid the property he had taken from Judge Leonard. A similar statement, made later to Officer Surrett, was reduced to writing and introduced into evidence.

Officer Hanvey stated that no promises, threats, hopes of reward or other inducements were made to the appellant in order to obtain his statement other than his statement that he wanted to help him spiritually.

We are of the view that Hanvey’s statement to the appellant did not exert any improper influence on the appellant’s free will, so as to render his confession involuntary. While such statement might potentially induce someone, in another context, to give a confession, we do here hold that it did not happen in the case at bar.

Of course, each such statement must be carefully examined as they arise in future cases. Here, the best evidence that Han-vey’s statement did not induce the appellant to confess comes from the appellant’s own mouth. When the appellant was asked during direct examination whether Hanvey had made any “promises or anything” to him, the appellant stated, No, sir, not at all.” (R., 103).

Therefore, from our examination, we hold the appellant’s statement was made “ ‘.. . freely, voluntarily, and without compulsion or inducement of any sort.’ ” Haynes v. State of Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963). The appellant’s statement was properly admitted into evidence.

Ill

The appellant’s contention that two guns were improperly admitted into evidence is without merit. The victim of the robbery, Judge Leonard, testified he owned these guns and they were missing from his home after the robbery. Furthermore, the appellant took the police to the location where he had left these guns. The trial judge correctly admitted the two guns at issue into evidence.

We have reviewed the entire record and hold there was sufficient evidence contained therein for the jury to conclude by fair inference, that the appellant was guilty, beyond a reasonable doubt, of robbery in the first degree. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1979), cert. denied 368 So.2d 877 (Ala.1979).

Therefore, the judgment of the trial court is due to be and is affirmed.

AFFIRMED.

All the Judges concur.

      . The collateral benefit rule provides that a confession will not be deemed involuntary if the confession is induced by a promise of a collateral benefit and there is no assurance of a benefit to the accused, with respect to the crime at issue. Holt v. State, supra.


author: BOWEN, Presiding Judge.

text:
    Kenneth ANDREWS v. STATE.
    1 Div. 481.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Sam Welch, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for burglary in the first degree. Sentence was fifteen years’ imprisonment.

The indictment charged that the defendant unlawfully entered or remained unlawfully in the victim’s dwelling with the intent to commit the crime of rape. On appeal, the defendant argues that the State’s evidence was insufficient to show that he had this specific intent.

Although no one single fact is determinative of this issue, the conjunction of each fact and all the circumstances renders the issue of the defendants intent one for the jury. Those facts are that the defendant entered the elderly victim’s house wearing only his undershorts; that the victim, when examined at the hospital shortly after the crime, had sustained very recent injuries to her vagina; and that the victim told the examining physician that her injuries were caused by an assault.

The question of intent “is a jury question to be decided from all the surrounding circumstances and evidence presented.” Hamilton v. State, 283 Ala. 540, 546, 219 So.2d 369 (1969), wherein the Supreme Court held that the jury had “more than ample evidence ... from which to determine that it was appellant’s intent to ravish, i.e., appellant’s unexplained presence in the boudoir of a married woman, without pants and shoes, and with his privates exposed, after 2:00 a.m. in the morning.”

“Intent, ‘being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ ” Cook v. State, 409 So.2d 965, 966 (Ala.Cr.App.1981), wherein there was insufficient evidence of intent to ravish where there was positive evidence of an intent to steal and an intent to murder but “no evidence that appellant got into bed with the victim, kissed her, removed her clothes, took off his clothes, touched her breasts or private parts, or even spoke to her.”

It is a fundamental principle that circumstantial evidence is entitled to the same weight as direct evidence. Davis v. State, 418 So.2d 959 (Ala.Cr.App.1982). Hence, the circumstantial evidence of the defendant’s intent to commit rape is compelling. A reasonable and common sense interpretation of the facts of this case requires that the defendant’s conviction be affirmed.

The trial judge properly submitted the case to the jury and the jury’s verdict of guilty is supported by the evidence. Under the principles of Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1978), this Court should not interfere with that verdict.

The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Levi SPEIGHT v. STATE.
    1 Div. 508.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    A1 Pennington of Pennington, McCleave & Patterson, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
   HUBERT TAYLOR, Judge.

Appellant was indicted by the February 1982, session of the Mobile Grand Jury of receiving stolen property in the second degree, namely, one shotgun, in violation of § 13A-8-18, Code of Alabama 1975. He was convicted by a jury on July 1, 1982, on receiving stolen property in the third degree (§ 13A-8-19). Appellant was sentenced to twélve months in the county jail. This appeal follows.

Appellant argues that the lower court committed reversible error in denying his motion to exclude based on the State’s failure to prove venue.

In the case sub judice, it is undisputed that the appellant received the shotgun in Prichard, which is located in Mobile County. This fact is sufficient proof on the issue of venue. Ex parte Watts, 435 So.2d 135 (Ala.1983). Appellant’s venue question is without merit.

Appellant next argues that the State’s evidence should have been excluded because of the failure to prove that the shotgun exceeded $100 in value.

Sections 13A-8-16 through 13A-8-19, Code of Alabama 1975, provide for three degrees of receiving stolen property. These three degrees, ranging from the least to the most severe, are classed either as a misdemeanor, a Class C felony, or a Class B felony, depending on the value of the property in question. It seems clear that the legislature intended to make value an essential element of each individual offense unless specifically stated otherwise, as is the case of pawn brokers.

The State’s position that value is not an element of the offense is without merit. In any event, the cases relied on by the State pertain to the offense of larceny.

In the case of Booker v. State, 151 Ala. 97, 44 So. 56 (1907), which dealt specifically with buying and receiving stolen property, the Supreme Court said, “There was no proof of value of the property.... Proof of value was ... necessary to a conviction in order to determine the punishment....” This court adopted the Supreme Court’s holding in Middleton v. State, 27 Ala.App. 564, 176 So. 613, 614 (1937), when, citing Booker, supra, it said, “Proof of value is necessary in a case of this kind.... ” In Sanders v. State, 56 Ala.App. 120, 319 So.2d 739, 740 (1975), this court said, “It is elemental in larceny [and in receiving] that the State prove (a) that the stolen property has value and (b) the value in monetary terms.” See also Deep v. State, 414 So.2d 141 (Ala.Cr.App.1982), and Lankford v. State, 396 So.2d 1099 (Ala.Cr.App.1981).

In the case sub judice, the owner of the shotgun testified that it was worth $100; there was no evidence that the value exceeded that amount. The trial judge instructed the jury on receiving stolen property both in the second and third degree. The jury found appellant guilty of the offense in the third degree.

A defendant under an indictment for receiving stolen property in the second degree may be convicted of receiving in the third degree if the value of the property stolen is not enough to make it subject to the higher degree. The appellant was not entitled to a favorable ruling on his motion to exclude the evidence since the evidence justified a finding of guilt in the lesser degree. Johnson v. State, 374 So.2d 417 (Ala.Crim.App.1979).

The judgment of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Johnny Lee HOLCOMBE v. STATE.
    3 Div. 801.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.

      Harold L. Wilson, Hayneville, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

The appellant, Johnny Lee Holcombe, was indicted for the offense of first degree robbery, in violation of § 13A-8-41, Code of Alabama 1975. After a jury trial, appellant was found guilty of robbery in the third degree and was sentenced to ten years’ imprisonment as a habitual offender.

On December 15,1982, between 12:00 and 12:30 p.m., Lee Marvin Reese drove by Ben’s Service Station on Highway 97 in Hayneville, Alabama, and waved to an old schoolmate who was standing outside the building. Mr. Reese testified that he recognized this person as appellant and stated that appellant returned his wave. Mr. Reese stated that appellant was wearing a pair of blue jeans, a blue jean jacket and a brown stocking cap when he observed him outside the store.

Dan Watson, an off-duty Alabama State Trooper, testified that he drove by the service station at about this same time. He, too, noticed an individual standing outside the store wearing jeans, light colored shoes, a “reddish colored garment on the top part of his body,” and a cap.

Billy Yelder, the robbery victim, testified that he was working at Ben’s Service Station on December 15, 1982. Mr. Yelder stated that while he was standing near some grocery shelves a black male wearing blue jeans, a plaid shirt, white tennis shoes and a stocking mask over his face ran into the store and put a knife to his back. The robber stated, “Give me the money.” Mr. Yelder stated that he gave his assailant paper currency consisting of one twenty dollar bill, two ten dollar bills, four five dollar bills, between twenty and thirty one dollar bills, and some food stamps.

Ray Brown testified that on the day of the robbery he was driving his car up to the service station around 12:00 noon. As he was driving up, a man wearing a mask, blue jeans, white tennis shoes, and a plaid shirt ran out of the store and almost ran into his car. Mr. Brown observed the direction in which the fleeing man ran.

Soon after the robbery, Officer Tony Hol-laday of the Alabama Department of Corrections arrived at the service station with two tracking dogs. After being shown the direction where the robber ran, the dogs picked up the robber’s scent and began “tracking” toward a race track that was located in the area. While following the dogs, the officers recovered a cap. However, due to the heavy rain that began to fall, the dogs lost their scent and the tracking was abandoned.

Lowndes County Sheriff John Hulett testified that, around 1:00 p.m. that same day, he went to appellant’s mother’s house located near the race track to question appellant about the robbery that had just taken place. Upon questioning, the appellant denied any involvement in the robbery or ever going to Ben’s Service Station on that particular day. Sheriff Hulett stated that appellant appeared to be “really nervous.” Sheriff Hulett stated that appellant, when asked whether he had changed clothes that day, told him that he had not. At the time of questioning, appellant was observed wearing brown pants and a “reddish plaid” shirt.

Appellant’s mother’s house and his girl friend’s house located nearby were subsequently searched. A pair of blue jeans that were wet and dirty around the cuffs was found underneath a mattress in his girl friend’s house. Money matching the denominations as that taken in the robbery was also recovered. No food stamps were found, however.

Rosa Lee Holcombe, appellant’s sister, testified that she saw appellant go into their mother’s house and change clothes around “12 something” on the day of the robbery. She stated that, before appellant went into the house, he was wearing blue jeans, white sneakers and a plaid shirt. Ms. Holcombe stated that her brother changed into brown pants, a plaid shirt and brown shoes. She further testified that appellant left their mother’s house with the clothes he had taken off.

Brenda Brown, a roommate of appellant’s girl friend, testified that the money found underneath the mattress belonged to her. She could not remember, though, how much money she kept under her mattress.

Appellant testified in his own behalf and denied any knowledge of the robbery. He admitted that the blue jeans found beneath the mattress at his girl friend’s house were his, but he stated that they had been there for two days and were not wet. Appellant also admitted pleading guilty to an unrelated robbery charge in 1980.

Appellant contends that the cap found during the tracking of the robber was improperly admitted into evidence since no chain of custody was shown at trial. We do not agree.

Officer Holladay testified that the cap was found as the dogs followed the robber’s scent. He stated that his assistant picked up the cap in his presence and handed it to one of the Sheriff’s officers at the scene.

Earl Hill, a Lowndes County jailer who was helping in the search, testified that he received the cap from Officer Holladay’s assistant. Mr. Hill stated that he put the cap in a bag and handed it to Sheriff Hu-lett.

Sheriff Hulett testified that he received the evidence from Mr. Hill. He stated that said evidence was in his care, custody and control from the time of receiving the evidence until he brought it to the trial. All witnesses in the chain of custody identified the cap at trial as the one they had handled.

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.”

Donner v. State, 409 So.2d 461 (Ala.Cr.App.1981). Based on the above facts, we find that a sufficient chain of custody for the cap was established, and, therefore the cap was properly admitted.

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.


text:
    Donald D. PHILLIPS v. STATE.
    4 Div. 121.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    V. Lee Pelfrey of Whigham & Pelfrey, Clayton, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted by the Barbour County Grand Jury for the offense of receiving stolen property in the first degree. After a jury trial, appellant was found guilty as charged and was sentenced to five years’ imprisonment.

Prior to trial, a motion to suppress hearing was held to determine whether the state had probable cause to arrest the appellant and whether stolen goods recovered from appellant’s person were illegally seized. Officer Carl Hagler of the Barbour County Sheriff’s Department testified at the hearing that, on November 24, 1981, he and Deputy Jack Knight received a telephone call to go to the Mount Andrew Community located near Clayton, Alabama, in Barbour County. The call was from one Allen Miller who had previously reported a burglary of his home. When he met Mr. Miller in Mount Andrew, Officer Hagler testified, Mr. Miller told him that he (Miller) had seen appellant in possession of certain items of jewelry that had been taken from his home in the earlier burglary of his house. Mr. Miller told Officer Hagler that appellant had even tried to sell him some of the items that had been taken from his home. Said items included a ring, a necklace and a pocketknife.

Officer Hagler testified that, upon receiving this information he and Deputy Knight proceeded to the home of Annie Mae Clark in an attempt to question appellant about the stolen goods. Upon reaching her house, the two officers remained in their patrol car and called out for appellant to come out of the house. Appellant came out of the house and got in the back seat of the patrol car. After advising appellant of his Miranda rights, the two officers proceeded to question appellant about the prior burglary of Allen Miller’s home. Appellant denied any knowledge of the burglary. Thereupon, Deputy Knight advised appellant that there was an outstanding capias warrant on appellant from Union Springs concerning traffic violations and contempt of court. The two officers, however, did not have the warrant in their immediate possession.

Officer Hagler stated that he told appellant not to get out of the car since he was under arrest. However, appellant got out of the car and began walking toward the house. After he was requested to get back in the car and refused to do so, a scuffle ensued. After struggling briefly, Deputy Knight was able to subdue appellant. Officer Hagler testified that he then patted appellant’s pants pockets in which he felt a knife. Officer Hagler stated that while he was reaching for the knife appellant again began to struggle. As he struggled, a pocketknife and items of jewelry fell out of his pocket onto the ground. Appellant was then taken to the Barbour County Jail and was searched. At the jail, appellant was also found to be wearing a necklace and bracelet that Mr. Miller later identified as part of the jewelry that had been stolen from his house.

Appellant contends that his warrantless arrest was unconstitutional since the sheriff’s officers lacked probable cause to effectuate his arrest. Appellant further argues that, since his arrest was unlawful, the subsequent search of his clothing which revealed stolen jewelry was also illegal.

As this court stated in Owen v. State, 418 So.2d 214, 220 (Ala.Cr.App.1982):

“An officer may arrest without a warrant when ‘a felony has been committed and he has reasonable cause to believe that the person arrested committed it.’ Section 15-10-3, Code of Alabama 1975. The rule of reasonable or probable cause is a ‘practical, nontechnical conception.’ Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):
“ ‘Probable cause exists where “the facts and circumstances within their (the arresting officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed....’ (Citations omitted.)
“ ‘In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed or was committing an offense.’ ”

The record firmly establishes that Mr. Miller had informed the sheriff’s office that he had observed appellant having in his possession various items that had previously been stolen from his house. Mr. Miller further testified that appellant had even attempted to sell some of the stolen articles to him.

In applying the above principles of law to the facts and circumstances in this case, we hold that the arresting officers had probable cause (or “reasonable cause” as that term is used in Alabama Code, Section 15-10-3(3) (1975)) to arrest appellant without a warrant. The warrantless search of appellant’s person after he had been taken into custody and the seizure of the jewelry were constitutionally permissible since said search and seizure were “incident to lawful arrest.” Richardson v. State, 376 So.2d 205 (Ala.Cr.App.1978), affirmed Ex parte Richardson, 376 So.2d 228 (Ala.1979).

The trial court properly denied appellant’s motions for a directed verdict, for a general affirmative charge, for a judgment notwithstanding the verdict, and new trial.

The current Alabama statute § 13A-8-16, Code of Alabama 1975, defines the crime of receiving stolen property as follows:

“(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner...
“(b) If a person:
“(2) Possesses goods or property which have been recently stolen...
this shall be prima facie evidence that he had the requisite knowledge or belief.”

Mr. Miller testified at trial that his home had been burglarized in early November 1981, wherein jewelry, a quilt, a stereo and a pocketknife had been taken. Evidence was presented showing that appellant was apprehended after a brief struggle on November 24, 1981, and had in his possession several items of jewelry and a pocketknife that Mr. Miller identified as belonging to him. No explanation was given for appellant’s possession of said property. After viewing the evidence in a light most favorable to the State, we find that there was sufficient evidence to support appellant’s conviction of receiving stolen property.

Appellant’s final contention is that the trial court committed reversible error when it failed to give his requested jury charges 1 through 16, inclusive. However, after careful review of the record, we find that this matter is not presented for our review since no objection or exception was made to their refusal. Laffity v. State, 423 So.2d 280 (Ala.Cr.App.1982), and cases cited therein.

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.


text:
    Robert Douglas BARNETT v. STATE.
    5 Div. 751.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Jack F. Saint, Auburn, for appellant.

      Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for the State.
   HARRIS, Judge.

The appellant, Robert Douglas Barnett, was convicted of third degree robbery and was sentenced under the Habitual Felony Offender Act to twenty years’ imprisonment.

The sole issue raised on appeal is appellant’s contention that the State failed to establish a prima facie case of third degree robbery.

The State presented evidence showing that, on July 15, 1982, at approximately 11:00 p.m., appellant and another companion entered the Kroger Supermarket in Opelika, Alabama. Bruce Rogers, a Kroger employee, was in an upstairs office and watched the appellant and his companion through a one-way glass mirror. Mr. Rogers observed the two black males who were in separate areas of the store but within sight of one another. After appellant nodded at his companion, the companion disappeared down one of the store aisles. Soon afterwards, appellant’s companion came out of the store pushing a shopping cart containing two bags of groceries. Appellant’s companion then walked past the cashiers and out the front door of the store. Appellant joined his partner as he went out of the door with the groceries in the shopping cart.

Mr. Rogers, along with Phillip Wilkerson, another Kroger employee, chased after the two men and yelled for them to stop. At this point, appellant and his companion were still pushing the grocery cart containing the two grocery bags. Upon hearing the shouts to stop, appellant picked up the groceries out of the cart and began to run. Mr. Rogers chased after appellant while Mr. Wilkerson chased after appellant’s partner. While running with the grocery bags, appellant tripped and fell to the ground. Mr. Rogers then caught up with appellant and the two began to struggle. As the two struggled, appellant threatened Mr. Rogers, stating, “Watch it, I have a knife.” Appellant was subsequently arrested. Thirty cartons of cigarettes were recovered from the dropped grocery bags.

Appellant contends that the State failed to establish a prima facie case of robbery because: (1) no threat or use of force to effectuate the unlawful taking of property of the Kroger Supermarket was shown; and (2) that, even if a threat of force was made, the victim was not shown in actual fear by any threat.

Appellant was tried and convicted of third degree robbery, in violation of § 13A-8-43, Code of Alabama (1975), which provides:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance of physical power of resistance; or
(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

“In the course of committing a theft” is defined in § 13A-8-40, Code of Alabama, 1975, as follows:

“(b) ‘In the course of committing a theft’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”

Further explanation of the law as it pertains to the facts in the present case is found in the commentary to §§ 13A-8-40 and 13A-8-43, Code, supra. There we find:

“The ... use or threat of force in escaping, broadens the scope of robbery. There should be no distinction between cases in which force is used to gain possession of another’s property and cases in which possession is gained and then force is used to retain possession ... The expansion, of course, is limited to threats and assaults to effect an immediate escape ...”

Evidence was presented at trial showing that appellant and his partner entered the Kroger Supermarket around 11:00 p.m. on July 15, 1982. The two then soon left the store with thirty cartons of cigarettes without paying for them. Immediately thereafter, a struggle ensued outside the grocery store between appellant and a Kroger employee during which appellant stated, “Watch it, I have a knife.”

After careful review of the testimony presented, we find that the State presented evidence from which the jury could reasonably infer that appellant used force or threats of force in an attempt to effectuate the theft of goods from Kroger Supermarket. We find no merit to appellant’s contention that no robbery was shown since the victim was not placed in actual fear of appellant’s threat to use force. Section 13A-8-43, supra, makes no mention of and does not require that the threat of force used to compel acquiescence to the taking of property actually place the victim in fear.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Vickerstaff v. State, 374 So.2d 443 (Ala.Cr.App.1979).

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.


text:
    Martha Franklin SCHULTZ v. STATE.
    2 Div. 325.
    Alabama Court of Criminal Appeals.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Sept. 2, 1983 Alabama Supreme Court 82-983 & 82-1025.

      Bill Kominos, Ariton, for appellant.

      Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   ON REHEARING

BOWEN, Presiding Judge.

This Court originally reversed defendant’s conviction for possession of marijuana, finding that the evidence introduced at trial was the product of an illegal seizure. We held that Dallas County Sheriff’s deputies Wayne Odom and Dale Maddox did not have adequate grounds for an investigatory stop of defendant’s vehicle based solely on their testimony of having seen the headlights of a car moving slowly down a dirt road separating two cotton fields at 10:30 p.m. Since the initial stopping of the vehicle was unreasonable, the officers had no authority to seize a manila folder, filled with what appeared to be marijuana, in plain view on the car seat.

I

On application for rehearing, the Attorney General filed a motion to supplement the record to incorporate a transcript of defendant’s preliminary hearing, which was not included in the record on appeal submitted to this Court. That motion is due to be granted because the record clearly shows that the trial judge considered the preliminary hearing transcript in making his determination of probable cause. At trial, defense counsel told the court that he was “willing to submit these motions (to suppress) to you (trial judge) on the transcript already prepared and let you decide on that basis.” The trial judge stated that he would “consider the transcript of the testimony taken at the preliminary hearing ... for purposes of this suppression motion.” The transcript was then marked “for identification.”

We have granted the application for rehearing and have withdrawn our original opinion because the additional evidence adduced at the preliminary hearing provides “specific and articulable facts” upon which to base a reasonable suspicion that the occupants of defendant’s vehicle had committed or were about to commit an offense. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

At the preliminary hearing, Deputy Odom testified as follows:

“A. We had a lot of complaints about night hunting around that area. We didn’t know if people were night hunting or what.
“Q. Did you suspect that they might be night hunters?
“A. Exactly what we thought to start with..
“Q. That’s exactly what you thought to start with?
“A. Yes.”

Odom also testified that the vehicle “was moving awfully slow. I mean it wouldn’t even register on the speedometer, it was that slow.”

In our judgment, the complaints of night hunting in the area, combined with the deputies’ observation of the car moving slowly through the fields with its headlights on, gave rise to more than an “inarticulate hunch” that something was amiss, see Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880, and established an “objective basis for suspecting (the defendant) of criminal activity”, see United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981), i.e., of hunting at night. See also Langley v. State, 383 So.2d 868, 869 (Ala.Cr.App.), cert. denied, 383 So.2d 873 (Ala.1980).

At least three Alabama statutes specifically prohibit hunting at night. See Alabama Code Sections 9-11-235; -242; -251 (1975). A violation of any of these sections constitutes a misdemeanor. Section 9-11-252. Hunting any protected game, except deer, at night can result in a fine of $250 to $500 and possible revocation of a hunting license for one year. Alabama Code Sections 9-11-235; -242. The penalty for hunting deer at night is a minimum $500 fine, mandatory revocation of hunting license, and imprisonment for up to ten days in the county jail. Alabama Code Section 9-11-252.

County sheriffs are, by statute, authorized to enforce the game and fish laws, specifically those provisions proscribing night hunting, and to seize any vehicle or hunting equipment used in such illegal activity. Alabama Code Section 9-11-252.-1(b) (1975). In addition, statutory authority for the type of investigatory detention approved in Terry v. Ohio, supra, is found in Section 15-5-30, Code of Alabama 1975.

“A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, . .. may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions.”

Although the defendant’s vehicle was in an open cotton field on private property three or four hundred yards from the highway, its headlights and its movement (the very things which, in connection with the night hunting complaints, made it suspicious) were clearly visible from the public roadway from which it was sighted by the deputies. Under these circumstances, the vehicle was in a public place within the meaning of Section 15-5-30. Compare Warren v. City of Auburn, 337 So.2d 1319 (Ala.1976) (the defendant drinking beer in yard of his apartment house was in a “public place”, for purposes of public intoxication ordinance, because he and his beer can could be observed from a public street); Lee v. State, 136 Ala. 31, 33 So. 894 (1903) (dice players forty yards from highway were in a “public place”, within the meaning of gaming statute, because their activities were visible to persons traveling the highway); and Henderson v. State, 59 Ala. 89 (1877) (gamblers in bushes on edge of field forty yards from road were in a “public place” because they were in view of a path used by schoolchildren); with Smith v. State, 23 Ala. 39 (1853) (hollow located 100-115 yards from main road and not visible from highway was not a “public place”); Taylor v. State, 22 Ala. 15 (1853) (field surrounded by forest one mile from highway not a “public place” because not visible from public roadway); and Bythwood v. State, 20 Ala. 47 (1852) (hollow in the woods 400 yards from highway and out of sight not a “public place”).

There can be no serious question that a misdemeanor such as a game and fish law violation is a “public offense” within the meaning of Section 15-5-30. Section 1-1-5, Code of Alabama 1975, defined a “public offense” as “an act or omission forbidden by law and punishable as provided in this Code.” Although that section was repealed by the new Criminal Code, 1977 Ala. Acts 812, No. 607, Section 9901 (January 1, 1980), misdemeanors have routinely been classified as “public offenses” in Alabama and other jurisdictions. See Starnes v. State, 30 Ala.App. 156, 2 So.2d 333 (1941); People v. Tuck, 142 Cal.Rptr. 362, 75 Cal. App.3d 639, 644 (1977); Smith v. Hubbard, 253 Minn. 215, 91 N.W.2d 756, 761 (1958).

In addition, although the question has not been addressed in Alabama, other jurisdictions have applied the same Fourth Amendment standards generally applicable to automobile searches to searches of vehicles involved in suspected game law violations. See United States v. Stricklin, 534 F.2d 1386 (10th Cir.), cert. denied, 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976); State v. Pearce, 318 So.2d 455 (Fla.Dist.Ct.App.1975); State v. Brumley, 95 Idaho 919, 523 P.2d 522 (1974); State v. Hillock, 384 A.2d 437 (Me.1978); Daugherty v. State, 40 Md. App. 535, 392 A.2d 1165 (Ct.Spec.App.1978); State v. Dickenson, 43 Or.App. 1023, 607 P.2d 754 (Ct.App.1979); State v. Odam, 40 Or.App. 551, 595 P.2d 1277 (Ct.App.1979), affirmed, 290 Or. 160, 619 P.2d 647 (1980); Gonzalez v. State, 588 S.W.2d 355 (Tex.Cr.App.1979).

In United States v. Stricklin, supra, a game and fish officer patrolling a thinly-populated ranch and recreation area at night saw a light on the horizon and later observed automobile headlights illuminating roadside areas. The Tenth Circuit Court of Appeals approved the detention of the vehicle on suspicion of night hunting and upheld the subsequent search which uncovered marijuana.

In State v. Hillock, supra, a game warden observed the defendant’s vehicle being driven on a little-used road at night in an area where deer were known to abound at a time when officers had heard complaints of night hunting in the area. The Supreme Court of Maine upheld the stop of the vehicle based on a Terry v. Ohio type state statute and observed the following:

“At the time appellants were stopped, Warden Ford had knowledge and could have articulated if he had been asked, that the area was one in which a crime was being committed by someone, i.e. night-hunting, and that the road was one little used for legitimate purposes after dark. As a result of this perfectly proper investigative stop, he observed the light and the gun in plain view.” 384 A.2d at 441. (Emphasis in original).

In our judgment, therefore, the deputies here had “specific and articulable facts”, Terry v. Ohio, supra, upon which to base their suspicions of night hunting. The vehicle stop was justified and the subsequent finding of marijuana was incident to the plain-view exception to the warrant requirement. See Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

II

The defendant contends that the court erred by denying her motion to produce a sample of the marijuana for independent testing and analysis.

However, the record reveals that the court ordered a sample of the material “to be delivered to a testing facility of defendant’s choice”, and directed her attorney to provide the court with the name of a laboratory. The court stated for the record that the defendant’s attorney had not been denied inspection of the evidence but was “free to look at it any time ... wherever it was.”

The record only supports a finding that the defendant did not avail herself of the opportunity to have the material tested. She cannot now be heard to complain that her rights have been violated. See Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).

III

The rule against joinder of felonies and misdemeanors in the same count of an indictment does not apply to an indictment under Section 20-2-70, Code of Alabama 1975, since the charged felony includes a misdemeanor by operation of law. Coleman v. State, 344 So.2d 1249, 1250 (Ala.Cr.App.1977). ■

IV

The defendant argues that the failure of any prospective juror to respond to the following voir dire question requires that the whole venire should have been stricken: “Would any of you acquit the defendant if the state failed to prove her guilty beyond a reasonable doubt?”

The trial court denied- the defendant’s motion to strike the venire, but immediately inquired of the prospective jurors:

“Do any of you have any doubt or any reservation that in serving as a juror that you would be able to follow the instructions that the Court would give you as to the law and the law as it applies in this case? Is there anyone of you that think you might have any problem with that whatsoever?
“(No response).”

The court’s charge on the State’s burden of proof, the presumption of defendant’s innocence, and the standard of reasonable doubt was detailed and comprehensive, and the defendant took no exception to it. Under these circumstances, overruling the motion to strike the venire was not harmful to defendant. A.R.A.P. 45.

V

At a bench conference prior to the introduction of evidence found in the defendant’s vehicle, the court cautioned the State to refrain from mentioning “(t)he bottle containing unknown crystal substance, the white powder, this white powder substance, white residue and a green suede coat and a clear bottle containing a blue crystal substance.” The court stated that “(n)one of those things would have anything to do with the charge in this case." Thereupon, the State elicited the following testimony from Deputy Wayne Odom:

“Q. Deputy Odom, what did you find in the trunk, please, sir?
“A. Several items were found. Some marijuana and scales. Plastic bags. A small piece of paper with handwritten weights and grams and ounces wrote on it.”
“Q. And where was that metal can found, please, sir?
“A. Between Mr. Wilson’s legs on the passenger side of the vehicle.”
“Q. And what is contained inside that can, please, sir, that fruit cake can?
“A. There’s a razor blade, a straight razor blade, some rolling papers.”

Counsel for defendant objected and moved for a mistrial on the grounds that the foregoing testimony introduced evidence of separate crimes, and was in violation of the trial court’s admonition not to elicit evidence pertaining to other drug charges. The trial court denied the motion for mistrial, but instructed the jury to exclude the testimony from its consideration and polled each juror individually to determine whether he could disregard it.

In our judgment, the testimony was admissible on the issue of possession of marijuana even though it may have pointed to other drug offenses. See Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975); Durden v. State, 394 So.2d 967 (Ala.Cr.App.1980), cert. quashed, 394 So.2d 977 (Ala.1981). Moreover, any error was cured by the action of the trial court.

VI

The defendant insists that her motion for new trial should have been granted because the record does not show that her given written charges were taken to the jury room.

Section 12-16-13, Code of Alabama 1975, requires that “(c)harges which are marked ‘given’ by the trial judge must be taken by the jury with them on retirement.... ” (Emphasis added). Here, the record reveals that immediately before the jury retired, the trial judge stated the following: “Okay, ladies and gentlemen, if you take these verdict forms and the exhibits the bailiff will carry you back to the jury room and you can begin your deliberations.”

Citing Pruett v. State, 408 So.2d 202 (Ala.Cr.App.1981), and Dalrymple v. State, 405 So.2d 725 (Ala.Cr.App.), cert. denied, 405 So.2d 728 (Ala.1981), for the proposition that a reversal is required when the record shows the given charges did not go to the jury room, the defendant claims that the record is “completely devoid of any evidence or indication that the jury took with them Defendant’s requested jury charges.”

In Pruett, the court told the jury to take the “verdict forms” with them and denied a request by the defendant to send the given charges to the jury room. In Dalrymple, the “exhibits” were the sole items on record as having accompanied the jury as they left for their deliberations, and we observed that “(i)t is undisputed that these charges were not with the jury during their deliberations.” 405 So.2d at 726. In both Pruett and Dalrymple, it was undisputed that the jury did not have the given charges in the jury room.

In contrast, the following exchange occurred during the hearing on defendant’s motion for a new trial:

“MR. KOMINOS (Defense Counsel): Judge, during the course of the trial the defendant submitted certain written jury charges to the Court, with a front cover, which I’ll ask the court reporter to mark as an exhibit.
“(Whereupon Defendant’s Exhibit No. 1 was marked for identification by the reporter.)
“MR. KOMINOS: Along with certain written requested charges. And those charges were not submitted to the jury to take back with them in the jury room during their deliberation. And on the authority of section 12-16-13 of the Alabama Code, we feel that it is error and move for a new trial.
“THE COURT: Why do you say they didn’t go back to the jury room?
“MR. KOMINOS: Judge, I was here and I saw all the exhibits going back there, and everything — the exhibits went back there but the jury charges did not go back to the jury room. And I represent that as an officer of this court.
“THE COURT: Well, of course — anything the State wants to say in reply?”
“MR. SULLIVAN (Assistant District Attorney): Judge, I was also here and everything I remember is that the jury charges were put in a white envelope and taken back in the back. And I believe the burden is on the defendant in this matter to meet that burden to show that the charges were not taken back there. And I don’t believe he’s met that burden at all.
“THE COURT: Anything else either one of you want to say?
“MR. KOMINOS: No, sir.
“MR. SULLIVAN: No, sir.
“THE COURT: Well, I want you to know that these charges did go back to the jury room. I don’t know of any case where the given charges did not go back. And of course you say you’re an officer of the court and if you saw that and if you knew it and felt that that was true, I’m sort of curious why you didn’t feel you had some responsibility to raise the question at the time you saw it....” •

As the foregoing excerpt demonstrates, this case is distinguishable from Pruett and Dalrymple because the assistant district attorney stated that the charges had been sent along with the jury and the trial judge concurred in that finding. Moreover, defense counsel’s contention that he realized the omission but did nothing to bring it to the court’s attention, prevents him from gaining the relief he now seeks. As this court stated in Hill v. State, 57 Ala.App. 437, 329 So.2d 126, cert. denied, 295 Ala. 406, 329 So.2d 132 (1976):

“With knowledge at the time of trial of the facts forming a basis for an objection ... it constitutes a specie of estoppel for one to forego an objection and proceed with the trial in the hope ... of a verdict in his favor.” 57 Ala.App. at 440, 329 So.2d at 128.

The judgment of the trial court is due to be affirmed.

ORIGINAL OPINION WITHDRAWN; APPLICATION FOR REHEARING GRANTED; JUDGMENT AFFIRMED.

All Judges concur.

      . This case was tried before July 16, 1982, the effective date of Temporary Rule 14, Alabama Rules of Criminal Procedure, which superseded this provision of Section 12-16-13.