Assured Investors Life Insurance Co. v. National Union Associates Inc. Court Opinion

    666 Ala. 270 SOUTEEB,N BEPOBTER, 2d SEBIES

Arenza TH tGPEN

Y.

STATE.

I Dty. tB0. 't

Court of Crirrrinal Appeals of Alabanra.

Dee. I, t9?2.

Thc Circuit Court of Mobile County,
Hubcrt P. Robertsorr, .1., found defendant
guilty of second-degree murdcr, and he ap_
pealed. The Court of Criminal Appeals,
Tyson, J., held, inter atia, that trial iudge

. correctly denied defendant's motion to
rluash the jury vcnire on grounds that it
did not rcprescnt a r.enire reprcsentative of
the community, that Negrocs $,ere s).stem-
aticallv e-\cluded thercfrom and that per_
sons betvveen the ages of 2l and 3l rvere
systematicaily excluded and substantially
underrepresentcd, u.here there u,as no evi-
dence that the jurl' commission u.as influ_
enced by racial considerations, uor that
different standards of qualification were
applied to the Negro or to the young in the
comrnunity, and where, in sum, therc u,as
no evidence to indicate that prospective ju_
rors were selected on the basis of anything
other than their individual qualifications.

.{f firmed.

L Crlmtnal Law @:a627.6(l)

Trial court acted within its discretion
in denying defense counsel,s pretrial mo_
tion for the district attorney to divulge all
information in his files and all information
he had access to in' police files that was
beneficial to defendant.

2. Crlmlnat Lay @627.6(t), 622.7(2)

Motion of defense counsel to inspect
and copy or photograph any relevant writ-
ten or recorded statements made by cle-
fendants, and to give defendants the result
or reports of physical or scientific tests or
experiments .made in connection with the
cause, was properly denied.

3. Crlmlnat Law e627.91,,

Trial iudgc acted within his discretion
in denying defendant,s motion .to 

inspect
the minutes of the grand jury.

4. Wttnesses F2(t)
Constitutional right to compulsory

process in a criminal case does not operate
in such a ntanner as to compel pretrial dis-
cover)' as to who in fact are witncsses for
the State; rather, the law assumes that de_
fense counsel u,ill act r,r.ith due diligence so
as to have such witnesses as necessary

sor)' process for obtaining such witnqsses,
the defendant is sccured of a propcr pre-
sent:rtion of his casc at trial ; moreoirr, a
searching cross-exanrination is also availa-
ble to the de fenst'.

5. Crimlnat Law €636(3) ,,

In view of thc Iaw applicable to Mo_
bile County, it rvas not improper for the
trial judge to. excuv. several jurors
the venire without t/re presence of &
ant. Code of Ala., Tit. 30, $ 63; Voi
Appendix Sg 543(5)-543(16), 543(lz).

6. Jury e5t3t(lB)

Jurors mal' be qualified on voir dire io
groups at the discretion of the trial courl

7. Jury €t36(4)
Peremptory sriking of the

ll Negroes on the petit jury venire
district attorney was not error in
prosecution of black defendant.

8. Grsnd Juty @zth
Jory @3:t(t)

Defendant in a criminal'casi
constitutionally entitled to demand
portionate number of his race on
which tries him, or on the venire, or
jury which indicted him.

9. Jury e=t20

Trial judge correctly
ant's motion to quash the

i"
a.

grounds that it d
representative of
groes were systel
from and that per
2l and 3l were sy
substantiall-y unde
\\ as ,ro evidence t

was influenced I
nor that differenr
tion were applied
_r'oung in the cor
sum, tltrre t\.as no
prospective jurors
sis of anl.thing otl
qtrali fications.

t0. Jury eil6
Where it does

drce has resulted,
nristakes do not fu
to quash the venire.

t l. Crlmloa, Lau G
Atthough ar'no,

permitted to state
direction a bullet tr;
the deceased's bod1.,
l,cen on the police {
rvho had had occas
than I50 gunshot wo
knorvledge bel.ond
man and u.as thus
state his opinion as
bullet struck deceden
lurv the jau ; moreo
cer was not qualifie
pert, his testimony, t
nonprejudicial.

12. Crtmtnat Lev 651
In view of confli

whether State,s witne
excluding witnesses
until called, and in vi,
to the effect that it is
of the court to allow a
olated the rule to tes
not abuse his discreti<
witness in question to tr



r^.-- ..r.</jr&{,.,si

,,,:A',

IEIOPEN v, STATE

sro.r(is that it trirr rrot rcprcsent r"#tt;l:-:*",r.€=r's(3) 
Ala' 667

rcprcscntativc of the communitl., that \e_
groes were svstcmatically excluded there- 

In mtlrder prosecution, triat court did
from and that pe.sons between tt,. 

"g., oi 
not abuse its discrction in refusing to allow

ij,:l',::,;i":"J::xil3.,ff lj,.i*:,...,,,1IiiiTi-:;':T;::.::::l'#,: j:[{*
\\'as no evidence tr,at tt 

" 
jury commission 

ant' r*here the u'itness was the first person
was jnfluenced by racial consid..",ion., 

to testify for defendant, rvhere no ..,rid.n."
nor that different standards of qualifica- 

at that juncture in the trial had been ad-
tion were applied to the Negro or to thc 

dtrced to warrant a finding that defendant
.roung in the community, 

"na 
.,here, in 

rvas acting in self-dcfense, and r'here the
sum, there rvas no e'idence to indicate that ::11::1.. 

had. instead tended to ,to* 
"g_prospective jurors g'ere selcctcd on thc ba- 

gressrl'e retaliation on the p".t oi defenJ-
sis of anything other than their individrral 

ant' rather tharl strictll' defensive mea-
rlualifications. sures'

t4, Witnesses e236(1, 2)

Beft.,rc a u.itness tcstifies to another,s
gcneral rtputation, hc nrust testify that hetnou's such general reputation or thinks he
knorvs such gencral reprrtation; secondl;in proving a persotr's gcneral reputation,
the question shoulcl be directed to ;. ;,g.;_
t'ral reputation" or ,,general characteri ofsuch per5on apd it is improper t f"if i.
T. f. adject'lve ,,general;, lefore .,r.put l
tion."

10. Jury 6lt6
\\'hcrc jt does not appear that preiu_

dicc has resrrltcd, clcrical o, ministeiial
rnistakes do rrot furnish srrfficicnt ground
to quash the venire.

I t. Crlmlnat Law F452(t), I169.9.

Although a nonexpert wituess ,is not
permitted to state his opinion as to th;
direction a bullet travelled before errt.r,.rg
the deceased,s bod1., police officcr ,uho hai
l,cen on the police force for 12 years andrrho had had occasion to 

"*"-in" *o."than 150 gunshot rr,,ounds o,"l; porr"rred ofknos'ledge bel.ond that of tt e o.airan
man and rvas thus properly p"r_itt"d to
statc his opinion as to the angle at which
lrtrllct struck decedent in the neck, jrst fr._los' the jau,; moreover, even if the of fi_cer was not qualified as a ballistics ex_pert, his testimony, being cumulative, was
nonprejudicial.

12. Crlmtnat Law F66S(4)

- In view of conflicting testimony as towhether State,s witness had violated ruleexcluding witnesses from the 
"ouriroornuntil called, and in view of prio, hofairrf,to the effect that it is within the discretiJno{ the court to allow a witness who has vi_olated the rule to testify, tri"f juAS. jid

not abuse his discretion'in permittfi ;;witness in question to testify. ..t..

',+h*
:s rugl
_ilLt.
").i,!,-.n

:ti-.,i,h-,',r

- ri.:

t5. Wltnessos @396,3g7

\\:here a defcnse rvitness testified ondirect e-ramination that on date 
"f h;;J

cide he saw decedent armed with a shot-gun, and where the witness identified
State's exhibit as being similar to the shot_gun he had seen in decedcnt,s possession,
the trial court properly allowed pror."rror,
on cross_examination, to ask the witness
rvhether or not, at a fornter t.i"l, tfr. *li-
ness had been unable to precisely identify
the 

_decedent's weapon; further,-inasmuci
as the inquiry related only to 

"n "ff.g.ii;inconsistent statement and inasmucn 
"l tn.

transcript of the former trial was used
merely for impeachment purposes, it was
not error to deny defense counsel,s motion
to e.xamine the transcript after the witness
himself had examined it.

16. Crtmtnat Lrw €>BCa(S)

As court in murder prosecution fully
charged jury as to the elements of selfde'_



668 Ala. 270 SOUTEEBT N,EPOR,TEB, 2d SER,IES

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fense, defendant \i.as not cntitlcd to have
that donc again in different langrrage.

+

David H. Coar, Vernon Z. Crawford,
Mobile, foiappellant.

William J. Baxley, Atty. Gen., and Sarah
V. I\fadclox, Asst. Atty. Gen., for the State.

TYSON, Judge.

Thc indictment charged that appellant,
Arenza Thigpen, rrnlavvfully and rvith mal-
ice aforethought, killed James l)erine by
shooting him with a gun. Jury trial resrrlt-
ed in a conviction of second degrcc mur-
dcr. \:crdict and judgmcnt sct punishmcnt
at iinprisonment in thc perritentiarr. for
li fe.

State's witness Preston (ioode testified
that hc rvas with Perine on the date in
question. At about 2:30 p. m., hc drove
with Perinc to Finley's Drugstore, r,r'hich
u'as located in thi: Toulminville area of
Mobile County. According to Goode, per-
ine got out of the car u'ith a shotgun in
his hand and "yelled something up at Fin-
lcl' Drrrg Store." Perine thcn got back in
the car rvith Goode and, after driving oncc
arorrnd thc block, thcy parked in front of
the Ridge Social Club, located near Fin-
le1"s Drugstore.

Goode testified that after about ten or
fifteen minutes, r\rcnza Thigpen came out
of the drugstore and walked over to where
Perine u'as standing in front of the Ridge
Social Club. The two talked for abotrt
five or ten minutes, but Goode, who was
sitting in Perine's car, was unable to hear
what they were saying. Appellant then
left, headed in the direction of the drug-
store; Perine returned.to his car. Accord-
ing to Goode, "He told me to get trnder the
wheel and drive."

Goode and Perinc then circled the block
in Perine's car and returned to a gas sta-
tion where Perine got out, still armed with
a shotgun. Goode testified that perine
again told,him to.circta the,block, and that

ine's automolilc and shoutfd, ,,ii" ,., {jlr$j*,rcadl' shot no rrccd to shoot. him an1,mcrrer.l, ';'ffi$

.\ccording to Goode, appellarrt walked up ,.i.ti'
to I'erine's [rod1' rr-hich la1' sprawled out on ,'.€,s,
the str(.ct and turricd his shotgun on him ll -.
({ioode). (ioodc statcj 

";; 
,,,ril;;; ;il '*'

as hc u,as leaving hc hcard shdts, but
I'rot Ser.$'ho fired thent.

r\fter circling the block, Goode
travelling on Driver Street, saw
lying on his back ncar the curb.
stoppcd, then heard three more
Looking in the mirror, Goode ,,sarv

pen stick a shotgun out of the back o
ble Beasley's car," pointed in the directi,iiii
of Perinc. Goode thcn got out of p*-

Rherc thc incidcnt occurred, and that ht

elvacant lot; the man u'as
next saw a blue Cadillac turn
Driver Street and fiead toward
Street. A second car then appeared of
I)river Strect. According to Kimbrough,
"The nran running across the field tried to
get in this car [the sccond car] and reecbqd
for the door and ft'11." Hc heard th. driOtr:
er of the second automobile say, d

don't kill him, he's already down.f,
u'itness then testified as to hearing
more shots coming from the di
the Cadillac, but did not see who]
them. He identified Preston
driver of the second automobile.

Ella Belle Porvell testified for
that she was in her house on
when she heard shots; shc
and saw a man running acrosi:
Street toward her house. Sho
the man was not armed; that he
ing. She sau' this man approach'
car on Driver Street, reach
and {all to t}re ground. Shc
other man with a long

did

hinr to gcr a\\'a-\. from rhcrt.. *.hich he did. :,''
::,

Rtrdolph Kiml.rrough, callecl as witnesg ..,;
for thc Statc, testif iecl that he liverl near 

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he

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came out of his housc s.hen he heand,l
shots. FIe sau a man s.ith a Surr, f.tfil:i
idcntified as the deceased, running

coming in tlrat ditectiot:



r did

then
'erine

He
shots.

Thig-
f No-
ection

Per-
an al-

nore.

(ed up

out oo

rn him

nt told
he did.

wltness

d near

:hat he

heard

,und 0o

starides
rred on

rbrough,
tried tr
reachcd
he driv'
'Pledd

L" Ttta

ng

:ction
ho

TEIGPEN V. STATE
Cite us 270 So.ltl ti(i(i

Social CluL. Shc statcd this man was at- cr Strect. \\rhen Beasle,v turncd onto

tired in greel pants and a green banlon Stantort Road, Thornton hcard morc shoot-

shirt. She saw thc man walk up to the ing. The next thing he saw was a man

man lying on thc ground, say something, kneeling or crouching on the ground in an

and then heard-l,vo shots {ired in the open field. The man had a big red spot

direction of the fallen man.

I'atric Reed, State's witness, testified as

follos's: that he was ele'r'en years old

rvhcn this irrcident occurred; that hc lived

orr l)river Strect and was playing with a

fricnd at a neighbor's house r,r'hen he heard

shots; that he sarr' a man crossing a f ield

and fall dorvtr in tht strcet; that he sarv a

nran u'earing a grecn shirt and Pants aP-

lrro:rch thc fallcn man lvith a gun; that he

hcurd sotitcolre sa]', "Don't shoot an-r

,lrore. :rnd he hcard the mall ilt grccll sa-\',

' l'll shoot -r'orr." I Ir sarv thc f allen nlarl

tr) to get trp and then fall back dou'n. Hc

thcn sarv this man point his gttn torvard

thc rnan l1-ing in the street and hcard a

shot.

l-eo Clemmons, fifteen'years of age, tes-

tified that on the date in question he was

cutting grass alongside Fintey's Drugstore
r)c\t to Finley's parking lot. I{e saw No-
lrlc Beaslel-'s car parked in the parking lot.

IIe further testified that he saw a man,

later identified as the deceased, crossing

Costaridcs Street with a shotgtrn; that he

tClemmons) began to run and as hc was

running he heard a gunshot: that he

tr,rrned and sau, XIr. Finley standirrg along-

side his store pointing a gun at Perine ;

that there was an exchange of gunfire be-

tween Finlcy and Perine during which
time Perine \r'as apparently wounded in the

leg. He further testified that as Perine
was limping away, he saw Noble Beasley

and another man come out of Finley's
Drrrgstore. Beasley got into the driver's
seat, and the other man into the back seat.

Clemmons stated that he saw a long gun
pointing out of the back windorv of Beas-

ley's car as it drove away.

Ottis Lee Thornton testified that he was
coming out of the Ridge Social Club when
he heard shots. He, saw Noble Beasley
driving a blue and black Cadillac on Driv-

Ala. 669

resembling blood on his back.

.A.s the man in the field hobbled across

the street, Thornton saw Beasley's car

reappear and he heard attother shot.

Thornton further testificd that he sarv

Beastey's car go to the front of Finley's
I)rtrgstore; that appellant cmergcd f rom

the car, loading his shotgtrn. Appellant
ran dolvn Drivcr Street until hc came to

Perine's bodl which \r'as l-t'ing in the

strcct. According to Thorntort, "I sau'

I'crine's borl.v mor.ing and I sau Thigpen
rrsing his foot on his bodl'." Thigpen had

a shotgun in his hands at the time.

.{mos NIcCants testified that he heard

shots and saw a man lyitrg in the street

and another man standing over him. Sev-

eral other u'itncsses for thc State placed

appellafii and Noble Beasley in the.vicinity
at the time the shooting occurred.

Officer Kermit Seals of the \{obile Po-

lice Department investigated thc killing.
On arrival at the scene, he found Perine's
body lfing in thc street. A shotgun and

pistol were forrnd next to Perine's body.

Another shotgun rvas at the rear of a 1970

Oldsmobile. Officer Seals stated that hc

sarv the appellant at thc scene and ob-

served he u'as wearing a green shirt.

Officer Walter Pickett also investigated
the shooting. He observed a blue Oldsmo-

bile on Driver Sreet, identified as belong-

ing to Perinc. Perine's body was approxi-
mately six or seven feet from the front
door of the car. He also observed a. blue

Cadillac in front of Finley's Drugstore and

what appeared to be blood on the front
seat of the Cadillac.

Officer Pickett further testified that pic-

tures were taken of appellant that day at

the police station, and that appellant had

on a green banloo shirt and green checked

pants in those PhotograPhs.

:1,

ib-":,',i
'< r*. ,

i
.4



270 SOUTEERN REPOBTEB, 2d SER'IES
670

(-hicf rvitness for the defensc' IJenson

\\iashitrgtorr. ttstilied tilat on thc datt' irr

qucsticrn hc haci lrt'cn picxtting tht I Iarr<l-v

I\lart Groccry StoreI that as he sas rvalk-

ing down Costarides Street he sarv Perine

n"lu tt. Ridgc Social Cltrb armed with

a shotgun. He saw'trlady driving a Btrick

automobilc drive up to whcre I)crine was

standilrg and get out' Perine told this

person, "l'm going to kill that niggcr rtn-

icss God's a gopher'" Whcn the womarr

lel\, ar1 Oldsnrobilc drivclr l>-v Prcstr-rtt

Goode pulled uP and Pcrine got irr'

.'\ccordirrg to \\rashington, the car pullcd

over to a servicc station s'here f)crine sat

for a while. AIter a few minutes' Pcrine

jumpcd otrt and rall ovcr to a Gulf Servicc

br",ion. At this tinre Noble Ilcaslt'1' 'rvas

appitrentlY ualking toward his car and

\i 
"shington 

statcd he hear,l I'e ritte shottt'

"t'rn going to kill 1otr, niggcr"' Another

man, identified as appellant' was srttrng rn

llcasler"s car'

\\'ashirtgtorr testificd that Perinc fircd in

thc directiorr of the car' and appeliant

lurnp.a out of the car and ran into the

irrgt,ot.. The witness further testif ied

thai hc saw Beasley gct a long grtn out of

his car and firc at dcceascd' The rvitness

later sau' thc deceased, I'erine' lying on thc

grottnd.

Onc Thomasina Pcrine Rtrffin testified

that she sa'n' the deceased at the scenc

shortly beforc the shooting' and that he

told her "they were after him and that he

*". going to get them"' Perinc also told

her to leave because there was going to be

trouble.

Noble Beasley testified that he first saw

deceased on the date in question around

9:00 a. m. Perine had an automatic shot-

gun with him and drew it on Beasley'

fuord, were exchangcd b€tween them after

which Perine walked awaY'

He stated that he next saw Perine about

2:00 or 3:00 that afternoon near the Ridge

Social Club; that Perine had a gun and

began shooting in his direction; that later

that day he u'as in frinlc]'s Drugstore r' '

uhcn hc s:tu' I'restolt Cloode drive Perine's

autorn()l,ilt.illtrr il Kils stittioll across thc

str('(t. '\t tll:tt tinre it1'1'cllarrt u'as sitting

in his 1l-|easlt'1 's) car in front of the drug' tr.* -

store. According to Beaslcy, Perine begui d&.
shooting in the <Iirection of his automobile. gffiF
r\ppellarrt jrrnrped ottt and ran tnto thc " ';?UI'
a.rgrror.. IJtasle-v begarr f iring at Perine, ;'l ''

llt'asley thetr s'cnt rlito liinley's Drug-

storc rvherc hc sau' appcllarrt grab a shot-

gun lrelorrging to James Iiinlgy and run

Lr',r.r,1.. Bt'aslc.r' statecl thltt he and appel-

lant got into his car and licgan driving

down Costaridcs Strcct' As they pasxd

thc Ridge Social Club, Perine and the ap'

pellant exchrrrrgeti firc. 'fhc1'then pro'

ccedcd lrack to the drugstrire' The ap-

pt'llant junrpccl orrt of thc car and u'ent

i,^ck to tht arca u'herc I'crine had becn

shot. Ijcaslt'1' stated that hc did not hear

an) mor(' shots.

Testimonl' of -James Finle)

corroborqtcd that given bY

Washington. Several other

riesses testified that theY saw

frorit of Irinle)''s Drugstorc o

questioll, arld that Pcrint' had

r,r'as shouting sonlething'

substantiallY

Beasley and

variotts other u'ounds on other parts of tht

body.

tll Prior to trial, counsel

made a motion lor the Distrtct'

divulge "all information in his

information he has access to

the lr{obile Police

Statc,
('ourt

'fti

"'l'his cr

it is iii
court as

will be r

fense u

dtrring
Sec Va
1-1.3 So.

App. 33

r-.R. 3-{:

" l"urthe
of thc 1

that it
rcfusc t

prodttct
tiorr bv

tht' St;r

irttorl)('

'l-ht' cr.r

t'x rcl. I-
of \erv
rvht'rein (

"'I)ocr
tion fo
lle use

t'r'idcttt
lrt'sttlt'
th enr st'

Since
St;rtcs, .3

l..d.ld l l
prcnre C

45.r, 179

denicd a

Cants Y

877; Sn
2d 826;

!39 So.2,

:[2]l
tnerated

.cop)' or
recordet
.ants; t(
. lclrorts

',perimen

*ir'
.y.;:. ..

ll:,r'-

l)r. Brran K. Ilorrtgomery, a 
-patholo'

girt, t..tiil"a that in his opinion deatb re'

]ult.,l fro. multiple gunshot wounds' Pri'

marily in the chest arca; there were,s]::

Department and DePartment

thai is bcncficial to the del

The trial court acted

tion in denYing such motion'



TEIGPEN v. STATE

Sr,rtc, l0 .\ra..\pp. t2e, ,0 r".rn ,irl"li:?0so.?.00,i 
Ala' 671

( .rrrt stat(,d : ' 'rv !'e'!(r 
''rl']' rne clrttse"' u as prr.,pt rly tlenied. Sc.c particu_

,,This corrrt, in tr.r,o cases l,-- L^rr .r 
Iarll'Smith v"statc' supra'

it is rvithin ,n" ;i,.',1.1i1;til T:.,Hi rrcourt as to whether a prosecuting officerrvill be compelled to turn over to the de_ t3] Nor was it error for the trial courtfcrrsc written notes made by officers to. deny appellant's
<lrring the investigation 

"f 
'"-.;;.. minutes "i',;;;;;rI:H. 

til':ffi:.ti;

l,T l:.::ii 
',:;:f ,i,#l::l i?j: #l* v S,a,c, z+ tr, app :rs,-n,-s;

z\pp. 339, 135 So. 107. S." also fsO .i. ,, . The nature ancl character ofl-'R' 3-15-'3'55 
the notes *.r.'.r.n that th! solicitcrr"l'-rrrther' it is the holding of a majorit-r. *'". ltndcr no dut-r.to submit or delir.crof thc highest corrrts or our .,.,.r'r(iri", them to defendant,s counsel and thethat it is not error for a trial .";;;'; court properll,declined to require him tort'fttsc to order a prosecuting o,,o.r,.r. io do so. The'notes

l'roc'lttcc and makc a'ailable for inspcc- cvidcncc, ,,rO i^lr.,*::::J';:.:t::::: ;,]tiorr b;' 8Ir ;lfs'11ss{ statemcnts gi".,-, t1r. cvidence containini:rs \\.as made known

:[;Y"': ":"':":: to ,n. p,.ol.*i;,,* to the 
"o,,.t, n',n,i"rs u'hich rerated toother cases, it rvorrld ha'e been ;;;;;;

l.hr court u,ent on to ouorc frn- D-^-r^ 
toirave thus divulged tt,ir.riO.n".ji"i*

, x . r-cmon 
",,,i.ii:F"j'.:i,'i::l: ::fi:,li;,.t*. [j;;l*iilH:t:of .\e*' \'ork, 215 x.y- z+, ,; i.E.;;, cretion o,f thc trial irrvherein cardozo, c. J., observed: in this c;nne.ti;";r,.r.d,i;"1lloljr rulings

. -Additionalll., in .strange \,. State, 43Ala..\pp. 599, tg7 So.ZO +J7, 
"_ ,,*"in,rl

"When the defendant, in effcct, asks forthe State District .,\ttornc-v to produce adocument, he should at ieast ;;;.;that this State official hr, .uJ';;.;_
ment or a copj.thereof in his possession
before the trial court rvill be irt in .r_ror."

-. 
On the basis of these authorities, rvcjll :1", the triar judge acted within his

l1-.r1,]on in. refusing inspection .f ;;;grand Jury minutes.

$rto4
rrine'6

s thr
ittirg

ollla l:n'

,dE1;
rrinq. , ":
' ' lr',,

"'Documents are
tion for the mere 

not subject to inspec-

r,. ,."r,,r ;, ;;;,;f;": 'ii:tl,f..:;ll
cvidcncc can bq gatf,erca. D;;;;;;r';;lc subject to inspection ,"rr, b. ;r;;";;thentsclves.,,,

,. Since thc rule of Jencks \,. United
1,."1"., 3s3 U.S. 6sZ, 7; S.Ct. l00i:1..;.Ed.zd 1103, has been rejected by our Su_preme Court in .sanders v. State, 2ig i;.+.s3, I79 So.2d 35. thrd.""J ";il,;t ;:,,I1''3:':' ;::, T,1l

o11n,r^,... 
State, 282 Ata. j97, zii-S"Zar//;_Smith r.. Srate, Zg2 Ala. iOS, i,0 S"

::"Yu; Henrl' v. State, 46 AIa.App. r75,aJe $6.fd Jtg.

-- 
[2] fo. the same reasons as above enu_rnerated, appellant,s motion ,t" i;r;;;;;cop),or.photograph 

any relevant *ri,i., 
".recorded statements made by tf," a.i.ri_arts; to give said defendants tt,. ,..ufi-o',

::T"r of phl.sical or scientific 
"", 

* .*_periments made in connection with said

III

i4l Appellant further filed a pretrial
Sotion to compel the District lf,,".r", i"identify and producc thc whereaborr, 

"f'.witness or witnesses rvho allegedl; ;;.;eyewitnesses to the incident i; q;.r;;;;.
However, rve do not deem the constitution_
al 

.right to compulsory process in a crimi-nal case to operate in such .r manner as to



672 AIa.

compt'l pretrial rlrsr:r.rle11' as to \\'ho in fact
are rvitnesscs for the State. Rathcr, thc

taw assumcs that dcfense counsel rvill act
n'ith due diligcncc so as to have such wit-
nesses as nccessary available at trial.
Then, by way oftompulsory process for
obtaining such rvitnesses, the defendant is

secured of a proper prescntation of his

case at trial. See Vrith v. State, 48 Ala.
App. 688, 267 So.Zd -tti0, and cases cited.

\Iorcover, a searching cross-exantination
is also availablc to the defense. Thc
record here reveals a thorough and sifting
cross-examination of each eycrvitness
called to testify for the State, and thus u'e

find no prejudicial cffect orr appellant's
rights.

IV

tsl On }Iarch 29, 1971, the da1' set for
trial of this causc, the appellant moved for
a mistrial u,hen it appeared that the trial
judge had cxcuscd several jurors from the
r.enire without the presence of the defend-
ant.

Title .lt), Section 63, Code of Alabama
l9-ll), Recompiled 1958, pertaining to the
drarving arrd summoning of a spccial ve-

rrire in capital cases, has been interpreted to
mean that the defcndant must he present
and givcn an opportunity to participate in
the selection of the jury for his trial.
Crrrmp v. Statc, 28 Ala.App. 103, 179 So.

392. This requircment has been hcld man-
datorl', and its denial to cornpel a revcrsal.
I-assiter v. State, 36 Ala.App. 695, 63 So.2d

222.

However, the provisions of Title 30,

Scction 63, supra, fiave been held to have
no application to lvlobile County. Rather,
the selecting and impanelling of juries in
Mobile County are controtled by the provi-
sions of Volume l-lA, Appendix, Sections
5+3(5)-543(16), Code, suprai Gautney v.

State, 284 Ala. 82, 222 So.Zd 175.

Appendix, Section 543(5), provides as

follows:

.'.'Application of nftdiuision.-The provi-
'lsrons,of this subdivision shall apply to

2?O SOUTEEBN REPOBTER,, 2d SER,IES

and bc operativc onlf in circuit courts of
this state in counties having not less

than 200,000 nor more than -100,000, ac-
cording to the last or any subsequent

federal decennial census. (1959, p. 955,

$ l, appvd. Nov.6, 1959.)"

According to thc last federal decennial
census, the population of llohile County,
Alabama, was 317,308.

Appendi-x, Section 513(12), providcs the

following:

"lrrcgularities not constitutirg grounds

to quaslt uenirc.-lt shall not be a

grorrnd to quash the venire or to contin;
ue alr)' case of the kinds referred to !n.;p.

this subdivision that the sheriff has'
f ailed to summon an1' of the jurors

drarvn for servicc during thc week in
rvhich said case is set for trial, or that
arry of the jurors summoned have failed

or refrrsed to attend court, or that tlere
is anl' mistake in the name of any juror
srrnrmorred, or that a judgc, either is
opcn..coilrt or othenuise has, tqr
causi, ercused aty jtror
sertice for the weeh ia which
is set for trial. (1959, p. 956, $ &
appvd. Nov. 6, 1959; 1961, Ex.Sess.' P,

2276, appvd. Sept. 1 5, 1961.)

" Note.-Thc 1961 amendncnt deleted

'with the consent of thc dcfeadant' tE 
,','

tzt,een the zttords 'has' and 'fo/ fiear lhi'
cnd of this scction." d
The language embodied in this

sion is to be found in Act No. '366

pro'r'ed November 6, 1959, Acts of
1959, Volume 2, as amended bY

approvd September 15, 1961,

bama l!)'61, Volume II.

In the case of Stewart v.

5ll, 17 So.2d 871, where the
erating under a statute made

Jefferson County identical to
th€ case at bar, the Alabama

Court held:

[W]e do not thi*,
fendant had a right to be

d',.,ffi

prescr
j ur-v I

u hich
ty in
the pr

Ala. 3

State,
contro

We fi
<lcr the f

See a.

.\ pp. {01

frrllou'in1

held tl
lrtrvt.r,
i rrtlictn
:rrrd rc
or u'hi
the de

error,
(lourt I

t6l r
ruling a

that he I

spccti ve
otlrcr jur
vr.rir dire
trial cour
.si3, 125

Ala. 586,
therein;
2.11 So.2d

t7l 11

names of
yenire by
ror. As
bama, 38C

2d 759:

striking
isade
laws. l

270 Sc

-,iIt

r.*

'ilr'

heard in respect to the



of
ess

ac-

ent

55,

EaI

tY'

tds

a

n-

in

as
,It
in
at

d
re

0r

in.
|t
,r

. #;.r
;:$$,

TEIGpEN v. STATE

i,fi"}:'.' J:,,l,:.i,l::,r1i1,,;;: :*,'',i,il,=l=r,r,,, \,egro and..,n1: 
","::'*'hich has applicati,n to lcf fc;;or;"au"ttt 

t;tnt an(l ( atho.lic, are alikt: .,,t,;".i ,o
t-r' in the trl"t of such casc,s , ,", ,ill, 

beirrg challengerl rvithout ."*...- 
-'. -''.'' 

. ,,

the principte of s_tinson , s,;;;, ;;.; 
,,In the light of the purpose of the per_Ala. 327, 135 So--571, ana Smailwooj ..,.. emptory system and the function itState' 235 Ala.425nl79 so, zlz,;il serves in a pluralistic society in connec_controlling.,, ' tion *itt, ttr" institution 

"i ;irrr.r.i"J,*.
we rind this authoritv rreterminati'e un- ;:Li:t .l''1.*::^:ie constiirtion' ,"-

dcr the facts of this case. tor,s reasons ,":tff"r,:_:"r".frJ:: f,r."[::-See also llrewin.qton v. State, t9 ..\la. ]ense.s 
in an_r. girer.r case. The presump_

'\1'p" -109, 97 .So. 763, rvherr. .,""'ti,,o iir. tion in o,,-" paiti"rrar case must be thatfollon'irrg pertinent language thc prosccr.rtrrr is rrsilg the Stite,s chat_
This

hed that, *n;..,;:'::,,1i:.;:,;,1.1:1,,1 ;?.[iff:- **",* il,lorvtr degree of the crinre tt'"tg.J in-rtr. prosecrtor thercfore subjectcc t. exami-irrdictmcnt, rulirrgs of thr corrrtlir..,r,,'_ natiorr l,-v :rll,.r:,,trons that in rht,case at
::'1,;',:i:'l] :"lL L:1" ,fi;: ;:::: l:,ltn 

,,, 
-N;:;.il 

\\ ( re *nlo\ er, from ,,re
the cleiendant wa. ;;;;;;# l].'^.ll;'*:: JIr'\'or that thel \\'ere removr'ci becausc
error, be ,u;11,o,,1"L.,1-t-qrritted' 

u'orrld, if thel'. *'crc N;g;;.. An.r- other rcsurt
('otrrt rule.l.i ."":t''. 

under Suprenre rvc think, r'r'o,Id esrablish a rule ,ulrottiat erdds u,ith tht )

s\-stem u, *," *uo,,l.'::'-?i::-:.tfl'T::
V . tion tt, strike the

t6l The trial court did nor err.in over- 
denieJ';t'**;"':iial 

jurv u'as properly

lling a motion iy 
"orn."l for appellan, *t cannot therefore conclude that inthat he be allowed ,o .*",n;nl'"ffi;;l th_is particular c.sc there r,u. u"., 

"'a"","ispcctiYe 1,,,oI. ou,Jalo,;:T'#;:"lro,1l. of eqrrar ,.",."ii", of thc ra\... See alsoother jurors. Jurors ma1. be qualified o. 
Scals r.' State,282,\1a.5g6,213 S;;;;i:,,toir dirc in groups at the discretion oi tt 

"trial court. lfiPhcarson v. State, Z7l Ala. VII
i :,, lir So.2cl 709; Seals v. S,",., 

'iS:
.\la. .ig6, ZIJ So.2d 6.15, and cases cited 

Seve-ral of the grounds alleged in sup-
therein: Brou,n ... S,"r..'_r;^;,;,i::'ll-.,": port of appellant's motio, to quash ttr. 

"e_2.ll So.Zd iOi. 
,. -,rate, _{5 .\Ia.,\pp. 391, nire *.r,re: (l) that tht, r,enire did not rep_resent a venire representative of the com-

VI munit.r.; {2) that Negroes were s)_stemati_cally excluded from the venire, '"ri' 1jy

-"9] 
The- peremptory striking of the 

that persons between the ages "r'zi"ra'ii

lirlj. ;i :1".' :li;:'ffi nli "**: ffi ; 
-';'#Ii.,, 

l','..::;''o,;' il:' i,l.',ilror. As stated in Swain ,. st"t. 
"i;i; ?he evidence in support of said motionliTi, r, u.s. n2,85 s.ct. 8z+, t3 L.Ed. was as folrows:2d759: -rr v-1, rg !.Lu.

[w]e cannot hord that the r,.::,#l"I;X"3:,y;,i'i:ffi"::j::: ,striking of Negroes in a particur^; ;; panerted in Corritroom one in Mobire sinceIs a deniar of eouar proiection 
"r 

-irr. 
,s;313muer- 

J i;;;"i;,s being March 29,'tT.r':J: q'"* fo. an impartiat and l97l), and trr"t,,. uart ma.lortty of them



674 Ala.

rvcre over thirt_r'. IIc did statc that
past scveral nlonths thcrc h:rd I'ccn
ticeablc increase in youngcr jrrrors.

the
no-

John Coleman, another X'Iobile attorney,
testified that hc had bCbn specifically ob-

serving the ages of pcrsons on jurl' panels

for about a )'ear; that hc had ncver secn

more than ten or tu'elve jurors out of a

panel of approximatclr' 1()() rvho appearcd

to bc rrnder thirtl r'ears of a(e. It u'as his

opinion that thc -lury (.omnrission of IIo-
bilc County had madc no t'ffort to prrt thc
names of peoplr' irom t\\'cltt',' one to thirtl'
years of age in the itrrl' l-ro.x.

The State preserrted \lar-v JIelton, Clerk
of the Jrrr,r' Commission for Jlol,ilc Coun-
t1','n'ho testificd that it sas hcr thrtl'to sc-

curc prospectivc jurors; that shc did this
through personal contacts and sending out
qucstionnaires: that she deternrincd names

for the qucstionnaires by ttsing license

tags, city dircctorics, tclcphone books, ta.x

records and voter lists; that over the last

six months, 395 additional names of per-

sons ranging in age from twenty one to
twenty nine u,ere placed in the jury box.

Prior to adding these new names to the
jurl' box, shc had mailed otrt 2,809 ques-

tionrtaires f rom rvhich 2,01() names rvere

added to the jurl' box.

Otrt of that number, 21.35% were Ne-
groes and 19.75% were under thirty years

of age. She did not know the composition
ol the entire jur-v box, comprised of. 24,288

names.

I\'Irs. Ilelton further tcstified that since

she had been the clerk, she had mailed five
sets of questionnaires to both blacks and
whites, and an additional one exclusively to
aid in obtaining additional Negro names.

She also testified that she personally con-
tacted several Negroes in an attempt to in-
crease the percentage of Negroes on the
jury roll. She had also contacted responsi-
ble Negro leaders abou! the matter and
asked their aid. Further, the Jury Com-
mission had operated a booth at the Great-
er Gulf State Fair in an attempt to secure

prospective jurors.

270 SOUTEER,N REPORTER, 2d SEBIES

rn

a

JIrs. -\I-r'rtle'l'rott, I)t-putv Administrator
in chargc of thc ('rrrriirr:.1 I)ivision for IIo-
bile Countl', trstified that she assisted the
court in impanclling juries. I'Irs. Trott
statcd that since Decemtrer 8, 1969, she had
kept a record of the numbcr of black and
rvhite jrrrors: that the percentage of whitc
rvas approximatcll' 67%, and the pcrcent-
age of Negroes approximatcly 33/,;.

t8l In the Iirst plact. it is now quite
clear that a defendant in a criminal case is

not constitrrtionalli' entiried to demand a

proportiorrate numLer of his race on the
jur-r' s'hich tries him, nor on the venire, or
grand irrrl' s'hich indictcd him. Cassell v.
'l'r'ras, .i.19 t'.S. ll{1, ;(l ::.Ct. 629, 91 L.Ed.
tl39: Ssain r.. Statc of -:rlabama. 380 tl.S.
202,85 S.Clt. Sl-i, 13 I-.Ed.ld 759.

\\'e feel that the applicatrlc rulc of law is

to be found in Junior v. Statc, -17 Ala.App.
518, 257 So.2d &1.1, cen. denied 288 Alr"
711,257 So.2d 8.i2, as follou's :

"The appellant's contention in
must be gtounded upon probf
groes [and those persons
ages of twenty one and thirty] havc

bcen the victims of inrproper discrimina-
tion and exclusion from jurl' service in 1 ,',.,' ;

the jurl' selection process. But purpost-'^t , i,'cLl
ful discrimination must be proren' dtidiisC:;'i
may not be assumcd or merely asse*e4,i#i**:i
and the quantum oI proof necessery

establish such fact is a matter of fer

taw. Szruia, supra." t'.

t9] Here, the record clearly
show a lack of good faith on the

the jury officials to obiain
groes for jur.r' service. There is
dence that the Jury Commission
enced by racial consideratiallil
different standards of quali

spplied to the Negro or
the community. In surq therg:ii
dence to indicate that prospective

fill the jury roll were selcted on

of anything other thau theh.,.

qualifications. See .Sttlotl,

\\'hitc et al. r

So.2d .113.

1'he trial jr
nied appellant
venire on thes
rou', 5 Cir.,4G

-\nothcr gro
pellant's motic
that the venire
llarch 29, 197

occrrpation, pla
,tf 2(.)A6 of the
ntrr.

I l0] \\rc ar
it does not ap
sriltt'd, clcrical
rrot furnish su{
vt'nire . Parke,
So.2d 209; Zir
o.i So. 56; Spo
I 15 So. 308.

.,\ possible so
rvin r.. Statc, 2.

c., a short postl,
it, in order to t
cd. \o such mr

.,\s witness fo
l)ickt.tt of the
rvas allou,ed to
angle at u,hich I
in the neck, jusr
record :

"a Did the b

man from a st
that you found
,.MR. CRAW}
..THE 

COUR'
..IUR. 

CRAWF

"A No sir. I
l. In padgett v.@ so.2d 14?

Ll .l
S! :i
.\1 !
-1. ,t!
!i. !i"

{ii
:l
- :r

v. State, 285 Ala. 3V, ql



il

\\ hitc et al. v. Statc. 'lS

So./ri .i1.3.

TEIGPEN v. STATE Ala. 675
Cil t' rrs 270 So.2d {i8(i

'\la.'\pp. 111, 26'2 "l]Y llR. SIIIS:

"O 'l-hen what angle did it appear to
come from in your oPinion ?

"A It appeared to come at a downr,l'ard

angle.

"A It came up into the. jau', is that
right ?

'l'hc trial judgc thcreforc corrcctly de-

rried appellant's motion to quash the jury
venire on these grourrds.t -lackso., v. IIor-
rorv, 5 Cir., 404 F.zd 903.

e ,J'.

3

e

r!

rr

v.

d.

S.

VIII

.\nother ground urged in strpport of ap-

pcllant's motion to quash thc venire u'as

that the venire list drawn for the rveek o{

\larch 29, 1971, did not corrtctly statc the

occupation, place of business and residence

,,1 20(,-6 of the persons comprising the ve-

rr i re.

l. lO] \\'e are of thc opinion that $'herc

rt dc-res not appear that prejudice has rc-

srrltt'd, clcrical or ministcrial nlistakes do

rrot furnish sufficient ground to quash the

vt,nirc. Parker r'. State, 266 Ala. 63, 91

So.2d 209; Zinim'dn r'. State, 186 Ala. 9,

6.5 So. 56; Spoonel' r'. Statc, 217 Ala. 219,

ll5 So.308.

A possible soltttion was suggested in Ir-
\\.irr ,r'. state, 22() Ala. 160, l2-l So. 410, i.

c., a short postponcmctlt, if justice rcquirt'd
it, rn order to hale thc venire list correct-
crl. -\o such motiorr rvas hcre made.

IX

r\s s'itncss for the Statc, Of f icer \\ialter
I'ickctt of the trIolrile Police Department
was allowed to state his opinion as to the
angle at which a bullct struck the deceased
in the neck, just below the jaw. From the
record:

"0 Did the bullet appcar to come at the
man from a straight angle as to the hole
that you found rrnder his jaw ?

"I\{R. CRAWFORD: We object.

"THE COURT: Overruled.

"lUR. CRAWFORD: We except.

"r\ No sir. It did not.

Padgett v. State, 49 Ala.App. 130,
So.9d 147, eert. denied Nov. 16,

Into the jar..'.

It did not come straight into thc

No sir."

tll] The law is clcar in Alabarna that a

nonc-\pert u'itness is not to be allou'ed to

stat(' his opinion as to the drrection a l-ruliet

travt'iled bcfore entering the deceascd's

bodl'. IlcKee r,. State, 82 .{la. 32, 2 So.

-151; Humber v. State, 19 Ala.-{pp' 451, 99

So. 68. Hou'ever, the record here discloses

that Of f iccr Pickett was possessed of
knorvledge beyond that of the ordinarl'
man in this fleld. His testimony was that
he had been on the police force for twelve
years and had had occasion to examine

more tharl 150 gunshot rvounds.

Further, thc record reveals that therc

werc three e.r'eu'itnesses to the shooting
u,ho sa'uv someone standing over the de-

ceased, rvho u'as lying on the ground, and

firc at lcast onc shotgun blast in his diit'c-
tion.

Additionally, it u'as the opinion of Dr.
Bryan trIontgomer)', a pathologist, that his

examination of bullet fragmeuts found in

the top of deceased's head indicated to him

that it was "unlikely that deceased was

struck by a bullet directly from the front,
but rather at aPProximately a 180" angle'S

Consequentty, even if Of ficer Pickett
was not qualified as a ballistics e-\Pert, we

deem his testimony as cumulative in effect
and nonprejudicial to appeltant's rights in
view of Dr. I\{ontgomery's testimony and

the eyewitness accounts of the shcoting.r

19?2, 289 Ala. 
-, 

280 So.2d 154' rc''

ceutly rlc'ciderl by this Court, it p'as r'r-iltl

"0
jaw ?

ls

,P. ,ltl'lu-
." 

ra1

ilrc

[e.
in

8t3;
.!f;



676 AIt. 270 SOUTIIER,N REPOBTEB,, 2d SER,IES

\r

t13l Appellant contends that the triel
court was in error in refusing to allow dc'

fense witness Reginald \\'ilson to testify er

to alleged threats made by the deceased

against aPPellant.

Reginald \\'ilson \\'as the first witness to

tcstifl' for the appellant, and at this juncture

in the trial, no evidence had been adduced

as )ct to u'arrarlt a finding that aPpellant

u,as acting in sclf-dcfense. The evidence

had tended to shos'aggressive retaliationon

the part of appcllant, rathcr than strictly

defensive measures being taken.

lrr this state o{ tht' evidctrcc, u'e find no

error in thc court's ruling. Boyd v' State,

37 Ala.ApP. 429' 7l So.2d 119.

.t. '
:; ).-'

''.\llr. Ii
lmmatcr
the forn

"TIlI.l (

[ 14] \\
thc testim
ilCous, aS 1

rrr tr|u asp

tiiics to :

nrrtst testi
reputation,
'l'hornhill

J(t7, or thir
t itrr, Cartt
Sl.-1. I{,.rt.

:cc()llr.l,
r('J)llt:lti()l),
to the "g
chrrractcr"
li.. Alrr. .i

I I .,\Ia..\p
State, l8,r
State, 2l I
mon v. St;
.-\ustirt r'. i

41.1. I:ailu
forc "repu
lrlro-v, I-av
Iidition, \'
tlris to Lc tl

x

UZ) At one'point during the trial, de-

fense counsel movi0 for a mistrial, alleg-

ing he hatl discolered that State's rvitncss

Ella Belle Porvell had been seen in the

courtroom on the morning of the afternoon

that she had been called upon to testifl"
The rulc had bt'en invoked as to thc \Yit-

ness. I)efense counsel further movcd to

strike thc testimony given lly this rvitncss'

In arguing his motion to the court, de-

fense counsel presented trvo rvitnesses. one

Rufus Riggsbl' and one William Dotch,

u'lto stated that they sarv IIrs. Porvell in

thc courtroom rvhile the trial 'w'as in prog-

ress prior to hcr giving an1' tcstimonl"

Ella Belle Porvel! took the stand and de-

nied having cver been in the courtroom or

having heard any of the proceedings of
this cause prior to testifying. She stated

that u'hen shc arrived at the courthouse on

the .date she was to testify, she 'urent di-

rectly to the district attorfley's office in
the courthortse where she remained until

approxirnatcly' -l:30 p. m., when she s'as

called to testifl'.

The motions by def ense counsel s'ertr

denied, with the trial judge intimrtting to

the district attorney that he instigate per-

jury proceedings.

We find no abusc of discretion by the

trial judge in this matter' especially in

view of prior holdings that it is within the

discretion of the court to allort' a rvitness

who has violated the rule to testi{y. Moul-

ton e. State, t9 Ala.App. 446, 98 So' 709'

,that revereible error yaa cotnmitted in
allo*'int a Ioli<'e officer to give his opin'
ion ns to tlre direction from wlrir'h a

bullet lrad trarelletl.
The prcsent situation is distinguishe<I

from Podgelt in tlre follorving aspeets:

7l\ lt Poitgetl no predicate of anv kind
qualifying the police offieer was laitl pri-
or to a<lmittiug such te:timonY; (2)

There sere ng oyswitnesses to the shoot'
'-,rlng in Paitgett; (8) The tcstiEoDy giveD

in Padgett was of critical eiSnifieance;
here, it was eumulative in effeet; (4)

XII

On direct cxamirlation of

ness OtrJ Lucious, the

curred:

de fensc

following
;0j.;

:r:t'"r'.l

"Nou', I ask you rvhcther or not You

-rvithdras' 
that. Horv long have

knovrn JimmY Perine ?

r'A I have kno'vvn -limmY quite

time, because we gres uP together'

"0 Grerv uP togcther ?

Uh huh. Do You know,-4o
have an opinion as to the

Jimmy Perine in the comrnunitr.iq
he lives ? 

:

Thero 'wrtg nn obvious preJudicG
.from the erlmittanre of ouch

Poitgett: ltere, we find none;
Officer Pickett's testiuronY le

wit-

deseriptiou of the ctlaructer of the'1

from personal obeen'otion, Roid Ya

1ti1 Aia. 1{, 61 So. 33'1. white in ;f-r

it," rrotic" offi<'cr went further and

his oonelusion for the jurY ad JQ

relative luition of tho Parti6' lB

lls.l Or
witness Be
on the dal
ccascd, Jirrgun. He
as being sir
in Perine,s
tion, it app,
Attorney h

for the pr
witness a t
which this
ness was
former tria
Iy identify
this questio

time of the slrooting. Bicl
Stnte.2O{ Aln. 124, 85 So, ?89'



TEIGPEN v. STATE
...\rlr r1ur.r.r r(: rorricct..\..url;t;J'::fJ:t;. r. s1;1n1i1,.,,,, ,,.,,,,1'..,, ,:lmnxrtc'-ial, inrproprt r prccticart' and to tai,irrg his frirme r tcstimorri.the forrn of the qucstion. "!r'6 rrr'- r('IrLUr t(sllmc 

-

'' .# "THE COITRT: Susta-in the objection.,,

[14] We do not ft.el the exclusion oftllc testlmonl' of this \\.itncss ,* 
^, "rro-Ireolls, as the form of the rluestion n.as irad

in t\\'o aspects. I;'irst, bt,forc a ,,,.itn..l; t. a_tifir.s to.anothcr,s gerrcril rcputation, hc
rnust testify that hc {.lor(,.f such g",.,.ral
r_eprrtation, Iladle.v r.. State, 5.i Ala. 3 i :'l-horrrhill v. Statc, l1 ;\la.;\p1r. G7, i2 Srj.
297, or think he knou.s srrch gcncral replrta_
tion, Cartcr v. Statc, 2l(r .\ia. qO, l+.i So.Sl.l. I Jcre, tro such pre<.liiatc rr:rs laid.

..\t this poirrt, an objcction u.as inter_
posed by defenst counsel thlrt rro prcdicatc
had been Iaicl for impeachment purpnr"r,
and defense counsel further ntoverl ,n .*-
amine the tral)scrrpt hefor.,thc rlittress
u'as qurstioned frr_rm it_

. . )\ . fcri that a I)ropcr prc<.lrcatc u.as hcrc
Iaid, the r.,.itness' attcntion har.ing fr".,, Ji_
rc,cted tr,, thc timc, placc., arr,:i circunrstarrccs
relatiltg. tcr the allegtrdl_r. contril(lictorv
stalemrltt.'.1'ltc trial court tht,rt,fr,r" .or'-
rectl_r' rrrlcd in ;tllou.ing srrch <ltrt.stiorr l,r
:lskcrl of rlt feirsr l:i:r<,ss f.,. ini1,, achrncll
IIU rp(.) )('S.

Ir;asnrrrcl.i as ht,rt,, thc ,i.rjtrirv rclatcri
r-rttlr 1,r a:t trll(,s(.(li_\ i,,C,,,.,...i..,., .,,,r.r,.,,,
marlc at :i i<_irntc:- tri;rl__no aitt.ntpt having
irecn rlllrdt to oifr,r thc transcrrpt irtto er.i-
derrce, i. e. as original evidcncc, lrut rncrclvfor purprrst,s of impeachmcnt_it ,,,^.; ,,oierror to deny, de{,ense counsel,s motion to
examine the transcript, the witness himseli
having previousl.t. exanrined it. IlaiJry r..
Statc, 2.1 .a.ra..A.pp. .j39, 135 So {07, ii",;-nurI \'. St:rtt,, Jl7 .\l;t. .i5i, I l(r :o. .l(rr

\t\-

[16] 'I'hc oral charge of thc trial court{ullr lrnd corrcctl-\. statc,d thc: principles ofl:rrv eifecting all matcrial asprtts of the
c.rsc. Sontc of the refrrsed charges related
to the doctrine of self-defensc. The courtfulll' charged the jur1. as to the elcmcnts
of self-deferrse, and appellant rr.as not enti-
tled to have this done again in different
language. Sanders v. State, 2.12 Ala. 532,
7 So.2d 483.

Appellant's refused chargc No. 7 was
properly' refused as it u,as abstract, there
being no evidence of appellant,s character.

In our vierr', the other refused charges
rvhich assertctl correct legal principles
were fully covered in substance either in
the court's oral charge or other given
charges, and no error can be predicated
thereon. Title Z, Section 223, Code of Al_

Ik""::
!i
,"'..':

H: r

.\t.ci)ti(i, in yrr()1.i11g a pcrson,s gerrr.ral
rcJ)lrtatioll, thc qrrt.stion shorrlrl l.ic rlirccterlto the "gencral reptrtation., or,.gencr:rl
char;rctcr" of such pcrson. \\:a_r. v. State,
l5.c Ala. .q?, {6 So. ZZ.j; Itecton S;;;;:
I I .\la.App. 3.1.j, 66 So. 85,-, n"c, ...
Statc, ltl r\Ia.,\pp. 1.1.3, g9 So. (.).il er*.r,,,.
State, Zl Ata.App. 4@, 108 So. OSe; ij"r-
mon v. State, 22 Ala.App. 2gg, ll5 So. 67;Austin v. State, 32 Ala..\pp. SZt, ZA SoZi
12.1. Iiailure to use the ,,,.oia ,,11",,..ri, i;:forc ''reput:rtiolr" is inrproper. S"a lf.
l:lro1 . Lau of Evidt.nct. in .,\lahanra. JnrlI-diti,rrr, \'olrrmc l, \ 2rr.rtf1-1 1 \\." f."J
thrs to l)C thc lrsllqy pul1..

\I I]

ItS.1 On direct examination, defensel itness Bensorr \\'ashingtorr testif ied thaion the datc in qrrestion he saw the de-
ccascd, Jimm1, Pcrine, armed u.ith a shot_
Bun. He identified State,s Exhibit No. 7as being similar to the shotgun he had seenin Irerine's possession. On cross_examina_
tion, it appeared that the Assistant District.\ttorney had in his possession and usedIor the purpose of cross_examining thiswltnlss a transcript from a former trial inu'nrch thrs witness had testified. The wit_ness was asked rvhether or not at the

i.:tT.. trial he had been unable to precise_tl.tclentify the deceased,s weapon. Beforetots question was asked the witness was al_



lii
',**&c

ST,
:l i)

678 Ala. 270 SOUTEER,N REPOR,TER,, 2d SERIES

abama 1940, Recompiled 1958. Brooks v.
State, 248 Ala. 64, 29 So.2d 4; Vann v.
State, 207 Ala. 152, 92 So. ltl2; Ward v.
State,212 Ala.307,6 So.2d 39-1.

We have examined the objections made
during trial in accordance ,rvith our duty
under Title 15, Section 389, Code of Ala-
bama 19-10, Rccompilcd 1958, and find no
errors thcrein. The record here is in Tn'o
\rolumcs, containing 8l-l pages. The evi-
dencc being amplt in its tcndcncies to sup-
port the verdict and judgment of guilt, this
case is drre to be and the same is herebr.

Af f irmed.

r\ll the -ludges concur.

l. Crlmlnat Law @t95(t)

.,\ plea of former jeopardy is unavail::
ing unless offense presently charged is
cisely the samc in law and fact as the
former orre relied on under the plea. '*

2. Crlmlnat Law @202(2)

\\:hcre prior conviction u.as for break. : ti

as sulrject offcnsc, and thus thc prior con- {viction dicl not prcclude prosccution under l.
doctrinc of forrner jeopardy. Code of Ala., ifl

Robert RUTHERFORD, ailas

v.

STATE.

5 Dlv. 66.

Court of Crirnintl Appeals of Alabama.

Oct. 10,1972.

Ilelrc:rring I)enied Nov. lil. 1072.

I)efendant was convicted before the
Circuit Court, Lec County, L. J. Tyner, J.,
of grand larceny, and he appealed. The
Court of Criminal Appeals, Tyson, J., held
that where prror conviction was for break-
ing and entering dwelling and taking items
therefrom, and indictment in question
charged defendant with grand larceny of
outboard motor from dwelling owner's boat-
house on same night, prior offense relied
upon was not the same in law and fact as
subject offense, and thus the prior convic-
tion did not preclude prosecution under
doctrine of former jeopardy.

Af firmed.

Certiorari denied, Ala., 270 So.2d 679.

Tit. l.;, s 287.

3, Crlmlnal Law q=1269

Stattrtor.r' prohibition against double
punishment for same act or omission
be applied in cases of burglary 4n(4j
larceny only where uncontradicted
of complcted act of larcenr. stands
to support allegation of defendant's intdnt
whcn he entcrcd premises into rvhich hc
had broken. Code of Ala., Tit. 15, $ 47.

----+- ,,,i,ji*

\\'illiam -I. Baxlc-v, Atty. Gen., and Jo-..]
seph G. L. \larston, III, Asst. Atty.
for the State.

TYSON, Judge.

The appellant filed a plea of
convict in addition to his plea of
The plea of former conviction
trial and conviction the
second degree burglary,
now been affirmed by this
ported as Rutherford v. State,
289, 2& So.2d 210, cert.
750, 26+ So.2d 21,t.

,tl'
Jrl.

I
I
i
{

ing and crrtcring dwelling and taking iteuu d,thcrcf ronr, and indictment in question l,
charged dcfendant u.ith grand larceny of ii

;::H:::" tr:L J::[,,'.;::iX,;:::t *
lied upon was not thc same in lara, and fact': i"

Appellant, Robert Rutherf
dicted for grand larceny of
Atwater outboard motor, the
Louis W. Phillips. From a
guilty, judgment fixed puni