Opinion
4 Div. 537.
July 26, 1977.
Rehearing Denied October 4, 1977.
Appeal from the Circuit Court, Covington County, F.M. Smith, J.
Earl V. Johnson, Andalusia, for appellants.
William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
Indictments were returned separately against each appellant. Each was charged with unlawfully possessing, selling, furnishing, or giving away marijuana, a controlled substance, in violation of Chapter 9E, T. 22, § 258 (47), Recompiled Code 1958. Trials were consolidated by agreement. The jury returned separate verdicts of guilt and separate judgments were entered pursuant to the verdicts. The court sentenced each defendant to five years' imprisonment in the penitentiary. The case against Edward Arnold Kendrick is No. 6529 and against Sarah Rolanda Kendrick is No. 6530. The appeals here are consolidated.
Appellants make only one contention of prejudicial error. That is, over objection of defendant, the district attorney, in an opening statement to the jury, said:
"MR. MCGILL: And they talked after advising Mrs. Kendrick of her constitutional rights, they talked with her and told her that they were there to search. We expect the evidence to show that she said, `Well, there's no need to search. It's in the hall closet'" * *
Appellant's counsel correctly asserts in his brief (with citations) as follows:
"The law in Alabama has long been that extrajudicial confessions and admissions against interest are prima facie inadmissible, and it is the duty of the trial court to make a determination that any such statement made by a defendant in a criminal case was made voluntarily. Hines v. State, 260 Ala. 668, 72 So.2d 296; Guenther v. State, 282 Ala. 620, 213 So.2d 679."
It appears from the testimony of Deputy Don Harrell (R. 47 and 48) that neither he nor anyone in his presence threatened or abused Mrs. Kendrick to get her to make a statement; nor did they offer her any reward to get her to talk or make any sort of statement. This evidence was before the jury. Thus, it appears that sufficient predicate was laid as a preliminary to the introduction of the statement.
Hence, there was no error in permitting the opening statement, supra. The statement was within the confines of the evidence. Pope v. State, 174 Ala. 63, 57 So. 245 (4).
We pretermit discussing other reasons why the ruling of the court was free of error.
We find no error in the record. Both judgments are affirmed.
The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.
AFFIRMED.
All the Judges concur.
ON REHEARING
We omitted to point out clearly that Deputy Don Harrell testified that defendant Sarah Rolanda Kendrick made the statement (R. 48), "Well, there's no use in going any further, it's in the closet." This evidence comports with the opening statement of the District Attorney. In view of such supportive testimony, there was no prejudice accruing to defendant from the opening statement, supra.
OPINION EXTENDED: APPLICATION OVERRULED.
All the Judges concur.