Russell v. State Court Opinion
Working File
December 19, 1978

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Case Files, Bozeman & Wilder Working Files. Russell v. State Court Opinion, 1978. a2ce999e-ee92-ee11-be37-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1a85e5b5-7b07-4f21-9c57-3e5f64a94bec/russell-v-state-court-opinion. Accessed April 27, 2025.
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s8 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; rt rt >f lt a t- d t I o I 5 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 I I II ! ] I L t I I Ii;l,.I"t 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? i,l t 1i a' l' 'i + i. lr h t: ,lr lr t: n: J' ;1 It I ,i t, ' , i I i ? I I i 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