author: TYSON, Judge.

text:
    Willie James WILLIAMS, alias v. STATE.
    2 Div. 408, 2 Div. 411.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1219.

      Bruce Boynton, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willie James Williams was indicted for five separate cases of forgery in the first degree and one case of possession of a forged instrument. By agreement of counsel, four forgery cases and the possession of a forged instrument case were consolidated and tried by a jury which found the appellant guilty as charged in each case. A sentencing hearing was held wherein the trial judge sentenced the appellant to four terms of life imprisonment pursuant to the Alabama Habitual Felony Offender Act. A second trial was held on the remaining forgery in the first degree indictment and the jury found the appellant guilty as charged. The trial judge sentenced the appellant, after a full hearing, to life imprisonment pursuant to the Alabama Habitual Felony Offender Act, said sentence to run concurrently with his previous convictions.

It should be noted that the appellant does not challenge the weight and sufficiency of the evidence, thus rendering a complete dissertation of the facts unnecessary. We will set out only those facts necessary for a discussion of the appellant’s issues of error.

This appeal arises from the appellant’s conviction of taking a variety of checks, issued to various owners, from said owners’ mailboxes, forging the name of the owner on the check, and causing said checks to be cashed in various stores.

Appellant’s counsel submitted a motion to suppress statements made by the appellant, while in custody, prior to trial of the cases. The trial judge held a hearing on the motion to suppress before trial of the cases began.

Perry Owings testified that he was employed as a detective with the Selma Police Department. He stated that he was in charge of investigating a case involving a check from the Dallas County School Board payable to one Mary Davis. He stated that the appellant was arrested, pursuant to this investigation, at his home in the early morning hours of November 16, 1982.

Detective Owings testified that he conducted an “interview” of the appellant while he was in jail. He stated that he told the appellant he had been charged with possession of a forged instrument and read the appellant his Miranda warnings. He further stated that the appellant signed the waiver of rights and gave a statement. He stated that neither he, nor anyone else had offered the appellant any hope of reward or promised him anything. He further stated that the appellant was not coerced into making a statement by anyone. Detective Owings stated that in this statement the appellant told him that he had taken the check from a mailbox while he was delivering papers; the appellant stated that he took the check to a local appliance store, forged the name on the back, and paid on an account at the store, getting cash on what was left after payment of the account.

Detective Owings further testified that this statement was tape recorded and transcribed by his secretary. He stated that this transcribed statement was shown to the appellant, who read the statement, corrected mistakes, and signed the statement.

Randy Melvin testified he was employed as a special agent with the United States Secret Service, Montgomery, Alabama. He stated that he met with the appellant and Officer Steve Tidwell at the Selma Police Department on November 17, 1982. He stated that he told the appellant he wanted to talk to him about some U.S. Treasury checks and then advised the appellant of his Miranda rights. He stated that the appellant indicated he understood those rights and was willing to cooperate and talk. Agent Melvin stated that he procured handwriting samples from the appellant, then took a statement. In this statement the appellant admitted taking, signing, and cashing a number of checks. Agent Melvin stated that this statement was written down and signed by the appellant, Officer Steve Tidwell, and Melvin.

Agent Melvin testified that no one offered the appellant any promise or hope of reward, nor did anyone coerce the appellant, in any way, to make the statement. He stated that the appellant asked him many times how the case was going to be handled. He stated that he told the appellant it was another agent’s decision to make. He further stated that no one told the appellant they would speak to the District Attorney or a judge about the case. He did state, however, that he told the appellant “if he cooperated it would be made known to the proper authorities that he cooperated.” (R. 38, 157).

Steve Tidwell testified that he was employed as a detective with the Selma Police Department. He stated that he was present when Agent Melvin interviewed the appellant on November 17, 1982, and when Agent McCorkle interviewed the appellant on November 30, 1982. He stated that no one offered the appellant any hope of reward, nor did they coerce him to make a statement. He stated no one made any specific representation that they would talk to a judge or district attorney about the case, nor did they tell him he would not be charged with other cases if he talked with them.

Officer Tidwell stated that Miranda warnings were given, the appellant agreed to talk, and written statements were taken and signed by the appellant.

The appellant testified that Officer Ow-ings told him if he would cooperate, Ow-ings would talk to the District Attorney and judge in his behalf. He stated that he was again interviewed, by Agent Melvin and Officer Tidwell. He stated that Tid-well told him he would have “to pay the state checks back and that the federáis would drop their checks if I go ahead and give statements.” (R. 54) He stated that he then told them he had taken twenty-more checks.

The trial court denied the motion to suppress the statements at the close of all the testimony.

I

The appellant contends that the trial court erred in admitting into evidence a confession he made to police officers. He specifically argues that his statement was involuntary because he was coerced into making the statement by promise of reward.

(A)

When the evidence on the circumstances surrounding the appellant’s confession is conflicting, the trial judge must determine its admissibility. If admitted, then the controverted testimony for the appellant goes to the jury on the confession’s credibility. Where the trial judge finds on conflicting evidence that the confession was voluntarily made, its finding will not be disturbed on appeal unless found to be manifestly contrary to the great weight of the evidence. Wiggins v. State, 440 So.2d 1164 (Ala.Crim.App.1983); Raines v. State, 428 So.2d 206 (Ala.Crim.App.1983); Snider v. State, 422 So.2d 807 (Ala.Crim.App.1982); Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982); Hardy v. State, 409 So.2d 996 (Ala.Crim.App.1982), Bennett v. State, 409 So.2d 936 (Ala.Crim. App.1981), cert. denied, 457 U.S. 1137, 102 S.Ct. 2968, 73 L.Ed.2d 1356 (1982). In this cause, the trial judge held the appellant’s confession to be voluntary and admissible and this decision was not contrary to the great weight of the evidence.

(B)

The appellant contends that he was coerced into making the confession by Agent Melvin. He argues Melvin stated that if the appellant was willing to cooperate he would make it known to the proper authorities and such statement rendered his subsequent confession involuntary.

In this case, Agent Melvin’s statement was not the equivalent of urging him to confess or to admit guilt. This court has held that a “promise to bring an accused’s cooperation to the prosecutor’s attention does not necessarily render a subsequent confession involuntary.” Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976); Moss v. State, 347 So.2d 569 (Ala.Crim.App.1977); Bennett v. State, 409 So.2d 936 (Ala.Crim.App.1981), cert. denied, 457 U.S. 1137, 102 S.Ct. 2968, 73 L.Ed.2d 1356 (1982); Williams v. State, [Ms. 6 Div. 761, May 31, 1983] (Ala.Crim.App.1983); Jemison v. State, 439 So.2d 786 (Ala.Crim.App.1983).

Moreover, in United States v. Frazier, 434 F.2d 994 (5th Cir.1970), it was held:

“Frazier’s confession was not involuntary by reason of the single fact that the F.B.I. agents told him if he cooperated with them his cooperation would be made known to the United States Attorney, that there might be some consideration given by the United States Attorney but that the agents could make no promises. Standing alone this was not sufficient to establish that appellant’s in-custody statement was involuntary.”

This quoted statement from Frazier has been approved and applied by this court. See Wallace v. State, supra; Tanner v. State, supra; Moss v. State, supra; Bennett v. State, supra. See also, United States v. James, 495 F.2d 434 (5th Cir.1974); United States v. Ballard, 586 F.2d 1060 (5th Cir.1978); United States v. JimenezDiaz, 659 F.2d 562 (5th Cir.1981).

After a review of the record on this point, we must hold that Agent Melvin’s statement did not render the confession involuntary. The appellant’s will was not overborne in this case, notwithstanding his claim to the contrary.

II

The appellant contends that the Alabama Habitual Felony Offender Act is unconstitutional as applied to him, and as such, the law is in violation of due process and constitutes cruel and unusual punishment.

The record discloses that the appellant was given due notice of the State’s intention to proceed under the Act and that a full hearing was conducted by the trial court, following trial, before sentencing was imposed in this cause.

The State properly presented the appellant’s prior felony convictions, which were: (1) Burglary, second degree (three cases); (2) Grand larceny; and (3) Embezzlement.

This court has upheld the constitutionality of the Alabama Habitual Felony Offender Act in a plethora of cases, and continues to do so on this appeal. Watson v. State, 392 So.2d 1274 (Ala.Crim.App.), cert, denied, 392 So.2d 1280 (Ala.1980); Serritt v. State, 401 So.2d 248 (Ala.Crim.App.), cert, denied, 401 So.2d 251 (Ala.1981); Smith v. State, 401 So.2d 251 (Ala.Crim.App.), cert, denied, 401 So.2d 257 (Ala.1981); Ingram v. State, 437 So.2d 128 (Ala.Crim.App.1982); Jackson v. State, 440 So.2d 1181 (Ala.Crim.App.1983).

Furthermore, this court has held that sentencing under this Act does not constitute cruel and unusual punishment, and we find no merit in appellant’s contention in this cause that such sentencing, as applied to him, constitutes such cruelness as to render it unconstitutional. Watson v. State, supra; Serritt v. State, supra; Smith v. State, supra; Bates v. State, 405 So.2d 1334 (Ala.Crim.App.), cert, denied, 405 So.2d 1339 (Ala.1981); Butler v. State, 439 So.2d 210 (Ala.Crim.App.1983); Jackson v. State, supra; Willis v. State, 441 So.2d 1030 (Ala.Crim.App.1983). See also, Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Serritt v. Alabama, 731 F.2d 728 (11th Cir.1984).

As required by Solem, Warden v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), we have considered the proportionality of the punishment herein expressed, both in light of the appellant’s prior record and the length of the sentence for the offense for which the appellant has been convicted. We find the sentence herein imposed to be in keeping with the statute , and Solem furnishes no authority for disturbing such sentencing in this cause. Weaver v. State, 437 So.2d 626 (Ala.Crim.App.1983); Minor v. State, 437 So.2d 651 (Ala.Crim.App.1983); Jackson v. State, supra; Pickens v. State, 447 So.2d 867 (Ala.Crim.App.1984); Jones and Bryant v. State, [Ms. 1 Div. 675, March 20, 1984] (Ala.Crim.App.1984); Serritt v. Alabama, supra.

Moreover, as long as the sentence imposed is within the statutory boundaries, this court will not overturn the decision of the trial court unless there is clear abuse. Blaylock v. State, 411 So.2d 1299 (Ala.Crim.App.1982); Tombrello v. State, 421 So.2d 1319 (Ala.Crim.App.1982).

The remaining issues propounded by the appellant are without merit.

We have carefully examined the record in this cause and in view of the foregoing principles of law, we find no cause for reversal.

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

AFFIRMED.

All the Judges concur.

      . At the sentencing hearing, the charge of possession of a forged instrument was dismissed.

      . Although the sentence imposed is long, it should be remembered that such is not as harsh as it seems since possibility of parole exists and is in the hands of the Parole Board to act on in appellant's behalf.


source: Caselaw Access Project

author: PATTERSON, Judge.

license: Public Domain

text:
    John D. LOTT, Jr. v. STATE.
    4 Div. 155.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1205.

      Francis P. Ralph, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

Appellant John D. Lott, Jr. was indicted by the Dale County Grand Jury for the offense of trafficking in marijuana. Lott was convicted and sentenced to ten years’ imprisonment. In addition, he was fined $25,000.00 plus costs.

The facts as they are revealed by the State’s case in chief show that an informant, Army Sergeant Robert Boyd, told the Dale County Sheriff’s Department that he would set up a buy of marijuana from the appellant. The informant arranged a meeting and told the Sheriff’s Department that if marijuana were in the car in which he and appellant would be driving, he would scratch the back of his head. At a pre-arranged time, Narcotics Investigator Bill Moore spotted a vehicle in which Boyd, appellant, and another individual were riding. Shortly thereafter, Boyd scratched the back of his head, and the authorities stopped the vehicle.

Investigator Moore identified himself to the occupants of the car. He asked appellant to step out of the car, which he did. Moore requested and received Lott’s driver’s license. At that time, Officer Edwards of the Ozark Police Department drove up. He identified himself to the occupants of the car and told them he had reason to believe they were transporting marijuana. He asked if he could search the car, and Lott consented. Officer Moore took the keys of the car and opened the trunk. He smelled the odor of marijuana, and a large quantity of the drug was found in an unsealed garbage bag in the trunk.

Four issues are raised on appeal.

I

Lott first contends that the war-rantless search of the automobile he was driving was illegal because he claimed he was not under arrest at the time of the search and he never gave consent for the search. There are several well-delineated exceptions to the requirement that a search warrant must be obtained before a legal search may be conducted. See C. Gamble, McElroy’s Alabama Evidence, Sections 334.01(3), 334.01(7) (3rd ed. 1977). One of these exceptions allows the Fourth Amendment privilege to be waived by consent. The exception provides that:

“[A] consent to an illegal search is a waiver of the constitutional protection from unreasonable searches and seizures. The burden is upon the prosecution to show, by clear and convincing evidence, that consent was knowingly and freely given. When the subject of a search is not in custody, and the state attempts to justify a search on the basis of his consent, the Fourth Amendment requires that the state demonstrate that the consent was in fact voluntarily given and not the result of duress or coercion, expressed or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse the search is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. The burden of proof that is to be borne by the prosecution in proving a valid consent is no greater than proof by a preponderance of the evidence,” C. Gamble, McElroy’s Alabama Evidence, Section 334.01(3)(b) (3rd ed. 1977).

There is ample evidence to show that appellant consented to the search of the automobile trunk. A relevant portion of the transcript reads as follows:

“Q. At the time of the arrest, Mr. Moore, did you — excuse me, at the time you stopped the Defendant’s automobile, would you tell me what authority you gained from him in order to obtain a search of his vehicle?
“A. He gave his permission.
“Q. He gave you permission?
“A. He gave us permission jointly. He said, ‘You may search.’ ”

Even if the consent given was not sufficient to justify the search, we feel the exigency of the circumstances justified the actions of the police officers. The law is clear that a warrantless search of an automobile is justified where there is probable cause to believe the vehicle contains contraband. C. Gamble, McElroy’s Alabama Evidence, Section 334.01(7)(b) (3rd ed. 1977).

In the instant case, authorities had been told that appellant would be driving a car containing a quantity of marijuana at a particular time and place. At that time and place, appellant appeared, driving a vehicle. The informant signalled the police that marijuana was in the car. The test for probable cause is “whether the facts available to the officer at the moment of the seizure or search, would warrant a man of reasonable caution to believe that the action taken was appropriate.” McEl-roy’s, supra, Section 334.01(7)(b).

Certainly, under this standard, the officers’ actions were appropriate.

Although appellant argues that a search warrant should have been secured before the search, we cannot agree. Neither the informant nor the authorities knew in what type of vehicle the appellant would choose to hide the contraband. Under the circumstances, obtaining a warrant would not have been practicable. Thus, we find no merit in appellant’s first issue.

II

Appellant next claims that the State failed to prove that he had knowledge that the vehicle he was driving contained contraband. We agree that where the State relies on constructive possession to prove its case there must be a showing of guilty knowledge. See Alabama Digest, Drugs and Narcotics, Key No. 64 and cases cited therein. Mere presence in a vehicle containing illegal drugs is not sufficient to prove knowledge. Cason v. State, 435 So.2d 200 (Ala.Crim.App.1983). However, the evidence provided ample proof that Lott was aware of the marijuana hidden in the car trunk.

On September 25, 1981, the appellant went to the Ozark Police Department with his attorney and made a statement in which he admitted having knowledge of the marijuana found in the car. The appellant waived his Miranda rights at the time he made the statement; the trial court determined that the statement was voluntary and allowed testimony concerning the statement into evidence at trial. Since we have determined that the statement was indeed voluntary (see discussion in Section IV below) we find that the confession, coupled with the information supplied by the informant, can only lead to the conclusion that appellant had knowledge of the marijuana concealed in the vehicle he was driving.

Ill

Appellant contends that the chain of custody of the seized contraband was broken and therefore the marijuana was not properly admissible into evidence. We cannot agree. The evidence as shown through the testimony of Officer Bill Moore and Drug Analyst Joe Saloom reveals the following:

After discovering the marijuana in the trunk of the car, Moore called for Officer Edwards. Moore handed the bag of contraband to Edwards, and, after placing the suspect under arrest, the two officers proceeded to the police station in separate cars. Moore followed the Edwards car directly to the station. After arriving, the two officers weighed the marijuana and determined that it totalled 10.3 pounds. Then Officer Moore observed Officer Edwards seal up the marijuana, initial the seal, and lock the marijuana in Edwards’s evidence locker. Officer Edwards was the only officer to have access to the locker. Later, the two officers met to take the marijuana to the crime lab. At that time Officer Moore observed that the bag containing the evidence was in the same condition as it had been at the time it was placed in Officer Edwards’s locker. The officers took the bag to Analyst Joe Saloom, at which time they observed him open the package in their presence. Officer Moore stated that the evidence was in the same condition as when it was placed in the bag.

A relevant portion of the transcript dealing with Moore’s observations reads as follows:

“Q. You don’t know that Billy Edwards — from the time that you last saw it until the time you next saw it that he couldn’t have opened it perhaps to weigh the contents again, and then resealed it with the same tape, and wrote his initials on it?
“A. I would say he would not.
“Q. Well, but you don’t know that he did not?
“A. It looked identically the way it was before. I would say he did not.
“Q. Tell me and the Jury where the bag was wrinkled?
“A. That bag was wrinkled throughout.
“Q. How was it wrinkled so characteristically that you can be certain that it had not been reopened?
“A. Well, if it had been reopened the plastic would have torn. There would have been a hole in the tape over it. It would have damaged the container.
“Q. And you inspected that container?
“A. Yes, prior to sealing it up — it has to be a sealed container going to the lab.
“Q. You inspected it when it returned into observation at the lab?
“A. Yes, sir.
“Q. And it is your testimony that beyond any doubt that was the same bag that Billy Edwards — and Billy Edwards could not have, under any circumstances, secured another bag and had it wrinkled or opened that bag perhaps to weigh the contents and reseal it with his initials?
“A. Yes, sir.
“Q. You’re saying that you are absolutely certain of that?
“A. Yes, sir.”

The record also indicated that the drug analyst observed that when the bag was brought to him the seal had not been broken. In addition, he saw the initials “B.E.” on the seal.

It is true that conflicting evidence existed concerning the marijuana. There was discrepancy between the weight of the marijuana at the time it was weighed by the two officers and later when it was weighed in the lab. However, it was determined, after the discrepancy was discovered, that the scales used by the officers were not in working order. In any event, conflicts of testimony concerning the chain of custody go to the credibility rather than the admissibility of the evidence. Slaughter v. State, 411 So.2d 819 (Ala.Crim.App.1981).

In order to establish the necessary chain of custody, it must be shown to a “reasonable probability” that the evidence is not substantially different from the way it was at the time it was seized. Slaughter, supra.

We conclude from an examination of the record in the instant case that such a showing was indeed made.

IV

The last issue appellant raises is whether error occurred when evidence was admitted during trial concerning an inculpatory statement he made to police officers of the Ozark Police Department. Appellant claims that he was induced to make the statement in return for a recommendation for probation. Appellant cites Section 20-2-81, Code of Alabama 1975, which states in pertinent part as follows:

“(b) The prosecuting attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this article and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.”

Appellant initiated the meeting with the law enforcement officers. His counsel was also present at the meeting. Police Chief Allen Benefield stated that appellant was not asked to confess and no incentive or reward was offered for his statement. Benefield testified that appellant did not provide any valuable information other than his confession concerning the incident in question. Several of the law enforcement officers present at the meeting were under the impression that Lott planned to lead them to a truckload of illegal drugs, but no such information was forthcoming. The Assistant District Attorney for Dale County, Henry Steagall, III, who was also present at the meeting, testified that he told appellant’s attorney that the District Attorney’s Office was not empowered to grant probation and that they could only make recommendations to the trial court. Steagall’s testimony concerning the interview included the following:

“Q. Now, during that interview, was there any reward, hope of reward, threat, or anything made to him in order to get him to make any statement to y’all?
“A. I would say absolutely not. In fact, we were asked to be present for the mere fact that we were just going to hear what they had to say.”

The trial court upheld the vol-untariness of Lott’s statement. In the case of Joshua v. State, 372 So.2d 885 (Ala.Crim.App.), cert. denied, 372 So.2d 891 (Ala.1981), this court enunciated the standard we must use in reviewing such a decision by a lower court:

“Where there is a conflict in the evidence on the voluntariness of a confession, great weight must be given to the judg- ■ ment of the trial judge in deciding this issue. His finding will not be disturbed on appeal unless palpably contrary to the weight of the evidence. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Rhine v. State, 360 So.2d 1056, 1058 (Ala.Cr.App.), cert. denied, 360 So.2d 1060 (Ala.1978).”

The record clearly indicates that Appellant understood and waived his Miranda rights, and we find no basis for overturning the ruling of the lower court.

For the reasons cited above, we affirm appellant’s conviction.

AFFIRMED.


author: TAYLOR, Judge.

text:
    Alfred GRACE v. STATE.
    1 Div. 355.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1347.

      W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Alfred Grace was convicted of robbery in the second degree and sentenced to 25 years’ imprisonment. He appealed his conviction to this court, which affirmed in Grace v. State, 431 So.2d 1331 (Ala.Crim. App.1982). This court at that time held that the failure to give written requested jury instructions was not error, because of the holding in Allen v. State, 414 So.2d 993 (Ala.1982).

The Federal District Court for the Southern District of Alabama ordered that the appellant be released from state custody unless he was granted an “out-of-time appeal”. The court further ordered that his case must be considered in light of the law as it existed previous to the Allen, supra, decision; that is, the case must be treated as if the appellant had an automatic exception to any requested jury charge not given. This appeal follows. The written requested charge not given by the court on which the appellant relies in his brief on this appeal is # 25. It states:

“I charge, you, members of the jury that this defendant, who comes into court with a criminal offense, is presumed by law to be innocent, and that presumption attends him, as a matter of evidence, during the course and progress of the trial, until such time when the jury is convinced beyond a reasonable doubt of his guilt.”

The oral charge of the court as it related to the presumption of innocence and the burden of proof was as follows:

“But at all stages of this proceeding, the Defendant is presumed to be innocent and the presumption of innocence continues until the evidence introduced for or on behalf of the State of Alabama proves to all twelve of you beyond a reasonable doubt and to a moral certainty that the Defendant is guilty in this case, either a Robbery in the Second Degree or Robbery in the Third Degree.”
“The burden of proof, therefore, is on the State of Alabama. To prove to you beyond a reasonable doubt and to a moral certainty the guilt of the Defendant. I will attempt to define to you a little more about this. I will go further and say that the burden is never on a Defendant to establish his own innocence or to disprove the evidence that the State advances during the course of the trial to establish the crime of which the Defendant is charged. But, in this case, if any or all of the evidence, considering the same, raises in your minds a reasonable doubt as to the guilt of the Defendant, you should acquit the Defendant in this case.”
“... In all those rules that I have given you, a Defendant does not have to disprove a thing. A Defendant can sit silent and the State still has to prove that Defendant guilty, or a Defendant may offer evidence, if a Defendant wants to. That’s something that can’t be inquired into or commented on during the trial, if a Defendant does not testify. The real reason for it is this, the State has got to prove in every criminal case that the Defendant is guilty beyond a reasonable doubt. No inference or conclusion may be drawn by you the Jury from the fact that the Defendant did not testify as a witness in his own behalf, even though that Defendant had the right to do so if the Defendant chose to do so. Nor, should this have any weight, whatsoever, with this Jury in deciding this case. I refer again to the presumption of innocence as is accorded to every Defendant that is tried in every State in the United States charged with crime. He is presumed innocent until proved guilty.”

A

The first question to be dealt with is whether the appellant’s rights under the constitution of the United States were violated by virtue of the failure to charge that the presumption of innocence was evidence in the case. The United States Supreme Court, in Agnew v. United States, 165 U.S. 36, 51-52, 17 S.Ct. 235, 241, 41 L.Ed. 624 (1897), rejected the notion that the presumption of innocence was evidence; the Court then held in Howard v. Fleming, 191 U.S. 126, 24 S.Ct. 49, 48 L.Ed. 121 (1903), that an accused person did not have the right under the 14th Amendment to an instruction as to the presumption of innocence. See Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), and Kentucky v. Wharton, 441 U.S. 786, 99 S.Ct. 2088, 60 L.Ed.2d 640 (1979).

B

Were the rights of the accused violated under Alabama law?

The case law in Alabama consists of some cases saying that failure to charge that the presumption of innocence is evidence is reversible error and some cases saying that it is not. Some of the cases holding that failure to give such a requested charge is reversible error when the court’s oral charge did not include it are: Denson v. State, 50 Ala.App. 409, 279 So.2d 580 (Ala.Crim.App.1973); Bryant v. State, 348 So.2d 1136 (Ala.Crim.App.1977); Brooks v. State, 380 So.2d 1012 (Ala.Crim.App.1980). Cases holding that it is not reversible error to refuse a charge saying that the presumption of innocence is evidence, in absence of that proposition being stated in the oral charge, are: Sellers v. State, 353 So.2d 535 (Ala.Crim.App.1977), and Carroll v. State, 407 So.2d 177 (Ala.1981); Gordon v. State, 268 Ala. 517, 110 So.2d 334 (1959); Murray v. State, 49 Ala. App. 590, 274 So.2d 365 (1972), cert. denied, 290 Ala. 369, 274 So.2d 368 (1973).

Of course, if the court in its oral charge or in another written requested charge fairly and substantially covers the principles of law contained in the charge, then the refusal of that charge is not error. Lambeth v. State, 380 So.2d 923 (Ala.1979), quoting Dillard v. State, 371 So.2d 947, 948 (Ala.1979).

We are satisfied that the court gave a clear instruction to the jury as regards the presumption of innocence. In fact, the record indicates that the court charged them twice on the presumption of innocence. Cases regarding the niceties of particular language in a charge bring to mind the lawyers’ lament that jury charges are directed toward the appellate courts, rather than the jury.

The most recent decision on the issue from our own Supreme Court is controlling in this case. Upon the authority, as well as the reasoning, contained in Carroll v. State, supra, we hold that the trial court in this case did not commit reversible error in its failure to give the written requested charge addressed in this appeal and its companion, written requested charge # 6.

Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Charles Austin GRATTON, Jr. v. STATE.
    6 Div. 611.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied July 31, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1289.

      George W. Andrews, III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Charles Austin Gratton, Jr. was indicted and convicted for burglary in the first degree involving Judy Wilkinson. He was sentenced as an habitual offender to life without parole. We affirmed Grafton’s conviction for first degree burglary involving Barbara Britton in Gratton v. State, 455 So.2d 189 (Ala.Cr.App.1984). Eight issues are raised on this appeal.

I

Gratton argues that reversible error was committed when the trial judge refused to allow the defense to introduce evidence concerning the mental incapacity of Mrs. Wilkinson, the victim.

Mrs. Wilkinson testified that on the morning of May 3, 1980, she was awakened by “a man saying if you don’t turn over on your back, I’m going to kill your baby.” Mrs. Wilkinson got on top of her two-year-old daughter who was sleeping with her to protect her. The man started stabbing Mrs. Wilkinson and then ran from her apartment. About a week later, after Mrs. Wilkinson had been released from the hospital, she identified Gratton in a police lineup as her assailant. On cross examination of Mrs. Wilkinson, defense counsel did not attempt any inquiry into her mental condition.

As part of Grafton’s defense, defense counsel sought to introduce into evidence a petition which Mrs. Wilkinson’s mother had filed seeking to have the victim committed to a mental institution.

“MR. JOHNSON (Defense Counsel): Your Honor, I would propose to show in June of 1980, a commitment hearing— not a commitment hearing — but a petition to commit Mrs. Judy Wilkinson to Bryce Hospital alleging that she was mentally ill was' filed in Probate Court, that she was ordered arrested and that she was carried to the jail and then transferred quickly to 3 North. I would offer to show from this petition, and the petition was signed by her mother, and I would question her as to whether or not she was over a two to three year period taking tranquilizers and pain pills excessively and these things that are in the petition from her mother. And I would also question her as to whether or not— Mrs. Wilkinson as to whether or not she had had some mental illness for some two to three years, whether or not she continuously broke glass and whether or not she threatened people on occasions with knives. And I would also propose, if your Honor ruled that it was admissible, to call — if she denied those things, to call her mother who filed that sworn petition, the purpose of that being to show her state of mind and just her competency as a witness.
“That was filed in June of ’80, June the — anyway, it was June. I’m not sure of the exact date. But it was June of 1980.
“MR. CAHILL (Assistant District Attorney): Your Honor, we would object to this going in. That was merely an allegation just as the swearing of a warrant is an allegation. And we feel that that would not be admissible, whether it be an allegation of mental competency or an allegation of crime, committing a criminal offense.
“MR. JOHNSON: I will state, Judge, that upon the hearing by Judge Reynolds some week or ten days later, that the petition was dismissed, that she was released from that hospital.
“THE COURT: All right. Well, being that June was after the event and all, I will sustain the objection.” (Emphasis added).

Defense counsel then called Mrs. Wilkinson as a witness but did not make or attempt any inquiry into her mental competency.

Although the credibility of a witness may be attacked by a showing of mental derangement, ' questions “which merely tend to show a mental condition or mental treatment at a time prior to trial, or not contemporaneous to the matter being testified about, are not admissible as impeaching the credibility of a witness.” Garrett v. State, 268 Ala. 299, 306-07, 105 So.2d 541 (1958).

“The credibility of a witness may be impeached by proving mental derangement or insanity but only if such mental incapacity exists at the time the witness takes the stand to testify or at the time he observed the facts to which he has testified on direct. Consequently, proof may be made of his insanity or another more precise kind of mental illness that might be reasonably supposed to affect his capacity to observe, recollect, or narrate either at the time of his testifying or at the time of the event to which he has testified.” C. Gamble, McElroy’s Alabama Evidence, § 141.01(1) (3rd ed. 1977).

From the record there appears to be some confusion over the exact manner in which defense counsel desired to prove Mrs. Wilkinson’s mental incompetence. The petition was inadmissible because it constitutes hearsay, Cox v. State, 36 Ala. App. 99, 102, 52 So.2d 826 (1951), and insanity may not be proven by hearsay. Dickinson v. State, 228 Ala. 28, 29, 152 So. 29 (1934).

Here, there was no specific contention that Mrs. Wilkinson was mentally deranged at the time of the offense or at the time of trial. Neither was there a contention that Mrs. Wilkinson’s alleged use of drugs was so excessive as to have impaired her memory. The principle stated in Standard Oil Co. v. Carter, 210 Ala. 572, 574, 98 So. 575 (1924), is applicable here. “The use of opium cannot be introduced to impair the credit of a witness unless it be shown that he was under the influence of the drug at the time of testifying or at the time of the occurrence of the event to which he is testifying, or that his mind was generally impaired by the use of said drug.”

We find no error in the action of the trial judge. It is not clear exactly how defense counsel was going to attempt to impeach Mrs. Wilkinson, whether by the petition itself or through examination of Mrs. Wilkinson or her mother. Moreover, it is within the discretion of the trial court to refuse to allow a witness to be recalled to lay a foundation for impeachment. Pitman v. State, 148 Ala. 612, 42 So. 993 (1906); Bell v. State, 74 Ala. 420 (1883); Baxter v. State, 360 So.2d 64 (Ala.Cr.App.1978).

II

Gratton contends that Mrs. Wilkinson’s in-court identification of him should have been suppressed “due to the highly suggestive and distorted procedure employed in the police line-up.”

Gratton was not denied any constitutional right to the assistance of counsel. He was arrested in the presence of his attorney while they were in court on another case. At that time counsel was informed that a lineup would be conducted but “there was never a specific time or place set for a lineup.” Gratton had not been indicted for the instant offense at the time of the lineup.

The right to counsel established in United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967), applies only to post-indictment corporeal identification procedures, and does not extend to identification procedures that occur prior to indictment. Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972). “The defendant had no constitutional right to counsel at a post arrest lineup for the reason that adversary judicial proceedings had not been initiated.” Franklin v. State, 424 So.2d 1353, 1354 (Ala.Cr.App.1982).

Gratton asserts that the “visual identification was unduly suggestive” because he “age 30, [was] between a 19 year old and a 22 year old, outweighing his two ‘comparative’ participants by 20 and 16 pounds, respectively.”

There were six participants in the lineup. All were dressed in white jail coveralls. The participants on either side of Gratton were placed there by Birmingham Police Sergeant Ann Ballard, who conducted the lineup. Both of these men were six feet tall, as was Gratton. Sergeant Ballard placed them there because she “tried to pick the ones that looked most like the suspect to be nearest.” “The fact, in and of itself, that there was some slight discrepancy in physical appearance among the participants of a lineup does not taint that identification procedure or render it suggestive as a matter of law.” Lewis v. State, 399 So.2d 907, 909 (Ala.Cr.App.1981). “(D)isparate physical appearances of the lineup participants is not alone sufficient to warrant a finding of suggestiveness.” Swicegood v. Alabama, 577 F.2d 1322, 1327 (5th Cir.1978); Jones v. State, 439 So.2d 824, 827 (Ala.Cr.App.1983).

Gratton also contends that “the voice identification was, due to the utterly inadequate equipment employed, so distorted and improperly amplified as to risk being totally misleading.” Sergeant Ballard, who conducted the lineup, testified that she heard Gratton’s voice both before and after the lineup and that his voice “appeared the same as it had on the microphone” during the lineup and that there was not any difference. She heard no echo or distortion over the speaker system. Two defense experts, who were not present when the lineup was conducted, examined the public address system and the acoustics in the lineup room at the Birmingham City Jail. One witness testified that there was “considerable distortion of the voice ... primarily due to the reverberation within the small room.” The other expert testified that he could not recognize a known voice over the sound system. He stated that “it’s a very poor system as a voice identifying instrument. It appears to have been a system designed to communicate merely from one room to the next, and not to identify words.”

Although the alleged poor quality of the sound system at the lineup facilities may have been “misleading”, we fail to understand how that could be termed suggestive. In view of the fact that there was conflicting testimony on the sound reproducing qualities of equipment, we will not disturb the trial judge’s ruling on the admissibility of the in-court identification. Under the circumstances of this case, the testimony of the sound experts went to the credibility of Mrs. Wilkinson’s identification and not to the admissibility of her in-court identification.

Mrs. Wilkinson’s identification was based upon what she both saw and heard. Mrs. Wilkinson identified Gratton in the lineup when she first walked in and saw the backs of all the participants. Cartee v. State, 390 So.2d 1121 (Ala.Cr.App.), cert. denied, Ex parte Cartee, 390 So.2d 1126 (Ala.1980). She was positive in her identification. Furthermore, there is evidence in the record that her identification was reliable under the totality of the circumstances analysis employed in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and that her in-court identification of Gratton was based on her observation of him at the time of the crime. For these reasons, we find that the pretrial identification procedures were not impermissibly suggestive and did not present a substantial likelihood of misidentification. Consequently, Mrs. Wilkinson’s in-court identification of Gratton was proper.

Ill

State witness Jack Bland testified over defense objection that he was employed at the Birmingham City Jail on August 1, 1967, and that he made a fingerprint card on Gratton. Gratton argues that this was an effort by the State to convey to the jury that Gratton had been in jail in August of 1967. .

The crime occurred on May 3,1980. Testimony concerning Gratton’s fingerprint card was admitted into evidence and used to identify and match the prints Gratton left at Mrs. Wilkinson’s apartment. The fingerprint card itself was not admitted into evidence.

“The mere existence of recorded fingerprints does not per se imply the existence of a criminal record.” Brown v. State, 369 So.2d 881, 884 (Ala.Cr.App.1979). “The general rule ... is that the admission of a defendant’s fingerprint identification card is not impermissibly prejudicial to the defendant where the card was altered prior to its introduction so that it did not disclose the defendant’s criminal record.” Woodson v. State, 405 So.2d 967, 968 (Ala.Cr.App.), cert, denied, Ex parte Woodson, 405 So.2d 969 (Ala.1981). The fact that the fingerprint card was made at the Birmingham City Jail does not, in and of itself, imply the existence of a past criminal record. Woodson, 405 So.2d at 969 (“The date (even if it is before the offense involved in the trial) and the place of taking (the police department) need not be eliminated from the fingerprint record before the card is introduced into evidence”).

ÍV

At the time of his arrest, Gratton was in the county courthouse on another charge. His automobile was parked across the street in the county courthouse parking lot. Gratton argues that the prosecutor improperly attempted to place this evidence before the jury so as to afford the inference that Gratton was in court for another offense. We disagree.

There had been testimony that Gratton’s automobile was discovered and seized on the first floor of the parking deck of the Jefferson County Courthouse when the prosecutor elicited the fact that Gratton was “across the street” from his automobile when the car was located. Earlier, the trial judge had remarked: “Well, I think that anybody can come in and park their truck there and maybe come in for a fishing license or anything. But I will sustain on that point. I'm super sensitive on that point. * * * You may say that his car was at a downtown parking lot.” Later, without objection, Sergeant Ballard testified that she had first seen Gratton’s car “on the courthouse parking deck.” There was no testimony placing Gratton at or in the county courthouse at the time his car was located.

We do not think that this information is adequate to convey to the jury the implication that Gratton was in court facing criminal prosecution at the time his automobile was seized.

V

Gratton argues that the knife seized from his automobile was improperly admitted into evidence for three reasons. First, he asserts that “the warrant does not show on its face that the information received from Dewey Cole, the witness who described the car, is reliable.” “The same showing required of an informer under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or witness.” Mauldin v. State, 402 So.2d 1106, 1108 (Ala.Cr.App.1981). In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the rigid two-pronged test of Aguilar and, in its place reaffirmed “the totality of the circumstances analysis that traditionally has informed probable cause determinations.” 103 S.Ct. at 2332. Furthermore, since the affidavit was not introduced into evidence at any time before the circuit court and is not in the record on appeal, this Court’s consideration of the sufficiency of the affidavit is precluded. Thomas v. State, 383 So.2d 214, 215 (Ala.Cr.App.1980).

Gratton’s second argument is that the search warrant was not executed by a member of the Sheriff’s Department nor was a proper return made by a Deputy Sheriff. Since the search warrant was not offered into evidence and is not contained in the record, we have nothing to review. Thomas, supra. Moreover, although Police Sergeant Ballard did testify that she “executed” the search warrant, she later stated that she was accompanied by “Sheriff’s Deputy Sergeant J.D. Robinson” and that “the Sheriff’s Deputy opened” the car doors.

Since the police officers were accompanied by a deputy sheriff, the search warrant was properly executed, Luster v. State, 433 So.2d 481 (Ala.Cr.App.1983), and the holding of Rivers v. State, 406 So.2d 1021 (Ala.Cr.App.), cert. denied, 406 So.2d 1023 (Ala.1981), was not violated. Alabama Code (1975), § 15-5-5, § 15-5-7. Since the warrant was issued by a circuit judge, rather than a municipal judge, Alabama Code § 12-14-32 does not apply. See Palmer v. State, 426 So.2d 950 (Ala.Cr.App.1983); Hicks v. State, 437 So.2d 1344 (Ala.Cr.App.), affirmed, Ex parte Hicks, 437 So.2d 1346 (Ala.1983).

Finally, Gratton argues that there was no showing that the knife recovered was the same knife used against Mrs. Wilkinson. Mrs. Wilkinson testified that she was stabbed with a knife. The treating physician testified that a knife could be reasonably calculated to have produced the wounds he observed on her body. Grat-ton’s fingerprints were found at the scene and his automobile was observed leaving the scene of the crime.

Although the State could not prove with certainty that the knife found in Gratton’s car was the same knife he used in the assault, the discovery of the knife in Gratton’s car was an incriminating circumstance the jury was entitled to consider. See Mitchell v. State, 94 Ala. 68, 10 So. 518 (1891); Carroll v. State, 440 So.2d 1168, 1170-71 (Ala.Cr.App.1983); Lewis v. State, 335 So.2d 426, 429, n. 1 (Ala.Cr.App.1975), cert. denied, 335 So.2d 429 (Ala.1976). Evidence that the accused possessed a weapon with which the crime might have been committed after the commission of the crime is relevant and admissible, at least where the accused is placed at or near the scene of the crime at about the time of its commission. Humphrey v. State, 370 So.2d 344, 347 (Ala.Cr.App.1979). “Even though the witness could not say positively that this knife was the exact one used in the fatal stabbing, such should not prevent the knife from being introduced into evidence for the consideration of the jury.” Means v. State, 51 Ala.App. 8, 11, 282 So.2d 356, cert. denied, 291 Ala. 792, 282 So.2d 359 (1973).

VI

Gratton complains because jurors were permitted to “wander through the Courtroom” during the hearing on his motion to suppress the in-court identification. He contends that although “apparently the jurors did not hear any of the testimony since the judge cut off the proceedings when they entered ... the clear implication from such exposure is that the jurors could conclude that the defense was seeking to remove or hide some evidence from their consideration.”

The record shows that after the jury had been selected and sequestered, the jurors were allowed to “use the telephone to call anybody at home ... and tell them to bring you some things to the Passport Inn.” The jury was removed from the courtroom and a hearing was conducted on several motions filed by Gratton. During this hearing, defense counsel made several objections to jurors “being brought” through the courtroom by “court personnel”. In response to these objections, the trial judge noted that “(e)very time they came in, we stopped” and this fact is not disputed. Here, there was no violation of the rule that hearings on motions and objections are properly taken up outside the presence and hearing of the jury. Jenkins v. State, 404 F.2d 873 (5th Cir.1968).

“The trial court is vested with discretion in the conduct of a trial and appellate courts will not interfere therewith unless it clearly appears that there has been an abuse of discretion.” Townsell v. State, 255 Ala. 495, 498, 52 So.2d 186 (1951). This Court will not interfere with the trial court’s exercise of discretion unless a clear abuse in the exercise of that authority has been shown. Woods v. State, 367 So.2d 982, 984 (Ala.1978). The trial judge’s actions are presumptively correct in the absence of a showing to the contrary. Ballard v. State, 236 Ala. 541, 542, 184 So. 260 (1938). On appeal, error is not presumed and the party claiming that a trial judge has abused his discretion has the burden of persuasion. Connell v. State, 294 Ala. 477, 481, 318 So.2d 710 (1974). Speculation and surmise will not serve as a basis for error in a criminal case. Cook v. State, 369 So.2d 1243, 1249 (Ala.Cr.App.1977), affirmed in part, reversed in part on other grounds, 369 So.2d 1251 (Ala.1978).

VII

Gratton argues that the trial judge failed to instruct the jury that the intent to commit the assault had to exist at the time of the unlawful entry. The indictment charged that Gratton “did, knowingly and unlawfully enter or remain unlawfully in a dwelling ... with intent to commit a crime therein, to-wit: assault in first degree, and while effecting entry or while in the dwelling or in immediate flight therefrom, said defendant was armed with an explosive or deadly weapon.”

In his oral instructions to the jury the trial judge defined burglary in the first degree but failed to define assault in the first degree. The judge gave the statutory elements of burglary in the first degree and also charged that the jury had to find beyond a reasonable doubt that Gratton knowingly and unlawfully entered Mrs. Wilkinson’s dwelling and “that in so doing he acted with the intent to commit a crime therein.”

When the prosecutor informed the judge of his failure to charge on the elements of assault in the first degree, the trial judge gave an additional instruction to the jury stating the statutory definition of that offense. Defense counsel then requested that “since you added that charge, that you also instruct the jury that they be required to find an intent to commit assault in the first degree at the time of entering” the dwelling. The judge overruled that request.

Here, the request for additional or repeated instructions on intent was properly refused. The substance of the requested charge was covered in the original charge, White v. State, 410 So.2d 135 (Ala.Cr.App.1981), and it was in the judge’s discretion whether or not to repeat an instruction already given. Flowers v. State, 402 So.2d 1118, 1119 (Ala.Cr.App.1981).

Moreover, the requested instruction was not a correct statement of the law. Prior to the adoption of Alabama’s new Criminal Code, the statutory crime of burglary in the first degree (§ 13-2-40) required that the intent to steal or to commit a felony be concurrent with the breaking and entering. Cook v. State, 409 So.2d 965, 967 (Ala.Cr.App.1981); Davis v. State, 44 Ala.App. 284, 289, 207 So.2d 649 (1967), cert. denied, 281 Ala. 718, 207 So.2d 656 (1968). However, under the criminal code definition of burglary, the intent to commit a crime may be concurrent with the unlawful entry or it may be formed after the entry and while the accused remains unlawfully. § 13A-7-5 through § 13A-7-7 Commentary. Consequently, the request to instruct that the intent must be formed at the time of entry was an incomplete statement of the law and therefore properly refused.

VIII

Gratton was properly sentenced as an habitual offender. We reaffirm our decision in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, Ex parte Watson, 392 So.2d 1280 (Ala.1981), upholding the constitutionality of Alabama’s Habitual Felony Offender Act. Alabama Code (1975), § 13A-5-9.

Both at trial and on appeal Gratton has received exemplary representation by appointed counsel. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Thurman B. LANTON v. STATE.
    4 Div. 248.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1329.
    Samuel L. Adams, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and Glenn L. Davidson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Thurman Lanton was indicted and convicted for rape in the first degree in violation of Alabama Code (1975), § 13A-6-61. Sentence was fifteen years’ imprisonment. Two issues are raised on appeal.

I

The trial judge did not err in denying the defendant’s motion for a physical examination of the thirteen-year-old victim. “It may well be doubted, in cases of rape and cognate offenses, whether the court has the power to make an order compelling the inspection of the private person of a prose-cutrix in the event of her refusal to submit to such examination. If such right exists at all, we should hold it to be a matter of judicial discretion with the trial court, to be exercised only in cases of extreme necessity, and not a subject of review on appeal to this court.” McGuffv. State, 88 Ala. 147, 7 So. 35, 38 (1889). See generally 18 A.L. R.3d 1433 (1968) involving a psychiatric examination. “Although there is some authority to the contrary, it has been held that a court has inherent power, on motion of accused, to order a physician to make a physical examination of prosecutrix. It has also been held that the granting or refusal of an order for a physical examination of the prosecutrix is a matter within the discretion of the trial court, which will not be reversed except for a manifest abuse of such discretion.” 75 C.J.S. Criminal Law § 80 (1952).

Here, the child had been examined by a physician not a gynecologist. This physician testified as a defense witness that she could not determine whether or not the prosecutrix had engaged in sexual intercourse because the victim was too tense. The defendant alleged in his motion that he “has reason to believe an examination by a competent gynecologist would reveal that said ... [prosecutrix] has not engaged in sex.” We do not consider this to constitute a showing of manifest or clear abuse of trial judge’s discretion.

II

Although penetration is an essential element of the crime of first degree rape, an injury to the private parts of the victim is not. Evidence of injury may be used to prove penetration but it is neither essential nor necessary. Injury to the victim’s private parts is merely a factor that should be considered in determining the existence or nonexistence of penetration. Annot., 76 A.L.R.3d 163, § 7 et seq. (1977).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Sonja Elaine WHITLOW v. STATE.
    5 Div. 840.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1327.

      Richard D. Lane, Auburn, for appellant. Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a trial by jury on an indictment charging defendant with making a sale of marijuana, for which she was sentenced by the court to imprisonment for fifteen years.

No issue is presented on appeal as to the sufficiency of the evidence to support the verdict and judgment of conviction. There is no good purpose, therefore, in our summarizing the evidence in general, and our references to the evidence will be limited to those pertinent to any of the four issues presented in appellant’s brief, which we now consider in the order of their presentation.

I.

Appellant states that it was “error for the trial court to allow the State to argue first and last on opening statements.” The issue is directed at that which is shown by the following portion of the court reporter’s transcript just after State’s attorney had made an opening statement to the jury and defendant’s attorney followed with an opening statement to the jury:

“MR. WILKES [State’s Attorney]: Judge, could I make one comment to the jury?
“THE COURT: Uh-huh.
“MR. LANE [Defendant’s Attorney]: Well, I would object to that, Judge. He’s already had a chance to make opening argument.
“THE COURT: He’s got the right in opening arguments to open and close, as well as in closing arguments.
“MR. LANE: Well, I just note my objection in the record to that. He’s already given his opening argument and I have given mine.
“THE COURT: Sure.
“(Thereupon, the following occurred in the presence and hearing of the jury:) “MR. WILKES: Judge, I just want to make one final statement to the jury before we start.
“Normally, when we present a case to a jury, we try to go in a chronological and orderly fashion. In this particular case, we can’t do that. The last witness in the case, the employee of the Department of Forensic Science, who would normally testify last about the vegetable matter, he needs to be in Selma at 1:00 o’clock— “MR. LANE: Judge, I’m going to object. They can just call their witnesses as they see fit.—
“MR. WILKES: I would just like to explain—
“MR. LANE: We are getting undue, you know undue sympathy for a witness and the lawyers will work with the court. He doesn’t need to make a big speech about where they—
“THE COURT: Sustain the objection. They understand, I think.
“MR. WILKES: We just want to call a witness out of order, just to accommodate him so he can be in a trial in Selma.
“MR. LANE: We have no objection to that.
“THE COURT: You may do so.”

Notwithstanding our reservation as to whether defendant preserved on the trial the particular issue presented on appeal, we determine that the issue is not well taken. Appellant cites in support of his contention, Rule 19.1, Proposed Alabama Rules of Criminal Procedure (Advisory Committee Draft, 1977), which was not in effect on the date of appellant’s trial, but even if it were, it would not constitute authority in support of appellant’s contention, for that Proposed Rule 19.1(a)(4) would provide that “the District Attorney may be permitted a brief statement in rebuttal in the court’s discretion.” The law that controls as to the particular point is set forth in Pope v. State, 174 Ala. 63, 57 So. 245, 249 (1911), in which the right of the prosecuting attorney to make a brief reply to the opening statement of counsel for the defendant was upheld. As is to be noted from the above-quoted portion of the transcript as to what occurred as the attorneys were making their opening statements to the jury, the statement made by the attorney for the State was not in reply to or rebuttal of the statement made by defendant’s attorney, but it was an explanation for his calling the first witness for the State out of the regular order that a practicing attorney would ordinarily take in presenting his side of the case. Probably it would have been better for the prosecuting attorney not to have attempted such explanation. The trial judge evidently thought so in sustaining defendant’s objection to the attempted extended explanation. In our opinion, there was no prejudice to the defendant and the trial court committed no error in ruling as it did as challenged by the first issue presented by appellant.

II.

By the second issue presented by appellant, her attorney contends that it was prejudicial error to allow testimony from the State’s forensic expert witness as to the hallucinatory effect one would have gotten from smoking the marijuana sold by the defendant and examined by the witness. The ruling of the court on the point is shown by the following portion of the transcript of the direct examination of the witness:

“Q. If anyone had, of course, smoked the marijuana that you examined, would they have gotten hallucinating high, as some people call it?
“MR. LANE: Objection, Judge. That’s not material. He’s already testified it was a controlled substance. The substances that make it up are a controlled substance and we just have a sale case here and that’s a violation of the law as it is alleged, a sale.
“THE COURT: Overruled.
“MR. LANE: What effect it’s going to have on somebody has no bearing except to inflame the jury.
“THE COURT: Overruled.
“You may answer.
“A. Yes, sir, it would cause an effect on an individual.”

Appellant cites nine eases in support of his second contention for a reversal. The closest relation that any of such cases have to appellant’s second issue is that they hold that evidence of commission of crimes other than the one for which an accused is being tried is not admissible unless it comes within one of the exceptions to such rule of exclusion. The cases cited are inap-posite to the second issue presented by appellant. In our opinion, the question asked by the prosecuting attorney was flavored in favor of the State and against defendant but any improper flavoring thereof was nullified by the conservative answer of the witness, “Yes, sir, it would cause an effect on an individual.”

III.

The third issue presented by appellant is thus stated in the brief of her counsel:

“It was prejudicial error and injurious to the substantial rights of the defendant to allow the State to testify through its forensic expert that marijuana is a controlled substance and also that T.H.C., one of its components, is a controlled substance when in fact the charge in the case against the defendant was merely sale of marijuana and not possession of T.H.C., or sale of T.H.C. i.e., to allow the testimony of another crime not charged.”

In support of appellant’s third contention, the same nine cases are cited that are cited in support of appellant’s second issue and which are more nearly in point as to appellant’s third issue than they are as to appellant’s second issue.

Appellant’s third issue demonstrates admirable ingenuity and has the semblance at least of a valid contention that the State was allowed to show the commission of a crime in addition to the one for which she was being tried, but it is reasonably clear, we think, that jurors could not have been misled by such testimony to believe that defendant was being prosecuted, or that she could be legally prosecuted, for more than one crime arising out of the sale of the specific prohibited substance, marijuana. The testimony had educational value in its revelation to jurors, who otherwise might not have known it, that “Marihuana” and “Tetrahydrocannabinols” are both hallucinogenic Schedule I controlled substances. This unquestionable scientific and legal idiosyncrasy was perhaps known already by some of the jurors. The defendant could not have been harmed by such testimony. The trial court did not commit error prejudicial to defendant in overruling defendant’s objection to questions calling for such evidence, in overruling defendant’s motions to exclude the evidence or in denying defendant’s motion for a mistrial by reason of the introduction of the evidence.

IV.

By appellant’s final issue, the brief of her attorney challenges the introduction in evidence, over the objection of defendant, of State’s Exhibit 1, which purports to contain the marijuana allegedly sold by defendant, by arguing that there was no proof of the chain of custody between the time and place of the alleged sale and the time and place of its introduction in evidence on the trial. Before State’s Exhibit I was admitted in evidence Investigator Robert Thornton, while working as an undercover agent in Lee County, testified that he purchased from the defendant a “greenish-type material” that appeared to be marijuana, which “was packaged in a small manila envelope,” that he took it with him when he left the residence on his way to his automobile. He further testified:

“... when I got it and got out of the area, I parked where I could write the defendant’s name and everything I knew about the defendant on it, the time of the buy, the address, right here (indicating).
“Q. All right. The writing that appears on the envelope — is that your handwriting?
“A. That’s correct. My initials.
“Q. And then, did you make any more buys between the time you bought from Sonja and the time you say [sic] Officer Brock?
“A. If I recall correctly, no, sir.
“Q. And you did not? All right.
“And that was — that was the only marijuana that you had on you at that time? “A. That’s true.
“Q. And where did you see Officer Brock?
“A. At the F.O.P. Lodge.
“Q. Do you recall what time?
“A. It was about 10:00 o’clock P.M.
“Q. That same night?
“A. Yes, sir.
“Q. And, upon meeting Officer Brock, what did you do?
“A. I then handed this over to him and I filled out ....
“Q. Okay. When you turned the envelope over to Officer Brock was it in the same condition as it was when you received it from the defendant, the envelope and the contents thereof?
“A. Yes, sir, it was.”

Officer Brock testified in pertinent part as follows:

“A. I met with Thornton at the F.O.P. Lodge in Opelika at approximately 10:00 P.M. that night, for him to turn evidence, drug evidence, over to me which he had purchased.
“Q. Let me show you this envelope here and ask if you can identify that envelope?
“A. Yes, sir. This is the marijuana in the envelope that he turned over to me that night.
“Q. All right. Upon receiving that envelope and the contents thereof, what did you do with it?
“A. I took it to the Opelika Police Department, sealed it in this envelope (indicating), and put it in our evidence locker.
“Q. All right. Let me show you this larger envelope and ask you if the initials on here, ‘R.C.B.,’ are those your initials?
“A. Yes, sir.
“Q. Did you place those on there?
“A. Yes, sir.”

Officer Brock further testified that he then placed the small envelope in the larger envelope, sealed the larger envelope and initialed it and “placed the envelopes and contents therein in the drug evidence locker in the Opelika Police Department” and that they were “in the same condition then as they were when” he “received them from Detective Thornton.”

Officer Seroyer of the Opelika Police Department testified that on April 15, 1983, he saw the “large envelope when it was sealed with tape and had the initials ‘R.C.B.’ thereon in the evidence locker at the Opelika Police Department,” and delivered it to Mr. Tellis Hudson, an employee of the Department of Forensic Science. During the testimony of the expert witness who analyzed the substance, he said that he received State’s Exhibit 1 on April 15, 1983, “from Tellis D. Hudson, a criminalist with the Alabama Department of Forensic Sciences of Auburn.”

There was abundant proof of the chain of custody of the contents of State’s Exhibit I. Appellant’s final contention for a reversal is not well taken.

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:
    Thedford A. HUGULEY v. CITY OF DEMOPOLIS.
    2 Div. 433.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 1984.
    Ralph L. Liverman, Eutaw, for appellant. William H. Traeger III of Manley & Traeger, Demopolis, for appellee.
   PATTERSON, Judge.

Appellant, Thedford A. Huguley, was found guilty by the Municipal Court of Demopolis, Alabama, in three cases for negotiating worthless negotiable instruments in violation of § 13A-9-13.1, Code of Alabama 1975. Appellant was sentenced to pay a fine of $100.00 and court costs of $22.00 in each case. She appealed to the Circuit Court of Marengo County, where the cases were consolidated and tried de novo before the circuit judge without a jury. The circuit judge found appellant guilty in all three cases, and sentenced her to thirty days' confinement in the county jail in each case. He further ordered her to pay a fine of $200.00 and the court costs in each case. From these judgments of conviction she appeals. The cases are consolidated for appeal by agreement.

Mrs. Huguley owned and operated a record business in Demopolis, Alabama, at 811 E. Pettus Street, known as “We’ve Got It Records”. She occasionally purchased merchandise from Music Center Record Distributors of Birmingham, Alabama (hereinafter referred to as Company).

It is undisputed in the evidence that appellant purchased deliveries of records and tapes from the Company on three separate dates in August of 1983. Three checks drawn on the Robertson Banking Company of Demopolis, on the following dates in August, 1983: August 5, $257.85; August 12, $277.48; August 23, $281.18, in payment for the merchandise were returned unpaid for insufficient funds.

It appears from the record that the checks were presented for payment within thirty days after delivery, and payment was refused by the drawee for lack of funds. Mrs. Huguley’s name and the name and address of her business were printed on the face of the checks. The name of the bank, Robertson Banking Company, and Mrs. Huguley’s account number were also printed on each check. She prepared and signed each check, and received the merchandise in each instance.

After all three checks had been returned unpaid to the Company, it posted a letter by certified mail, return receipt requested, to Mrs. Huguley at the address of her business printed on the face of the checks. The letter advised Mrs. Huguley that the three checks had been returned unpaid due to insufficient funds, and gave her notice that she had ten days to make the checks good or criminal proceedings would be commenced. The letter was delivered to Mrs. Huguley’s address, 811 E. Pettus Street, Demopolis, Alabama, on September 10, 1983, and receipted for by Octavia Rowser, the young daughter of Mrs. Huguley.

Mr. Virgil Lugar, Jr., general manager of the Company, testified that he called Mrs. Huguley on September 27, 1983, about the checks, and she agreed to make them good by paying $100.00 per week by check until the amount was paid in full. No such payments were ever made.

Having received no payments, Mr. Lugar journeyed to Demopolis on October 18, 1983, and made an effort to locate Mrs. Huguley. He visited her place of business, her apartment, and the bank, but could not find her. He then obtained warrants for her arrest for negotiating worthless negotiable instruments. She was arrested later that day.

Mr. Lugar further testified that the following day, October 19, 1983, Mrs. Hugu-ley came to Birmingham, and paid the full amount of the checks in cash plus ten dollars service charge for each check. He stated that he gave her a receipt for the money, but mistakenly dated the receipt October 17, 1983.

Mrs. Huguley denied receiving the letter from the Company notifying her that the checks had been returned due to insufficient funds. She admitted, however, that her daughter, Octavia Rowser, worked for her in her business.

She testified that she had called the Company in September and told Mr. Lugar that the checks were going to “bounce” because she had to use the money in her account for an “emergency”. She further stated that she made arrangements to pay off the checks.

The record reflects that Mrs. Huguley was arrested on October 18, 1983, pursuant to the warrants issued by the Municipal Court. W.W. Dinning, Jr. testified that he was the judge of the Municipal Court of the City of Demopolis, and that Mrs. Hugu-ley called him on the telephone from the police station at the time of her arrest on October 18, 1983, and told him that there had been some “mixup”. He further testified that she told him that she was expecting a check from a law suit in Selma, and when she got the check she would use the money to pay off the checks; that all she needed to do was drive to Selma, and get the money from her lawyer. He further testified that the next day, October 19, 1983, she came to his office, and told him she was going to pay the checks off that day. He stated that he told Mrs. Huguley that the warrants had been signed, a court date set, and she needed to be present in court at the proper time. Mrs. Huguley denied telling Judge Dinning that she was expecting a check from a law suit in Selma, and also denied that she told him on October 19th that she was going to pay off the checks that day.

Mrs. Huguley testified that she mailed the full amount in cash to cover the three checks to the Company on Friday, October 14, 1983. She stated that she wrapped the money in paper and mailed it without having it registered or certified. She stated that she went to Birmingham on Wednesday. October 19, 1983, to get a receipt for the money, and when she arrived, Mr. Lu-gar told her he had received the money. She testified that he gave her a receipt dated October 17, 1983.

Mrs. Huguley claims that she had the funds in her account to cover the checks at the time of delivery, but when the Company waited until the end of the month to present them for collection, there were insufficient funds left in the account to cover the checks. She also claims that she paid the full amount due by mail, and that the company received the funds on October 17th, the day before the warrants were obtained.

The primary issue raised by appellant on appeal is whether there was sufficient evidence to establish the requisite criminal intent required for a conviction of the crime of Negotiating Worthless Negotiable Instruments in violation of § 13A-9-13.1, supra.

Section 13A-9-13.1, provides as follows:

“(a) A person commits the crime of negotiating a worthless negotiable instrument if he negotiates or delivers a negotiable instrument for a thing of value and with the intent, knowledge or expectation that it will not be honored by the drawee.
“(b) For the purposes of this section, it is prima facie evidence that the maker or drawer intended, knew or expected that the instrument would not be honored if:
“(1) The maker or drawer had no such account with the drawee at the time the negotiable instrument was negotiated or delivered, as determined according to section 7-3-503(2); or
“(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after delivery, and the maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge of not more than $10.00, within 10 days after receiving written notice from the holder of the instrument that payment was refused upon such instrument, as provided in section 13A-9-13.2; or
“(3) Notice that payment was refused is mailed by certified or registered mail and is returned undelivered to the sender, when such notice is mailed within a reasonable time after dishonor to the address printed on the instrument or given by the maker or drawer at the time of issuance of the instrument.
“(c) Negotiating a worthless negotiable instrument is a Class A misdemeanor.
“(d) The definition of ‘negotiable instrument’ in section 7-3-104 applies to this section and sections 13A-9-13.2 and 13A-9-13.3.
“(e) The definition of ‘negotiation’ in section 7-3-202 applies to this section and sections 13A-9-13.2 and 13A-9-13.3.
“(f) The definition of ‘delivery’ in section 7-1-201(14) applies to this section and sections 13A-9-13.2 and 13A-9-3.3. (Acts 1980, No. 80-200, p. 279, § 1.)”

The Alabama “bad check” statutes have been frequently revised to conform to the contemporary pattern of such laws. The present statute, § 13A-9-13.1 through § 13A-9-13.3 (1980 Ala.Acts 279, No. 80-200, April 15, 1980), replaced § 13A-9-13 (1977 Ala.Acts 866, No. 607, May 16, 1977). Section 13A-9-13, supra, replaced § 13-4-110 through § 13-4-122, Code of Alabama 1975 (1971 Ala.Acts 3958, No. 2479, October 1, 1971).

The present statute, like its predecessors, covers issuing checks or negotiable instruments without sufficient funds or on non-existent accounts. In order for a person to be convicted of a violation of § 13A-9-13.1, supra, it must be proven that the person negotiated or delivered a negotiable instrument in return for a thing of value with the intent, knowledge, or expectation that the negotiable instrument would not be honored by the drawee. It is undisputed that Mrs. Huguley delivered to the Company three checks which were negotiable instruments and in return received valuable merchandise. It is undisputed that the checks were dishonored by the drawee and returned to the Company because of insufficient funds. However, in order to support a conviction there must be evidence of intent, knowledge, or expectation that the checks would not be honored by the bank.

Section 13A-9-13.1(b)(2), supra, provides that it is prima facie evidence that the maker or drawer intended, knew, or expected that the instrument would not be honored if payment is refused by the drawee bank for lack of funds, upon presentation within thirty days after delivery, and the maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge of not more than $10.00, within ten days after receiving written notice from the holder of the instrument that payment was refused upon such instrument, as provided in § 13A-9-13.2, supra.

Section 13A-9-13.2, supra, prescribes the notice requirements as follows:

“For purposes of section 13A-9-13.1:
“(1) Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the instrument or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making, drawing, uttering or delivering said instrument.
“(2) The form of notice shall be substantially as follows:
‘This statutory notice is provided pursuant to section 13A-9-13.2 of the Alabama Code. You are hereby notified that a check or instrument numbered_, apparently issued by you on .... (date), drawn upon .... (name of bank), and payable to __ has been dishonored. Pursuant to Alabama law, you have 10 days from receipt of this notice to tender payment of the full amount of such check or instrument plus a service charge of not more than $10.00, the total amount due being $.... Unless this amount is paid in full within the specified time above, the holder of such check or instrument may assume that you delivered the instrument with intent to defraud and may turn over the dishonored instrument and all other available information relating to this incident to the proper authorities for criminal prosecution.’
“(3) Any party holding a worthless negotiable instrument and giving notice in substantially similar form to that provided in subdivision (2) of this section shall be immune from civil or criminal liability for the giving of such notice and for proceeding under the forms of such notice. (Acts 1980, No. 80-200, p. 279, § 2.)”

In the instant case the record reflects that the holder of the checks, the Company, presented them to the drawee bank within thirty days after delivery, and payment was refused by the drawee for lack of funds. The Company then in accordance with § 13A-9-13.2, gave written notice to Mrs. Huguley advising her that the checks had been dishonored. The record shows that the letter was delivered to the address printed on the checks, which was the address of Mrs. Huguley’s business, and apparently receipted for by Mrs. Huguley’s daughter. The notice given by the Company to Mrs. Huguley met the requirements of the statute. The letter was delivered September 10, 1983, and Mrs. Huguley did not pay the Company the amount due, together with a service charge, within the required ten days after notice. Thus, the refusal of the drawee to honor the checks because of insufficient funds, and the failure of Mrs. Huguley to make them good within ten days after proper notice, is prima facie evidence that Mrs. Huguley intended, knew, or expected that the checks would not be honored by the Robertson Banking Company at the time she negotiated or delivered them to the Company.

Mrs. Huguley claims that she did not personally receive the letter of notice and never learned of it. The statute does not require the letter to be delivered personally to the maker of the instrument, but only that it be mailed to the address printed on the check. Even if delivery of the letter were refused, it would still constitute proper notice under the statute, Ala.Code § 13A-9-13.1(b)(3) (1975).

Mrs. Huguley contends that she made arrangements to make the checks good, and that she paid the full amount due together with a $10.00 service charge on each check on October 17, 1983. The record shows that Mr. Lugar and Mrs. Hu-guley discussed a plan for payment on September 20, 1983, but no payments were made by Mrs. Huguley in accordance with the discussion. The evidence is in dispute as to the date Mrs. Huguley paid the full amount owed on the checks. She claims she made the payment by mail and received a receipt dated October 17, 1983. Mr. Lu-gar claims that she came to Birmingham and made the payment on October 19,1983. Regardless of which date she made the checks good, the criminal offense had already been committed. Later payment does not destroy any criminality that may have existed if the checks were delivered with intent, knowledge, or expectation that they would not be honored by the drawee. Even though the parties may reach a satisfactory settlement of the transaction, the State has an interest which cannot be compromised or settled without its consent. The subsequent settlement between Mrs. Huguley and the Company will not stay the prosecution or prevent the enforcement of the penalty.

We think that the offense is complete when the negotiable instrument is delivered for a thing of value with the intent, knowledge, or expectation that it will not be honored by the drawee. Proving such intent, knowledge, or expectation by the prosecution may be difficult. The prosecutor usually has available two methods of doing so. First, he may always prove the requisite intent by direct or circumstantial evidence. In addition, most insufficient funds statutes contain a section for prima facie proof of intent to defraud. Section 13A-9-13.1(b), supra, is such a provision. It is a legislatively created aid to the prosecution in proving the requisite elements of intent to defraud; or knowledge or expectation on the part of the drawer, either that there were or might be at presentment insufficient funds to cover the check; or that the drawer had knowledge at the time of the drawing of the check that the drawer had no account in the drawee bank. Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975). A showing at the trial that the negotiable instrument had been presented within thirty days after delivery, payment had been refused by the drawee for lack of funds, and the maker or drawer shall not have paid the holder the amount due thereon, together with a service charge of not more than $10.00, within ten days after receiving written notice, in accordance with the statute, from the holder that payment was refused, is prima facie evidence of the drawer’s intent to defraud with knowledge of such deficiency.

The undisputed evidence made out a prima facie case against Mrs. Huguley. She was free to testify and did testify to her intent and mental process to rebut any presumption arising from the prima facie section of the statute. Tolbert v. State, supra; Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974). The weight to be given her testimony would rest with the trial judge to determine whether her testimony is true or false and to accord it such weight or probative force as in his judgment it is entitled to.

The rule is that a judgment of conviction by a court trying a case without a jury must be affirmed where this court could not say that the conclusion reached by the trial court was clearly wrong or so contrary to the weight of the evidence as to be manifestly unjust. Haney v. State, 33 Ala.App. 524, 36 So.2d 116 (1948); Edmondson v. State, 30 Ala.App. 433, 7 So.2d 508 (1942). The weight and sufficiency of the evidence and the credibility of the witnesses are for the determination of the court below, and if there is evidence to support the judgment it will not be disturbed. Haney v. State, supra; Edmondson v. State, supra; 22 C.J.S. Criminal Law § 401(5) (1961).

The facts as disclosed by the record in this case were ample in our opinion to warrant the trial judge’s finding Mrs. Hu-guley guilty, and to sustain the judgment of conviction pronounced and entered. The trial judge having concluded the issue against Mrs. Huguley, and this court not being clearly convinced that to allow the conviction to stand would be manifestly wrong or unjust, the judgment of the trial court should not be disturbed.

It follows that the judgments of conviction from which this appeal is taken must be, and they hereby are, affirmed.

AFFIRMED.