Opinion
80-535.
June 25, 1981.
Petition for Writ of Certiorari to the Court of Criminal Appeals, 401 So.2d 130.
Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for the State.
No brief for respondent.
The opinion dated June 19, 1981, is withdrawn and the following, together with Justice Maddox's special concurring opinion, is substituted in its place.
WRIT DENIED.
TORBERT, C.J., and SHORES and BEATTY, JJ., concur.
MADDOX and JONES, JJ., concur specially.
By denying the writ of certiorari in this case, I assume that the Court of Criminal Appeals, after reviewing the record in this case, has determined that there was some evidence presented on a lesser included offense, or that the record of trial does not affirmatively preclude evidence of a lesser included offense (Cf. Ritter v. State, 403 So.2d 154 (Ala. 1981), view of Maddox, Jones and Adams, JJ.), which would have entitled the accused to an instruction on a lesser included offense.
JONES, J., concurs.