Russell v. State Court Opinion

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v.

in

V* P lt"'y'
RUSSELL v. STATE

rhe foregoing opinior p;il;#;*i.T*l:.: .=r, 
Ara 343

thc Honorable JOSEpH J. MULLINS, ;
rerired circuit Judge, servingas 

" ^;;J"; :I _t;:i tril:":il:ffi,[r"i:l'fJj$"i"::
:lll:?Tt; *',:1,,., 

is hereby adoptfd as timony d,i ;;;;;;;;r th.ew vicrim into
?he judgment below is hereby affirmed. :[:l;:,:r."J:i'f,.::j'";r, ;;;;:
AFFIRMED 2. Criminal Law e5,n711;

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James lll. RUSSELL, alias

v.

STATE,

6 Div. 749.

(.lourt of Criminal Appeals of Alahama.

Dec. 19, 192g.

I)efendant rr.as conr.icreti in the Circuit('r,rrn, Tusealoosa Coun1i.. Clautic ff r*1.,,lr. J., of rnurder in thr. sceond ,j;;;;,;;;
h,. alrl,t.;rl.,d. The Courl. .,f Crirninal Ari-
lx.rrls. Harris, p. J., hela that: (i;;r;il;;rrri: suffit,icrrt to support a conr.ictiorr: (2)t",urt prult,r].t refused defe;;dant,s 

""qr".ilrrl <:harges basc,ri on assumption thar riit_ht':1i 11'g* an acc,lmtrlic
,,,', t o ii. i,- : ;; ; ; i 

"l 
;:'; ::.:. l1';; r";, il;: lttt15 rk,fendant to niahe unwirrant.ed excur_sr{rn rnro-work product of investigating o}}i-tr'r. *hich consisted of B0 Lo SO pig"r,'J""Itr-rufemetl to his report on witness stand

;:,;".:],l,l.rwo innocuous purJ)oses, viz., to
:..1,:,:. 

hrs m(rrnon as to tinrt. that thc caii...,r..1r,. 
.ro ilr(, crime was received by him

::]l:, 
,,, dert,rminc who wa^s prtrsent at rhe;r r r to1rs1,.

.,\ f firm.:ql.

HARRIS, P. J., AN<I TYSON, DCCARLO l11T}*!ffi:1ilI1;T:i"i3,rff,7and BOOKOUT, JJ., concur. h"ru treu;..i;.di"d-;;n convicted for of-
BOWEN, J., coneurs in result. fense eharged, either as principal or acces-

sor.v.

3. Criminal Law e74212;
Determination of wherher a witness isan accr.implicc is a questiori of law initialtvdirected to trial jud- e. 

--" ""!'orrr'

{. Criminal Lar.. e=74g;",
\4,here there, is co:fi!"r ir;g er.idenr:t: onquesi-ioli of u,itness' c,r:"n:,iicitl,. _ ,,re"i""of fact is grresenrcd f,.,:^ ri, ;uii.... 

''"''''"'

5. Criminal La* e.5677
Burden is on riefen<iant to shog, thatanother person was an accomplice to thecharged crime.

6. Criminal l,diw *S07th, Zg0(l)
In prosecution for murder in the seconrldcgree, evidenee cr-,nsisting .,11".,i"','"r"

that q-itness harl told tl,. ,i",,,,r.J ;;;i
u,1l or s):e 'a,as Foir,g t. |;;-r,,.1. .t.f"n;;;;throu' hinr in thc. river rr.ould not ou.runifinding that witness
the chargetr ."i..",,a1 ii j:",Hiljli.ol;
::l :* in rc,fusing dcft,nili,nr,s ..qr".;j
enarg'(,s bascd on assur:;rljpp that uitnessrras an accompliee.

7. Criminal Lan e,117gyr11;
\l'hiic cc.rrt's: refusli tt, 111,16j1 defense

counscl to see and elirnltnr. 
", rn"ruarn,ium

used [r.r..R.itness on st.iu;ri 1o refresh hismernor-v constitutes rever-;ii,ic error, .Ic,t theruie is subject. to reason.

8. Criminal Lan, e=627.g16;;

. In proseeution for murder il the second
jegree, trial court i4,e^s coir€rr1 in nnt ailow_ing defendant to make unu.arantcri e\cur-
sion into,work proriuct uf inrcsL;faii;;;ffi-
cer. rvhich consisted of Bt) to 50 l;g;.:"j,;;

,.4



U4 Ala. 865 SOUTHERN REPORTER" zd SERIES

he referred to his report on the witness
stand for only two innocuous purposes, viz.,
to refresh his memory as to the time the
call relative to the crime was received by
him and to determine who was present ai
the autopsy.

and spent the afternoon ,,riding 
and drl*-iing." " -- -'*'iji

According to the testimony of Mr. Coot*,].
they ended up in Tuscaloosa and *";;;'j :

I)r. H

that, ot)

,ttl ,tutr '

thost ta
t'xamin:
showed
s'ith th(
dou'n a :

bruise o:

asph;'xii
snd tissr

Suett'Tr

0n cr
frerl thal
of .1Il u,
to su'im
Ht' f urt
tu'( i\(' ',

h;.ii h.rir
t iol i.P4
rrrt lr tall
malt',

Jim B
that tht
sample r

Jrcstmort
alcohol l,

in i r r.1iii1r

tt,:tifie,i
<ln,d an.l
rnche: ta
of al)p,r,
tu'elve tt
half hour

Ron Fr
kxrsa Coi
11, 1977.
officer s;

Daniel's r

appearal
apgrr.llant
he u'as n,
the office

Don La
(.'<runtr,, t

- Crcek on ,

nr., with
Lake ma,.
cluding d
e mbanknr,
W& s nrr.c

Joel L. Sogol, Tuscaloosa, for appellant.

_ William J. Baxley, Atty. Gen. and Jean
Williams Brown, Asst. Alty. Gen. for the
State, appellee.

HARRIS, presiding Judge.
Appellant was convicted of murder in the

seeond degree and his punishment was
fixed by the jury at fifteen years in the
penitentiary. At arraignment, in the pres_
ence of his counsel, appellant entered a plea
of not guiltl'. Followins sentcr:cing, he
gave notice of appeal. An appeal was or_
dered in forma pauperis, wheiein appellant
is represented by trial counsel.

Appellant was charged by indictment
with the unlawful killing u.ith malice afore_
thought but without premeditation and de_
liberation of James L. .,pop" Loden, by
pushing, throwing or otherwise causing him
to fall into a body of water or the ilack
Wamior River wherebl. he drowned.

Appellant alleges two points of error in
the actions of the trial court: (l) That the
trial court erred in refusing to charge thejury on the law of accomplices and (2-) thatit was reversible error to deny appeilant,s
request to examine the portion of a police
report used by a witness to refresh his
recollection. The sufficiencl, of the evi_
dence is alst, raised by means of appellant,s
motion to exclude the State's evidence and
request for the affirmative charge, both of
whieh were denied by the trial court.

The chief u,itnes.s for the State u,as Gail
Cooley. Ms. Cooley testified that, on Sep_
tember 10, lg??, she and appellant, along
with "Pop" Loden, Cliff Holmes and Sonni
Bishop, Ieft the Crescent Rooms Hotcl in
Bessemer around l:30 or 2:00 in the after-
noon. The five left the hotel in Cliff
H,olmes'car and Sonny Bishop was driving.
The1, stopped and boughr heer an,i u,ini,

"place on the river." Bishop t"H M;. # . #
ley, appeltant and Loden to-gut ori;f;; 

",.J,[]car and he and Holmes drove down il iSroad, leaving the three at the river. Xrfr',#t
lll'#fi "'':l'*'^'|:.:i,1:u' :E "lo ;;! $;ing for the others to return, tf," a*oil i#
began complaining and appellan, ;lifi
to shut up and that if he didn't .f,ut ,p.-fr ,1"u.*

was going to throw him in the rive.. ''ui l:1
Cooley testified that Loden *rrirr"a} i. .

g9m{ain and appellant jumped ,p, Sr"tb.d 
' ,;,

him by his anktes, draggeri tir'or[i-Jfi ,ir
threw him in the river. She ran orur, oi '..

him in the wakr, and started *..rino
At 

,that 
point, Sonn1. Biship .rr* -;;i;";track to the river.

_ Ms. Cooley testified that after James
Russell threw the victim into the river, ie
said, "Let him drown.', Then he picked uphis bottle of uine, walked back over 

-ii

where he had been sitting, and continued tod{nk. Ms. Cooley testified that she wrs
still screaming and that Sonny Bishop told
her there was nothing the1, could ao. Sf,u
and Bishop walked back to the car and left
u'ith CIiff Holmes, Ieaving appellant at the
scene. Later that night she reported the
incident to the police and returned to the
scene on the following da1, with Officer
Don Lake, an investigator from Tuscaloosa
Countl'.

On cross-examination, Ms. Cooley denied
having argued with the deceasej, ,,pop"
[,oden. that afternoon and stated that sire
did not hear appellant argue with Mr. I+
den. She testified that she drank between
trvelve and fourteen beers during the courc
of the afternoon and that qbr:-was five feet,
four inches tall, and weigied one hundred
and forty pounds. She denied that she told
Loden to shut up or she would have some
one throw him in the river, and that appel-
lant had aetualll' said, ..Let him swim,; not
"l,et him drown." She stated that all five
members of the group were ,,pretty drunk,"
and there were parts of the hav ,hu di,tn't
rcmember at all.



and drink-

Ms. Cooley,
I went to r
ld Ms. Coo-

out of the
down the

v'er. While

I and wait
re deceased

rt told him
shut up, he
river. Me.
,ntinued to
rp, grabbed
t over, and
1 OVer, saw

screaming.
ne running

Iter James

re river, he

: picked up
ck over to
ontinued to
rt she was

Bishop told
ld do. She

rar and ieft
Iant at the
:ported the
'ned to the

ith Officer
Tuscalmsa

rley denied

sed, "Pop"
rd that she

th Mr. l,+
tk between

: the coune

s five feet,

re hundrcd
rat she told

have some

that aPPl'
swim," not

rat all five

tty drunk,'
she didnt

RUSSELL v. STATE

Dr. Henrv Sanrina, r:1T,d;:;#:;^-r,ffii;1T,". officer r"*",:':;,r,::rhat, ,n Seprember 11, r9?2, he performed phob;;;i'"i", 
", 

the postmortem exam-an autopsy and identified photographs as inatioi * tr,ui 
"i-the body removed fromthose taken of the body at the poitmortem the river.examination. The external examinatior

showed abrasions and contusion. 
"onrirt"nl 

Danie.l. Brarton, son_in_law of the de-
with those which might be sustained rolling .TIT,:ll",rtified.the photograph previously
dou'n a rocky embankment, and there was I loentllted by officer Lake and Dr. Santina
bruise on the head. The cause of death was as rhat of the deceased, Larkin loden.
asphyxia, consistent with drowning. Blood Gail Cooley was recalled for further
and tisSue samples were turned over to the cross-examination and denied tollingso;;;
state Toxic.logist. Bishop on the drive back t" B"-;;;"; tl;;

On cross_examination Dr. Santina testi_ appellant.,must have pushed pop in lt"
fied that a person with a blood 

"f."i"l l"""1 river" because she didn't think rf,. aia.
of '23.would be quitt drunk and that abilit.t' Sergeant ?om Edrlings, of the Jeffersonto su'im would be substantialll impairei. Countl' Sheriff's Department, testified forHe further testified that consunrpti,ln of the defense that, some time aftcr t,0g a. rntu'e!r'e to fourteen beers in a thret and a on Se|tember 11, 1g77, he sau.Cair C,_r."hrtlf hour peri.d would 

-affect thc perceir- at the Bessemer pori.; D;;.,;;;,. :;:tion and coordination_ of a fir.e. foot, four appeared to be inloxicated and,"fi liairr.
::ll ""' 

one hundred anrr fort.r' pound fe- what had happenerr the previous J".,; ;;;mal(.. tueen appellant ancl the deceaseri. 
, 

S";_
Jinr Britton, State Toxicologist, testified geant Eddings testified that Ms. Cooley had

that the results of the test In if," Uooa diffieulty relating the facts .na 
"pp"*Jsample received from Dr. Santina at the confused. On cross-examination, iifairs.

l)ostmortem examina'.ion shou.ed a blood testified that her story never varied as io
alcohol Ievcl of .Zl, which u.ould inrlicate q'ho actuall-r' pushed Loden in tf," J"""
into.ri<:ation. On cross-cxamination, Britton Thr. testimonl' of Henry. ,,Sonn\.,, 

Bish.pt't'stificri that a fcmale rveighing one hun- !r'as substantial)1'the same as thar of Gaildrt'd and fortl- lxrunds and fivc- ie,ct inur 9^,-r:i_*c;.;;r; ii," 
"runt^" 

of Septembcrinches tall would have a blood alc,ohol lerel 10, lgz7, e-xceptir,"i-r," did not witness the,f 
,al4rroximately .gB 3fte1 "nnrr.irg aJreggd a"o"ri,g.-- He further testifiedt'*'elve to fourreen beers in three and onel thaiMs. c*lqr. iiia him that.,she had toldhalf hours. 

l:p * ,f,ut ,p ;; .;" was going to have

, Rr.,n Fulsham, Deputy Sheriff of Tusca- Jim throw him in the river.,' tt o,., Sirt,_ttx'sa (lountJ', testified that on September op's opinion that all those prescnt, includingll' 1977, around 2:lS a. m., he anrl anothcr himself, were intoxicate<i.

:,tt't":. saw alrpellant, James Russeil. at Appeilant, Jrr", Rr..oil, testified in hisl)anirrl's creek on the \{rarrior R;r... H" own behalf. His version of the event^s .faplrcarcd to bc, drunk. The officers took September fO, lgZil'*"s sutrstantialll, theappcliant to tht' Tuscal.osa countl' .loii, r,rt .,,i,;;;;f*" rr.itnu.r"s untir the pointhc u'as not arrested' Appellant uent with at which he got out of the car at the river.lhe officrers voluntarily. It was appell-ani,, i"*i.ony that he got outI)on Lahe, Denutv .Sheriff of Tuscaloosa of the car, ,"t ao"ln, arank some wine, anclcountl', testified ttrat tre wcnt to nori"i,, u'ent to sleep. The others returned anrl(lrcek on September 11, lgzz, around g:00 a. said the.v o'orta u" back later to pick him
ili.lll ,:,hcr officers and l\Is. Cooley. up. The next thing he knew, the d";r;;;
,.;l: ,":u photographs of the scenc, in- czrme to pick him up.(rrr(lrng drag marks leading to t6" .1r.. Appellant testified that he did not throw.nrbankment ancr down t, the rir.er. He an},one into the river or see anvone thrownu'.s prescnt when the bory'was ...,rrn*,I in the rir.er, ona tiut-t,o u.ar..prett.y w.rl



346 Ala. 365 SOUTHERN REPORTEB.2d SERIES

intoxicated." On cross-examination, appel-
lant tcstified that only he got out of the car
at the river and that Gail Coolev and Loden
left with the othcrs.

Sonnl' Bishop was recalletl for further
cross-examination. He testified that appel-
lant, Gail Cooley, anri Pop Lodcn all got out
at the river, and he and Cliff Holmes left
together.

tU The State presenled eyewitness tes-
timony that appella.nt threw "Pop" Loden
into the river, carrsing him to drown. The
tbstimony of appellant controvertcd the
eyewitness account. Conflicting testimony
presents a question for thr, jury as to the
defendant's guilt. The jury resolved this
issue against thc appellant. Morris !'.
State, 47 Ala.APp. 132, ?51 So.2d 629.

Aplrcllant exceJrtt:d t<l thc Court's oral
charge duc to failurc to charge on the lau.
of accomplices and rcqurrsted the follou'ing
charges, u'hich were refused:

there rs conflicting evidence on the question
of complicity, a guestion of fact is presented
for the jury. Leonard v. Statc, rl3 Ala.App.
454, 792 So.2d 461; Fairbanks v. State,4.g
Ala.App. ?36, ng So.2d 908.

the deceased to "shut up or she was going,
to have Jim (appellant) throw him in the .,

The only evidence presented at trial tend-,.:'
ing to show that Gail Cooley was an 

"."sm- 
:ll

plice was the testimony of defense witness
"Sonny" Bishop that Ms. Cooley had told

..DEFENDANT'S

CHARGE NO.2
REQL'ESTED

"I chargc you, members of the jur.r., that
you can not convict James Russell on the
uncorroborated testimony of Gai] Coo-
ley."
..DEFE](DANT'S

cHARGri N0. 0

REQt'ESTEI)

"The Court chargrs vr-ru, members of thr
jury, that the Dcfendant cannot be con-
victed upon thc te:stimony of Gail Cooley
unless coroborated by' testimonl. of u.it-
nesses as to material elements of the of-
fense, and that unless -"*ou find such cor-
roboration you may not find thc Deftnd-
ant guilt.r, based on that testimon.v of Gail
Coole.i.''

Appellant contends the trial court erred in
refusing requested charges 2 and 6.

[24) The test for determining rvhether
a witness is an aecomplice is u'hether he or
she could have becn indieted and convicted
for the offense charged, either as principal
or accessorv. It[i]ler v. Stale, 290 Ala. 248,
275 So.2d 675. This determination is a
question of law initialll,directed to the trial
judge. Strange r'. Srate, 43 Ala.App. Sg9.
197 So.2l 437. On the othcr hanri, u'htre

river." This evidence was in conflict with':]
Ms. Cooley's testimony that it was appellant 

-:;who told Loden to "shut up or I,ll thmw :-

1,ou in the river." ,,

tsl This issue wa-s submitted to the trial ..

court on a motion to exclude t-he State's "l
evidcnce as based on the uncorroborated
testimonv of an accomplict:. The Court
found that evidencc dc.monstrating complic-
it.y had not been presented anrl overruled
the motir-,n.

The bur<lcn is on the defendant to show
that another l)erson was an accomplice to
the charged crime. There is absolutely no
evidence even tending to show that Ms.
Cooley \\'as an accomplice to this crime of
murder. After appellant dragged the vic-
tim dou'n the embankmcnt and threw him
in thc u'atcr, Ms. Coolel' screamed for help
anrl thaL *'as her onl1. connection with this
crime. Siarpe v. State, bl Ala.App. bB4,
2E? So.2d Zl5; Snowden v. State, Zl Ala.
A1r1r. 14, 165 So. 410; Darr^s r. State, ?57
Ala. 447. 59 So.2d 592.

16l Thc trial court did not err in rc-
fusing appellant's requested charges based
on the assumption that ItIs. Coole.v was an
accomlrlice as a matter of law. According
to appellant's orvtl Lestimony he did not
throu' the victim in the water and he did
not knou' thc deceased wa-s thrown in the
\.\'atcr.

Appellant further eontends that the trial
court erred in refusing to allow him to
examine that prrtion of the inv6stigation
filc referred to on direct, examination by
Offieer Don Lake to refresh his recbllection.
Officer Lakc had u'ith him on the witness
stan<l his invcstigation file, consisting of

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RUSSELL v. STATE
Clre.s, Ala.Crlpp., 38i SoJd 341

Ala. M7
restion

sented

a.App.
fie,4$

I tcnd-
IoCOm-

dtnees

d told
going
in the
t with
rcllant
throw

re trial
Statc.'s

orated
Court

rmplic-

mrled

r show

Iice to
ely nt,

ri, l[s.
imr of
re vic-
w him
rr help

Lh rhis
r. 534,

7 Ala.
le, ?51

in re-

based

['as 8n

ording
id not
he did

in tle

Le trial
rim to
gation
ion bY

ection'
litness

ing of

some thirty to fifty pages. On cross-exami- "THE COURT: you have anything tonation, Lake testified that he had referred ask him, Mr. Smith?to the first page of the report, which was a ..Mp ;;;;";::"
synopsis .f 

-the 
file, and to the page con- 

"MR' SMITH, Yes, sir'

."rnirg the autopsy. Appellant requested "EXAMINATION BY MR' SMITH:
to examine the pages reierred to lv f,"t. "Q' Don, did you use any part of your

The witness was examined outside the 
report, a summation or a summary of

lresence of the jury and it was determined lou-r own work product when you were

lhut h" refered to his report to refresh his [on] the stand?

memory concerning what time he received "A' The only thing I looked at was the
the cali to go to th"e scene, when the autop- filt nasg' a synopsis, and most of my
s.t' took place, and who was present. The looking through here u'as in anticipation
Court refused to allow appellant to inspeci of questions to. come. I was trying to
the report and appellant excepted to this prepare myself for questions to come.
ruling. And thc onlv othcr page I looked at u,as

For a better underctanding of the issue
Jrresented u'e quote from the record:

..CROSS -EXAI{INATION BY MR. SO.
GI)L:
"a Don, during the casc, of .t.our testi-
monl'--during the course of your lestimo_
n1' on direct, did you refer to ].our case
report?
"A. Yes, sir, I have.
"IIR. SOGOL: Your Honor, at this timc
u'e uoulri request an oplrortunitl, to ob_
serve those things which Mr. Lake has
rcferred to in his report.
"MR. HUDSON: your Honor, we object
trt 6y,, search of the officer's report. We
would not object to him looking at any
pages that the officer said that he re_
ferred to to rcfresh his memorl. in this
casc'r*r..+

"THE COURT: We're going to Lake u1r
the matt.er of thr request to examine thc
case re,1rcrt of the officer matle just prior
to our recessing for lunch. Alright, if
.vou uould, state your motion again, Mr.
Soo,rl

"I!IR. SOGOL: your Honor, during the
({)urse of dircct testimon.y, I obserr.ecl Of_
f,<'er Lake referring anil going through
nls cas(r r(il)ort. I har.e no u,av of knou.-
ing eractll' uhich pagcs ht, referretl to or
an]'thing like that. I u,ould like the op_
;tortunitl' to go over tht, report for cross_
cxamination at this lxrint. \\'e fccl that
strtct' hc has uscti thc rcport to rt,frcsh his
Ilremor),, I have a right to look at it..

thc part concerning the autnpsy. I
r.r,asn't cxactll' sure of thr, timc u*ren the
autopsl' took place, and that's what I u,as
looking for.
"Q. Those are the onl.r. pages that you
looked at?
"4. Yes, sir, I looked at the first page of
the synopsis to determine exactlj. ihen
the calls came in, that information, and I
further Iooked to see the time as to when
thc autolrs1. u'a-s and u.ho u.as present at
the autopsl'.
"a Alright.
"THE COURT: Alright, how many pages
are contained in that report, Mr. La[e?
"MR. .LAKE: The.y aren,t numbered,
somewhere in the vicinitl. of thirty to
fift"v.
"THE COLTRT: pages?

"IttR. LAKE: \'es, sir.
"THE COL]RT: As I untlerstand from
your testimonl., that vou referrecl to them
spc,cifically a couple of times to get dates
and times?
"MR. LAKE: yes, sir, I looked at two
different pages specificalll,. I had t<r
turn through thc whole thing. This thing
is not in exact order as I taid it out. so
when the secrerary typexl it up, she had
some things that are not in contcxt, and I
Ir.ad- 

to l<xrk througlr thc whole thing to
find what I u.as looking for, but I lookea
specificalll' at tu'o p:rgcs. tu,o different
paAes.

"THE COURT: That wis for <late anil
time?

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348 Ala 365 SOIITHERN REPORTER, 2d SERIES

"MR. LAKE: Yes, sir, and to rletermine

who was ltrescnt at the autollsv'

"MR. SOGOL: Your Honor, I trelicve

that Don has stated as far as looking at

that particular point, he looked u'ith ref-

erence to the sutopsy thing to sec u'ho

was there, but I believe he's also stated

that he l<nked at the first pagc oi the

synopsis. \\'as that mercll' to get a da*'e

or to refresh Your recoliection?

"I{R. LAKE: That was mcrt'h'to rcfresh

m1' recollection tht: time, tlie iimes that

the cali came to me.

"THI;l COLTRT: Well, I'ii ovcrrule thc

rr.rluest. I rir-rn't think an iso)aterl check

uoultl cntitle you to perus(' ir thirtv to
fiftl' page work Product'
"\1R. CHAIiITLER: Y<rur Honor' coulrl

u ( a:l". ;r i'(,u1rle more qut's"iotts'

"THL C()t'RT: \-es, sir'
..EXA}IiNATIO]i BT }1R. CHANDLER:

"a. Don, you testified that vou looked

through thc report in anticipation of

questions that 1'ou erpecred rvcrt' lrrrth-

t:onring'l
"A. Y,'.. sil'.

"a An,l v.'4,' llrrrt 'lt:rin.r' llrt t':rtir' t nr'

that tou wcrc on the sranrl, or tht' tnaiL'r-

ity of the tinc?
"A. Tht' qtrestion's not exactll' clcar' l\1r'

Chandler".

"a $'tll. 1'ou jusr testified that 1'ou had

toc,tua through, that l'ou hatl looketl

through Yotlr reporl tltt t'cclision in anttct-

patiort trf tlucstlons thilr"\'ou thought

u'oultl lx'fortherlrning, is that corrcct'?

"A. \\'hat I u'as concertred '* ith u'as the

time of nrl' notificati'on and thr: timc of

the auto1,s1" r'l'ere the onlt' trro things I

wasn't exactlv sure of, and I u'as antici-

pating hcing asked those' slrt'cific ques-

tions.
"a Alright. Antl is tiiLt the onll' trvo

things that you refreshed 1'out' remem-

brancc of'l
"A. Ycs, sir.
"MR. CHANDLER: Tii:rt's ali'

"TllE ('OtlIiT' -{lright. I l'clit'vt' thc dt'-

ft nst' hlr. a ('('li\ (tl th( ilt)t(\lts\ r'('l'(r'f i(
,5"1 noi. c()rr(lc'.']

"MR. SOGOL: Yes, sir, we also have r l-;,"'

copy of the statement which Mr. Lake ir.
triok from IIr. Russell. .,,ii'
"THE COURT: Alright, I'll ovemrle ttre il:: ri:

request to inspect fvf.. iut"t repo.t. - ", ti
"MR. SOGOL: We would respectfullyer-.':' "ij,
cept, Your Honor." ''l+'
It is to be noted from the above quoteit lf

excerpts that appellant had been furnishd

copies of the autopsy reyrrt and appellant'r

statement. Officer Lake did not testify to

an1' other material matters relating to the

offcnsc' for u'hich appellant was on trial

that uerc in anl' manner harmful to him

til As this Court said in Cooks r'. State.

50 Ala.Ap1r. 49,2i6 So.kl 6114:

"While it is true that a court's refusal to

permit defense counsel to see and exam-

ine a memorandum used b1' the witness

on the stand to refresh his memory con'

stitutes reversible ercor, (McMurt'rey v'

State, M Ala.APP. 658, 219 So'2d 414;

Ilt,nrl' r. Slate, 46 Ala.APP. 1?5, Eg

S,i.?l 31f t .t't't the' rult is subjecrt to n'a-

sori anrl tht' rvhole of thc record convinces

rus thi-t'. thcre u'as no crror in this ruling

of the Court.

lrlierll

" (EmPhasis suP'

tSl We hold the trial court was corect

in not allou'ing appellant to make an un'

warrantetl excursion into the work producl

of thc investigating officer in this casc'

rr'hich consi-"tcd of thirtl'to fiftl'pages'
u'hcn hc referretl to his report on the wir'

ness stand for onll' tu'o innocuous purposes'

viz., to rcfresh his memory as to the time

thr call rclativc to thc erime was recelve0

trl' him and to determine *'ho was present

at the autoPsl'.

Ir{c have carefulll' searched the reconl for

errors injuriousll' affeeting the substantla

rights oi the appcllant anri have found

nonc.

The judgment of conviction is affirmrrl'

AFI.'IRMED.

.{ll thc Judges con('ur'

t
t

t
I

Juni<

S'

6t
Court of Crimina

Dec.

])t ft'ndant u'a--'

Courl , Tttscaltiosa
rluitt, .1.. t,f ra1rc anr

,,f (';'trtinill Aplx'als
'. rrirl ( ()ur'. l)rrl1rg1l1
rq ut,sliott:: c,llltctrriil
r\,ii rt i(, n -.li t[)s of I )

l,{ rsons other thi
1|1,rugh charges r
ut'rt. correct sLatet

I)r(,llrrlv refused L

anrl substantialiy
charge to jur-t'.

Af firmed.

L ( onstitutional I
(lonstitut it;nai

n,il tit. <'onsidr.red I
tio11 11J thc cause.

L. Ilape e40(3)
Irr irrosecrrtiu

1,r",,1,trrlv sustaintr
., r:uul rtllrtions ar
cu,,r'i:: rvith namcr
l'r.ntlant.

l|. (lrinrinal [,aw (

If ruling of
;rn-r rcason, it wiil

{. ('riminal l,aw ,

Though charl
:r l t tt t.rt. (.orrdct
\t r'it. lrr,r]rcrh r(,
f:ririr. lrnri sulrstlr
,,r:rl ehiirgc t() jrlr

il it.ltrit,l (-()rlt \\'r
'l u rcirioos:t, ftrr ai