Opinion
5 Div. 43.
January 12, 1971.
Appeal from the Circuit Court, Chambers County, L. J. Tyner, J.
Charles A. Nix, West Point, for appellant.
The local jurisdiction of all public offenses, unless otherwise provided by law, is in the county in which the offense was committed, venue is a material allegation which must be proven. In the absence of such proof, the defendant cannot be convicted if he brings the omission to the attention of the court. Code of Alabama, Recompiled 1958, Title 15, Sec. 91; Mooney v. State, 23 Ala. App. 466, 126 So. 61; Culligan v. State, 29 Ala. App. 29, 191 So. 405. A person accused of a crime must be advised of his constitutional right to remain silent and to have an attorney present before being questioned. If not so advised, statements made by an accused during interrogation are not admissible evidence. The record must show that an accused was offered counsel but intelligently and understandingly rejected the offer. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Escobedo v. State of Ill., 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. In prosecution for assault with intent to murder, intent charge which did not refer to murder as it was known at common law, but to the two statutory degrees was improper. Simpson v. State, 59 Ala. 1; Johnson v. State, 42 Ala. App. 511, 169 So.2d 773.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
While proof of venue is essential to a conviction, it, like any other fact in a case may be established by circumstantial evidence. When the state offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question becomes one for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Denton v. State, 263 Ala. 311, 82 So.2d 406; Britton v. State, 15 Ala. App. 584, 74 So. 721. Where there is no exception taken to the oral charge of the court, the charge is not subject to review. Grossnickle v. State, 44 Ala. App. 384, 209 So.2d 896; Cox v. State, 280 Ala. 318, 193 So.2d 759; Lindsay v. State, 41 Ala. App. 85, 125 So.2d 716. Spontaneous or volunteered statements made outside custodial interrogation are admissible even where no "Miranda warning" has been given. McMillan v. United States, 399 F.2d 478, (U.S.C.A. 5th Cir); Diaz v. United States, D.C., 264 F. Supp. 937, affirmed, 391 F.2d 932 (U.S.C.A. 5th Cir.).
Assault with intent to murder: sentence, 20 years. Code 1940, T. 14, § 38.
The gist of the prosecution's proof was that a girl of about two years of age was severely beaten. Bruises were on all her limbs, torso and head. About February 16, 1970, Akins, in the office of the judge of probate (who then was acting as Juvenile Court Judge) spontaneously stated that he whipped the child. No lawyer attended him when he said this.
I
We hold that this statement was not within the restrictions of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Moreover, we do not think the Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, should be applied retroactively.
II
In brief, appellant argues that the trial judge erred in charging the jury that "murder" as embraced in the statute of concern included first and second degree murder as defined in Code 1940, T. 14, § 314.
Concededly § 314, supra, stems from an 18th Century effort, probably initiated by the Pennsylvania Legislature, to reduce the number of capital murders and, hence, arguably is nothing but putting Common Law murder into two compartments.
However, our Supreme Court has held that "murder" in § 38, supra, is Common Law murder only. Johnson v. State, 42 Ala. App. 511, 169 So.2d 773.
Nevertheless, since no exception was taken to the oral charge, this claim of error has not been reserved for our consideration. Alabama has no plain error doctrine except as construed in the Automatic Appeal Act.
III
We consider that the sufficiency of the evidence is not before us. See Alexander v. State, 44 Ala. App. 143, 204 So.2d 486; Trussell v. State, 44 Ala. App. 194, 195, 204 So.2d 839.
IV
Venue was not questioned in the trial court as prescribed in Circuit Court Rule 35.
We have reviewed the entire record under Code 1940, T. 15, § 389 and are at the conclusion that judgment below is to be
Affirmed.