
    Charles B. SIMMONS v. STATE.
    3 Div. 757.
    Court of Criminal Appeals of Alabama.
    March 11, 1986.
    Rehearing Denied May 13, 1986.
    
      Jack W. Wallace, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty on a trial on an indictment that charged in pertinent part that “Charles B. Simmons ... did, intentionally cause the death of another person, Jessica Grant, by hitting her with his hand or an object otherwise unknown to the Grand Jury, in violation of Section 13A-6-2 of the Code of Alabama.” After the court adjudged the defendant guilty, a sentencing hearing was conducted subsequent to the State’s having given due notice to defendant and his counsel that it would proceed against defendant pursuant to the Habitual Felony Offender Act. The court sentenced the defendant to imprisonment for life, it being shown without dispute that defendant had been previously convicted of two felonies.

We now proceed to consider the only two issues presented in brief of counsel for appellant, which are:

“1. DID THE TRIAL COURT ERR IN DENYING THE DEFENDANT’S MOTIONS FOR JUDGMENT OF ACQUITTAL BY APPLYING THE SCINTILLA RULE?
“2. WAS THERE SUBSTANTIAL EVIDENCE OF EACH ELEMENT OF THE OFFENSE OF MURDER FOR THE COURT TO CONSIDER IN RULING UPON THE DEFENDANT’S MOTIONS TO EXCLUDE THE STATE’S EVIDENCE?”

It is to be noted that each of the two issues is substantially the same as the other, i.e., appellant contends by each of the issues that the evidence was not sufficient to present a jury question as to defendant’s guilt because in a criminal case a submission to a jury of the question of defendant’s guilt is dependent upon the existence of substantial evidence of his guilt, in contrast with the principle of law applied in civil cases that a plaintiff is entitled to have his case submitted to a jury if there is a scintilla of evidence in his favor as to the gravamen of his complaint.

According to the undisputed evidence, on the trial of this case, Jessica Grant, the alleged victim, was born December 21, 1981, of her unwed mother, Mary Ann Grant, and died at her home on the night of February 4-5, 1982. Mary Ann Grant was the first witness for the State on the trial of the case. She testified at length as to the circumstances of the death of her daughter. In the early part of her testimony, she stated that C.B. Simmons, the defendant, killed her baby.

Dr. Thomas Gilchrist, a forensic pathologist with the Alabama State Department of Forensic Sciences, was the second witness for the State. He testified that on February 5, 1982, he performed a post-mortem examination of the body of Jessica Grant and found that it was “thin and emaciated, small” and that “the actual cause of death” was “blunt injury to the head.” He further testified:

“A. There were several areas that had deep bruises on the head indicating a number of blunt injuries to the head.
“Q. Some worse than others?
“A. Yes.
“Q. Which was the worst one, please, sir?
“A. The bruises were on the right front at the very top of the left side in back of the head. The injury to the underlying brain was only below the one on the very top of the head.
“Q. And how severe was that injury to the brain?
“A. It’s a bruising of the brain which indicates a severe force applied to the head.
“Q. Would it have caused swelling of any nature?
“A. No. Injuries of this sort to the brain, actually bruising of the brain, always invariably results in swelling of the brain.
“A. Well, the time I saw the child, rigor mortis had not developed but libor [sic] mortis had. However, the development of rigor mortis in a severely emaciated infant is not as dependable as it is in adults. The body was cool but it had been cooler. My evidence would indicate that the body had been dead more than a day or two or three but then my evidence is not nearly as good as people at the scene. Because when I saw the body it had been placed in a cooler the evening before and locked in and secured. So body warmth and things like that were artificially changed.
“A. My opinion was that death occurred within two to three days. I didn’t say one or a half day. That would fit in that time frame; therefore, it would be consistent.”

Among the items of evidence relied upon in the brief of counsel for appellant was a copy of a statement given by Mary Grant to police officers, which was admitted into evidence as Defendant’s Exhibit 4. We now quote from appellant’s brief that part of her statement relied upon by appellant’s attorney:

“Q. Mary, what do you know about the physical abuse Jessica received, prior to the time of her death?
“A. Well, Mr. C.B. Simmons threw the baby against the floor. Well C.B. had been trying to go with me. He came to my house on Wednesday night which would be the 3 of February. He brought some gin with him. I think it was half a pint. He had been drinking before he got there. He set around and drank for a while, I had two drinks and C.B. had three drinks. C.B. got drunk and he started trying to have sex with me and this went on pretty well all night. He started tussling with me, he was cussing and hollering at me and he woke Patricia up. Patricia was hollering at C.B. and telling him to leave me alone. Jessie was crying too. Casandra was sitting up in the bed and she was crying too. He grabbed Jessica up by her feet and slung her head against the floor, then he picked Jessica up with both hands around her ribs and shook her. Then he throwed Jessica back on the bed. I went to him and told him what did he do that for and he shoved me down. I told him that I was going to call the police and he told me that he would kill me. Patricia tried to go out the door and he told her if she did that he would kill her. I started fighting him again and he went out the door. Oh, Patricia got the broom after him. Well that is about it.
“Q. Mary, what time did C.B. Simmons come to your house on the Wednesday you referred to in the other question?
“A. It was about 6:00 pm.
“Q. Mary, what time was it when he threw Jessica on the floor?
“A. It was in the early morning hours on Thursday about daylight.
“Q. Mary, what happened to Jessica after C.B. Simmons had thrown her on the bed?
“A. She cried about half of a minute then she stopped.
“Q. Mary, did Jessica ever cry any more after the half minute?
“A. No.
“Q. Was Jessica still alive when you put her down at 6:30 a.m.?
“A. Yes, she was.
“Q. Mary, who found Jessica dead on Thursday afternoon?
“A. My mother found that Jessica was dead in the bed about 2:30 pm. My mother had come to my house about 12 noon.
“Q. Have you told anyone else what you just told us?
“A. No.
“Q. Mary, why have you not told us this earlier?
“A. Because I was afraid that C.B. would kill me.
“Q. Mary, why did you call Cummings Funeral Home after Jessica was found dead and not the police?
“A. I did not know I was supposed to call the police.
“Q. Mary, have you told me the complete truth of your own free will?
“A. Yes, Sir.
“Q. Why have you told me this?
“A. Because I could not sleep and I know I was not telling ya’ll the truth.
“Q. Mary, is there anything else that you would like to add to this statement?
“A. No.”

There are further statements in brief of counsel for appellant that disclose that there were discrepancies in the testimony of the mother of the alleged victim, which included the following extracts from brief of counsel for appellant:

“On page R-44, 45 she testified that after the incident that Patricia did not go back to bed and she further acknowledged testifying previously that Patricia woke up a little while but finally went back to bed. She said that her prior testimony was a lie. On R-46 Mrs. Grant testified that her mother found the baby dead at 12:00 noon, and denied giving a statement to the police that her mother found the baby dead at 2:30 P.M. “Mrs. Grant testified that Abe and the Grandmother argued on the Tuesday pri- or to the baby’s death, but denied that anyone tried at that time to harm the baby. She acknowledged that her mother would stick all three babies with pins. The Defendant never touched the baby until this incident, and he never mistreated any of the children. R-51, 52, 53, 55, and 56.
“On pages R-65 and 66 Mrs. Grant testified that she had a little baby jar full of gin to drink on that night and denied testifying previously that she had two drinks. In her statement to the police, she stated that she had two drinks. Defendant’s Exhibit 4. She acknowledged that she did not tell the truth about the amount that she drank in her previous testimony. On pages R-66, and 67 Mrs. Grant testified that C.B. had been there some 2.5 hours when she went to the bathroom.”

At the conclusion of the presentation of testimony of the State, the following occurred out of the presence of the jury:

“MR. DAVIS [Attorney for defendant]: Your Honor, at this time the Defendant would move to exclude the evidence and for a motion for a directed verdict of acquittal. On the grounds, we feel the State has not established a prima facie case. I don’t know if they established venue as well. On those grounds we feel they have not made a prima facie case. We would move to exclude the evidence and also for a directed verdict of acquittal.
“THE COURT: All right. The Court is constrained to find there is a scintilla on each element of the offense charged and consequently obliged to deny the defense motion for a directed verdict of acquittal and to exclude the evidence.
“MR. DAVIS: All right, sir.
“THE COURT: Okay. Let’s take a break folks.
“(Whereupon, at 3:45 p.m. the Court recessed and at 4:05 p.m. the trial resumed.)”

The defendant then promptly commenced the presentation of his evidence, first by the witness Patricia Grant, the ten-year-old daughter of Mary Grant, who testified in pertinent part on direct examination as follows:

“Q. You remember Jessica, don’t you? Who was Jessica?
“A. A baby.
“Q. Do you know how old she was?
“A. (Indicating no.)
“Q. She was about six weeks old. She was real tiny, right?
“A. Uh-huh.
“Q. She used to cry a lot too, didn’t she? “A. Yeah.
“Q. Now, your grandmother didn’t like Jessica too well, did she?
“A. Uh-uh.
“Q. Your grandmother and her boy friend too, didn’t they?
“A. Uh-huh.
“Q. What was her boy friend’s name? “A. Abe.
“Q. Abe didn’t like the baby either, did he?
“A. Yeah.
“Q. He liked the baby?
“A. Uh-huh.
“Q. You told Ms. Hall he didn’t like the baby, do you remember telling Ms. Hall that?
“A. Yeah.
“Q. So Abe really didn’t like the baby, did He?
“A. Uh-uh.
“Q. And he and your grandmother used to stick pins in the baby, didn’t they?
“A. Yeah.
“Q. Why did they do that? They were being mean to the baby?
“A. Yes.
“Q. You didn’t like it when they were being mean to the baby, did you?
“A. No.
“Q. Did anybody cut her, cut the baby? Did you ever see anybody cut the baby with a knife?
“A. (Indicating no.)
“Q. Or just pins?
“A. Knife.
“Q. Who did you see with a knife?
“A. C.B.
“Q. You saw C.B. with a knife? When did you see C.B. with a knife?
“A. Wednesday night.
“Q. What time? Do you remember?
“A. Uh-uh.
“Q. Let me ask you about your grandmother some more. Did she ever tell you about not telling things that happened in your house?
“A. Uh-uh.
“Q. Did she say if you told what happened she wouldn’t buy anything for you? Do you remember telling me about that?
“A. Yeah.
“Q. Now, do you remember the first time you talked to Ms. Hall after Jessica died?
“A. Yeah.
“Q. What was the first time you talked to Ms. Hall? Was it that Friday?
“A. Yeah.
“Q. Did she come and pick you up from school? That was the Friday after Jessica died, right?
“A. Yeah.
“Q. You talked to her a long time, didn’t you?
“A. Yeah.
“Q. You talked to them [police officers] again, well, on that Friday you told them Wilk had hurt the baby, didn’t you?
“A. Yeah.
“Q. Okay. And then when you talked to them again on February, about February 11, which was about a week after Jessica died, you told them that your grandmother had been sticking pins in the baby?
“A. Yeah.
“Q. And you told them how they were at the house drunk there too, weren’t they?
“A. Yeah.
“Q. Who all was at the house drunk, if you remember? Wasn’t your mama there?
“A. And C.B.
“Q. C.B.? Did you tell Ms. Hall that C.B. was there?
“A. Yeah.
“Q. On February the 11th you didn’t tell Ms. Hall C.B. was there. I’m not talking about the third time you talked to Ms. Hall. I’m talking about the second time on February 11th, you didn’t tell her C.B. was there, did you?
“A. (Indicating no.)
“Q. You told her your grandmother was there? Do you remember now?
“A. Yeah.
“Q. You told her Abe was there?
“A. Yeah.
“Q. You told her Wilk was there?
“A. Yeah.
“Q. You said you were there and Casandra was there and Wilk had a knife after the baby’s neck trying to cut the baby. Do you remember telling Ms. Hall that?
“A. Yeah.
“Q. Didn’t you also tell that the baby got sick a lot and used to throw up? Do you remember telling Ms. Hall that? You don’t remember telling her the baby would get sick and throw up sometimes?
“A. Uh-uh.
“Q. Okay. Now, you told Ms. Hall your mother whipped you sometimes, didn’t you?
“A. Yeah.
“Q. When does your mother whip you?
“A. When I do something wrong.
“Q. You didn’t? Okay. Tell us what happened? Tell us what you saw C.B. do. Is it kind of hard to say? You don’t want to say what C.B. did?
“A. (Indicating no.)
“Q. Did you see him do anything on Wednesday night?
“A. Yeah.
“Q. Okay. Do you remember what time it was?
“A. Twelve.
“Q. Twelve o’clock.
“A. (Indicating yes.)
“Q. Did you go back to bed after that happened, after they had finished doing whatever happened?
“A. Yeah.
“Q. Okay. Do you remember what happened?
“A. When he had put the knife around her neck and twisted her leg, twisted her arm and throwed her on the bed.
“Q. Was this the bed in your room?
“A. (Indicating no.)
“Q. In the front room? You saw him put the knife to her neck?
“A. Yeah.
“Q. You remember telling Ms. Hall that you saw Wilk put the knife to her neck? “A. Yeah.
“Q. Then you didn’t say anything about C.B. did you?
“A. No.
“Q. Did you tell Ms. Hall the truth?
“A. (Indicating no.)
“Q. You didn’t tell Ms. Hall the truth? Why not? You didn’t tell Ms. Hall the truth?
“A. (Indicating no.)
“Q. Now, you said you saw C.B. sling her back on the bed. How did he pick her up? He picked her up, then what did he do?
“A. He put her back on the bed.
“Q. Did he put her back on the bed? “A. Yeah.
“Q. Did he put her down easy?
“A. (Indicating no.) No.
“Q. He didn’t?
“A. (Indicating no.)
“Q. How did he put her down? Did he throw her down hard?
“A. Yeah.
“Q. Did it hurt?
“A. (Indicating no.)
“Q. Did she start crying?
“A. Uh-uh.
“Q. She didn’t cry?
“A. (Indicating no.)
“Q. Okay. Let’s go back to that. Did you say before C.B. came over there? Do you remember when your grandmother was over there and Wilk and they were arguing and they were on the floor drunk? Do you remember that?
“A. Yeah.
“Q. What all happened then? They started fighting that day too, didn’t they?
“A. Yeah. In the front room.
“Q. That’s where the baby sleeps, wasn’t it?
“A. Yeah.
“Q. And you told Ms. Hall that they picked up Jessica and threw her on the floor too, didn’t you?
“A. Yeah.
“Q. And your grandmother and Wilk were saying mean things to the baby, weren’t they?
“A. Yeah.
“Q. Do you remember what they said? Do you want to tell us? Bad things? Did they say real bad things?
“A. (Indicating yes.)
“Q. Okay. I’m going to ask you a few more questions, okay? I'm showing you what’s marked defendant’s Exhibit number seven. All right. Is that your signature on there?
“A. Yeah.
“Q. Okay. So this is a statement that you made to Ms. Hall on March the 8th?
“A. Yeah.
“Q. Okay. And your mama was not at home when you made this statement was she?
“A. (Indicating no.)
“Q. You had talked to your mother about this, hadn’t you?
“A. (Indicating no.)
“Q. In this statement you had talked to Ms. Hall and Officer Brock. Didn’t you tell them that C.C. [sic] came to your house on Wednesday afternoon to see your grandmother. Your grandmother was there on Wednesday afternoon?
“A. Yeah.
“Q. C.C. [sic] came by to see her?
“A. Yeah.
“Q. They started arguing?
“A. Yeah.
“Q. What were they arguing about?
“A. I don’t know.
“Q. Did C.B. ever say anything bad about Jessica? Did you ever hear him say any bad words about Jessica? He never said anything bad, did he?
“A. No.
“Q. He never said anything bad to you, did he?
“A. Yeah.
“Q. He did? What did he say to you? “A. He said he was going to kill me. “Q. Okay. What did he say to you? You can’t remember?
“A. (Indicating yes.)
“Q. Okay. Let’s try it again. What did C.B. say to you that time?
“A. He said if I tell anybody he was going to kill me.
“Q. Your mama told you C.B. was a bad man?
“A. No.
“Q. You think he is a bad man?
“A. Yeah.
“Q. You think C.B. is a bad man? Did C.B. ever treat you bad when he was over there?
“A. (Indicating yes.)
“Q. He did? What did he do? You telling me the truth? What did C.B. do to you? Tell me what C.B. did to you. Come on. You said C.B. did something bad to you. What did he do? Did he ever curse you or say bad things to you? You don’t want to tell me?
“A. (Indicating no.)
“Q. Let me ask you this now: you said when Wilk, when you told Ms. Hall that Wilk and your grandmother and Abe were at the house, this happened on that Tuesday before C.B. came over, right? That was the day before, right?
“A. Yeah.
“Q. Okay. And this was when they were fighting and carrying on that Tuesday before, right?
“A. Yeah.”

On cross-examination by the State, Patricia Grant testified in part as follows:

“Q. Do you see in Court today the man who hurt Jessica Wednesday night before she died, the man you said put a knife on her throat, twisted her leg and threw her down? Do you see him in Court today?
“A. Yes.
“Q. Can you please point him out? Okay, what does he have on?
“A. Black, white.
“Q. What color shirt?
“A. White.
“Q. What color tie?
“A. Black.
“MS. ENFINGER: Let the Record reflect she indicated the Defendant.
“THE COURT: So noted.
“Q. (By Ms. Enfinger) Have you ever seen him before that Wednesday night, Trish? Have you ever seen C.B. hurt Jessica before that?
“A. No.
“Q. Who is Wilk, Patricia, is there really a Wilk?
“A. No.
“Q. Is Wilk a made-up name?
“A. Yeah.
“Q. Okay, Trish, you remember the Wednesday night before Jessica died on Thursday before you found out. Can you just look at these ladies and gentlemen again and just tell them exactly what you saw C.B. do to Jessica? Can you do that one more time? What exactly did you see C.B. do to Jessica?
“A. Put a knife around her neck.
“Q. And did you see him do something else to her?
“A. Twisted her leg. Twisted her arm and throwed her back on the bed.”

The next and final witness for the defendant was the defendant himself. He testified that he had known Mary Grant since 1980, that Mary Grant had come down to his place, that he and she “started making friends with each other” and that they were on “intimate terms,” meaning that he had “sexual relationship with her.” His testimony continued in pertinent part as follows:

“Q. How many times did you visit Mary Grant between the time the child was born and February 1982? Can you estimate?
“A. Oh, I would go see her once or twice a week, sometimes three times.
“Q. Did you go to Mary Grant’s house on Wednesday, February 3rd, 1982?
“A. Didn’t go there in the daytime. I didn’t go until the night.
“Q. What time of night did you go to her house?
“A. Approximately 11:45 because I was waiting for my brother to call.
“Q. Okay. How did you get in when you went to her house that night?
“A. Just knocked on the door.
“Q. What time did you say it was anyhow?
“A. About 11:45, I guess.
“Q. When you knocked on the door, who let you in?
“A. Mary.
“Q. Did you take anything with you when you went to her house?
“Q. You say you got there at 11:45. What did ya’ll do once you got there?
“A. We sat there and talked awhile, then we had a relationship and I got ready to leave.
“Q. Did you and Mary have sex that night?
“A. Sure did.
“Q. Did you ever hit the baby?
“A. Never. I wouldn’t dare to hit no baby. Wouldn’t like nobody hitting a baby around me.
“Q. Now, you testified, I’m sorry, Mary testified that you picked the baby up off the bed and threw it to the floor, or so she thought. Is that true?
“A. No. It’s not true.
“Q. Did you pick the baby up on the Wednesday night that this happened?
“A. On the Wednesday night, I ain’t seen no baby to pick up. Just like she was sitting up there with no baby. That’s all she was. She was sitting there by herself alone. She said she was worried or something about her money and her gas was cut off.
“Q. Okay. When did you learn that something had happened to this baby?
“A. I didn’t learn it until that Friday evening when I went—
“Q. That Friday evening what?
“A. I went by there Friday.
“Q. You went by Mary’s house on that Friday? What happened on that Friday?
“A. When I drove up I got out and went inside and she told me, said you have heard about my baby passed, didn’t you? I said no. I said what happened to it? She said the baby died naturally. She said the baby had been sick.
“Q. Did you at any time touch Jessica Grant?
“A. Never have touched her.
“Q. You heard Mary testify that you threatened to kill her if she told what happened Wednesday night. Is that true?
“A. That’s false.
“Q. Did anything happen that Wednesday night involving Jessica Grant?
“A. Nothing happened at that house all the time I was there. No day I was there nothing happened, no night.
“Q. Mr. Simmons, tell me, how did Mary treat Jessica Grant?
“A. She was pretty cruel to all of them.
“Q. Explain that, please.
“A. Well, one thing about her, she would cuss them. The baby, the big girl, she would get in the room and try to beat her and I told her she ought not to do that. She said she was hers. The baby, I used to tell her she shouldn’t slap on the baby like that, it was too little. She said it was hers. I didn’t have anything to say about it.
“Q. Did she act like she loved the baby?
“A. She said she didn’t even want the baby. She had made statements that she was going to put him in the garbage can or something.”

We have endeavored hereinabove to set forth some of the evidence tending to show the guilt of the defendant and some of the evidence tending to show that he was not guilty. It is not within our province to determine whether evidence tending to show the defendant’s guilt was stronger than was the evidence tending to show that he was not guilty, as neither this Court nor the trial court has been called upon to pass upon that question. We are convinced that the evidence of defendant’s guilt was substantial, that it was more than a mere scintilla and, therefore, the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article; his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur, except TAYLOR, J., who recuses himself.

ON APPLICATION FOR REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

Appellant’s brief and argument in support of his application for rehearing is accompanied by a Rule 39(k), ARAP, request that consists of approximately three-fourths of the fifteen-page brief, with which request we comply, even though its contents shed little more light on the only issue raised in the brief on application for rehearing than do the facts stated in the opinion rendered by us on original submission. The contents of the Rule 39(k) requests are as follows:

“Mary Grant is the mother of Jessica Grant, who was born on December 21, 1981, and died on February 4, 1982. (R. 4-5). Mrs. Grant testified that C.B. Simmons, the Defendant, whom she had known for about a year, killed Jessica. (R. 5-6). She would see the Defendant at his place of business and often he would come to her house. (R. 6-7). She testified that on February 4, 1982, the Defendant came to her house about 6:00 p.m. on a Wednesday evening, and brought a half-pint of gin and both of them drank some of the gin. (R. 7-8). She testified:

“ ‘Somehow the baby was hollering at the time and I got to go and get the — fix her bottle to give to her. And I sat there to give the baby the bottle. So I laid her back in the bed. Then after that I got up and left and went to the bathroom. And about the time I got back up there the baby was on the floor ... In the front room.
“ ‘Q. Did you hear any noise when you were back in the bathroom?
“ ‘A. Yes, sir. It sounded like a tumbling or something.
“ ‘Q. Okay, And when you got back up there, what happened?
“ ‘A. The baby was on the floor and C.B. wasn’t too far from the baby.
“ ‘Q. What did you say to him, if anything?
“ ‘A. I said, why did you dump my baby on the floor. That’s when me and him went to tussling, fighting.
“ ‘Q. What, if anything, did he do to the baby?
“‘A. Sir?
“ ‘Q. What happened to the baby? You said the baby was on the floor?
“ ‘A. Yes, sir.
“ ‘Q. And you and C.B. went to tussling and fighting?
“‘A. Right.
“ ‘Q. And then what happened?
“ ‘A. Me and him was tussling and fighting and so I asked why he would throw her on the floor. So he went to cussing me. I checked the baby.
“(R. 7, 8, and 9).

“Mrs. Grant further testified that no one else but her, the Defendant, and her three children were present when this occurred. This happened pretty close to midnight and that the Defendant left after this incident whereby Jessica was hurt. (R. 10). She testified that she and the Defendant argued about whether or not to engage in sexual intercourse. (R. 10).

“Upon cross examination, Mrs. Grant testified that she had lost one child to miscarriage and another when the midwife cut the naval string too short. (R. 11). Jessica weighed 5.5 pounds at birth and was in good health at birth. (R. 12).

“Mrs. Grant acknowledged that she testified on 6-24-82 that the Defendant was present in her home for a total of twenty-four hours at this time. She maintained in the face of her testimony at trial that he arrived at 6:00 p.m. and left between the hours of midnight and 1:00 a.m. that he was present for twenty-four hours. (R. 16). She acknowledged that she probably did tell the District Judge in sworn testimony that the Defendant arrived around 4:00 p.m., but stated that if she did so testify, it was not true because he arrived at 6:00 p.m.

“On page R. 21, Mrs. Grant testified that she did not see the Defendant throw Jessica on the floor. On page R. 23, she testified that she was confused when she said that she did not see him throw the baby upon the floor, saying, “After the baby was on the floor, then he picked the baby up and slammed her against the floor.” '

“On pages R. 24 and 25, Mrs. Grant testified that after she and the Defendant f aught and he threatened her and her child, that the Defendant left and did not say anything else. Defense counsel asked, ‘Do you recall telling Judge Sankey and also testifying on June 24, that he said I’m tired of that damn baby hollering?’ Upon further cross, she testified ‘He didn’t say nothing else after me and him had the argument and fighting. He went outside in my yard.’ (R. 25).

“At trial, Mrs. Grant testified that when she picked the baby up from the floor that the baby was dead, but she acknowledged testifying previously the baby was not dead when she picked her up. (R. 29).

“Mrs. Grant testified that she was aware of the numerous bruises and old injuries on the baby but denied that she knew who inflicted them on the baby. Only two people kept Jessica for Mrs. Grant and these were her mother and Mrs. Hill. (R. 36, 37). She denied that she knew that Jessica’s leg had been previously broken. She testified that she fed the baby regularly. The baby cried a ‘right smart.’ (R. 37).

“Mrs. Grant first talked to the police the day that Jessica died, but was in shock. She did not tell the police that the Defendant committed the offense at that time. She talked to the police on the following Friday and still did not tell them about the Defendant. She did not tell the police about the Defendant until 3-5-82, after she had been under arrest and held in jail for 3 days on a charge of child abuse. (R. 39 and 40). She gave a statement to the police, admitted into evidence as Defendant’s Exhibit 4 at R. 45.

“On page R. 44 and 45, she testified that after the incident that Patricia did not go back to bed and she further acknowledged testifying previously that Patricia woke up a little while but finally went back to bed. She said that her prior testimony was a lie. On R. 46, Mrs. Grant testified that her mother found the baby dead at 12:00 noon, and denied giving a statement to the police that her mother found the baby dead at 2:30 p.m.

“Mrs. Grant testified that Abe and the grandmother argued on the Tuesday prior to the baby’s death, but denied that anyone tried at that time to harm the baby. She acknowledged that her mother would stick all three babies with pins. The Defendant never touched the baby until this incident, and he never mistreated any of the children. (R. 51, 52, 53, 55, and 56).

“On pages R. 65 and 66, Mrs. Grant testified that she had a little baby jar full of gin on that night and denied testifying previously that she had two drinks. In her statement to the police, she stated that she had two drinks. Defendant’s Exhibit 4. She acknowledged that she did not tell the truth about the amount that she drank in her previous testimony. On pages R. 66 and 67, Mrs. Grant testified that C.B. had been there some 2.5 hours when she went to the bathroom.

“Dr. Thomas Gilchrist of the Department of Forensic Sciences testified as to the cause of death. , He testified that the child, small and quite emanciated [sic], died of blunt trauma to the head. (R. 74). The child was suffering from severe malnutrition which was a significant factor in the death. She weighed 4.5 pounds at death. (R. 75). The child had numerous injuries inflicted upon it in its short life. Several weeks prior to her death, Jessica’s left leg was broken, and had begun to heal. It was re-injured at the time of her death. (R. 75 and 91). She had numerous fresh and healing abrasions, some of which were from two to five days old. (R. 74, 75 and 89). Her ribs were freshly broken. (R. 75).

“Billy Wayne Smith is an investigator with the Montgomery Police Department and he investigated the scene after receiving a report that a baby was dead. He subsequently conducted a photo lineup in which the Defendant was identified as the killer by Patricia Grant, the oldest daughter of Mary Grant. (R. 95, 96, 97 and 98). He took the statement from Mary Grant on March 5, 1982, and thereafter obtained a warrant for the arrest of C.B. Simmons. (R. 104). Upon the Defendant’s arrest, he stated that he was unaware of what happened to Jessica and denied being in the Grant home on the night in question. (R. 106). Smith testified that he had reports of a disturbance in the Grant home on the Tuesday preceding the death of Jessica, and that these reports involved the grandmother, Abe, Wilk, and Jessica. (R. 112).

“Josephine Hill lives next door to Mary Grant and has lived there for 23 years. (R. 114). On Wednesday night in question, Mrs. Hill saw the Defendant upon the porch of Mary Grant around 11:30 or 12:00 p.m. (R. 115). The houses are close to one another and she could hear any disturbance at Mary’s house if she were not asleep. On this evening she was watching t.v. when she saw the Defendant and did not hear a disturbance. (R. 118, 119).

“Patricia Grant was called as witness for the Defendant. She testified that she saw the Defendant put a knife around the neck of Jessica, and saw him twist her arm and leg before he threw her hard upon the bed. (R. 131, 133). She pointed out the Defendant as the assailant. (R. 139). She denied that anyone named Wilk hurt Jessica, and upon cross examination stated that Wilk was a made up name. (R. 138). She testified that she went back to bed after the incident. (R. 140). She gave a statement to the police on 2-11-82 which was introduced as Defendant’s Exhibit 5. She states in pertinent part:

“ ‘Q. Do you know anything about why Jessica got sick and went to live with Jesus?
“ ‘No.
“ ‘Q. When did Jessica get sick?
“ ‘A. Not this past Tuesday, but the Tuesday before that.
“ ‘Q. How was Jessica sick?
“ ‘A. She started crying, then she started throwing up.
“ ‘Q. What time of day did you see Jessica getting sick?
“ ‘A. Around 7:00 in the morning, that Tuesday.
“ ‘Q. Who all was at your house that Tuesday?
“ ‘A. Me, my mama, a man named Wilks, Cassandra and Jessica.
“ ‘Q. Did you stay home all day that day?
“ ‘A. No, I got up and got dressed, and ate some fried chicken, studied my lessons, then turned on the t.v. and watched fcv. Wilk started messing with Jessica. He was fumbling around the bed, and had his knife out, with the blade open, and was trying to cut her neck. He and my mama started fighting and he tried to cut her, and she tried to get the knife from him, and the knife fell on the floor, and he ran out the back door and jumped over the fence.
“ ‘Q. Where did Wilk get the knife you saw him try to cut Jessica and your mother with?
“ ‘A. I saw him get it from the t.v. it was a pocket knife with two blades, and he had it on the t.v. all night.
“ ‘Q. Did Wilk spend the night at your house that Monday night?
“ ‘A. Yes, he slept on the floor in the front room that night, and I did too, I unusually [sic] sleep in the back room, but I slept in the front room that night, cause I didn’t want Wilk to hurt my sister. Jessica slept in the front room that night on the bed on the left, I slept on the Couch, and he slept on the floor between us, I was told by grandmother, that Wilk, had cut another little girl, named Lisa, and that he had killed her. The little girl’s mother is Betty Jean Robinson, who is my aunt.
‘“Q. Is Wilk you mother’s boyfriend?
“ ‘A. No, he is my grandmother’s boyfriend.
“ ‘Q. Have you ever seen anyone else besides Wilk to hurt Jessican? [sic]
“ ‘A. Yes, my grandmother, I saw her stick baby diaper pins in her leg and make it bleed, and she was saying bad words to Jessica, and I ran to the kitchen and told mama and she came in there and told my grandmother to stop and then they started fighting and my grandmother hit my mama.
‘Q. When did you see your grandmother stick the pins in Jessica?
‘A. That same Tuesday, it was about 8:00 at night, me, Cassandra, Jessica, my mama, my grandmother and Wilk he was laying on the floor drunk.
“ ‘Q. Have you ever heard anyone say they would want to hurt Jessica?
“ ‘A. Yes, my grandmother, she hollers all the time, the only one she loved was Cassandra.
‘“Q. That Tuesday when Jessica got sick did you go to school?
‘A. Yes sir, I went up to Mrs. Green’s house to catch a ride, and on the way I saw my grandmother, she was going over to my house. When I got home, my mama, my grandmother, Cassandra, Jessica and Wilk was there. Jessica was asleep and then she woke up after about an hour, hollering.
‘Q. Who spent the night at your house that Tuesday night?
‘A. Me, my mama, Wilk, my grandmother, Cassandra, and Jessica. I slept in the front room again, with Jessica, my grandmother slept in the back room, Wilk slept on the floor again in the front room, and my mama slept in the chair in the front room.
“ ‘Q. When you got up on that Wednesday morning, was Jessica crying?
“ ‘A. No, she was just laying there with her eyes open, playing.
“ ‘Q. When you got home Wednesday from school, did you see Jessica playing in her bed?
“‘A. Yes.
‘Q. Who spent the night at your house that Wednesday night?
“ ‘A. Me, my mama, Cassandra, Jessica, my grandmother, and her other boyfriend, Abe Lewis.
“ ‘Q. Where did each of you sleep that night?
“ ‘A. I slept in the back room with my grandmother, and Abe, in the same bed, my mama slept in the chair in the front room, Jessica slept on the bed in the front room, and Cassandra slept on the couch in the front room.
“ ‘Q. When you woke up Thursday morning, was Jessica crying before you went to school?
“ ‘A. She was laying in the bed hollering.
‘Q. Who all was at your house when you left to go to school last Thursday morning?
“ ‘A. My mama, my grandmother, Cassandra, Jessica, Wilk, and Abe, he came back for my grandmother to wash his clothes.
“ ‘Q. Did anything happen that morning?
“ ‘A. Yes, Abe and Wilk started fighting over my grandmother, in the front room where Jessica was, and she was hollering, and they were drinking whiskey.
“ ‘Q. What happened that Thursday afternoon when you got home from school?
“ ‘A. Wilk and my grandmother started fighting because she didn’t want to go with him any more. They were fighting in the front room, where my mama, Cassandra, and Jessica were at, and I was in my room in the back and saw Wilk holding Jessica by the head, and then he threw her on the floor, then my mama picked her up and layed her in the bed. She told him she was going to kick his ass, then he started to fight my mama, and she said I’m going to call the police, and Wilk then ran out the back door. I also saw Wilk twist Jessica’s leg. My mama told my grandmother, that Wilk shouldn’t have done that to the baby, and my grandmother said he should have killed her.’

“After her mother was placed in jail, Patricia viewed a photo lineup and identified the defendant as the assailant. She gave a statement to the police, Defendant’s Exhibit 7, in which she stated in pertinent part:

“ ‘Q. What all can you tell me about this man you picked out of the folder, concerning him coming to your house, and what all he done and said, that night that little Jessica was hurt?
“ ‘A. C.C. [sic] came to my house on a Wednesday in February in the afternoon to see my grandmother. They sat around and talked and drank some wine. I think they called it Thunderbird. My mama and C.C. [sic] got into an argument but I don’t know what it was about. My grandmother and C.C. [sic] was fighting too, but I don’t know why. After they had stop [sic] fighting my grandmother left and went home, to pick up my cousin. I think it was around 6:00 p.m. when she left. C.C. [sic] stayed there at my house, around the front room, where my mama was asleep in the chair. I went to bed in the back bedroom that night and I woke up and heard my mama and C.C. [sic] fussing in the front room. I got up and saw them fighting and I saw C.C. [sic] hitting my mama, so I went to the kitchen and got the broom and hit him on the shoulder and he didn’t do anything, he just kept on fighting my mama. I got the broom after him but I can’t remember if it was before he hurt Jessica or after. I got out of bed and he was trying to cut Jessica around the neck and that is when my mama started hitting him. He started hitting her and they were both cussing. I saw C.C. [sic] pick Jessica up by the head, and he twisted her leg, and throwed her back on the bed. That is when he got the knife and put it around her neck. Then my mama started fighting him, and told me to go get the broom and I did and went up there and started hitting C.C. [sic]. Then my mama said I’m going to call the police and he said I’ll kill you if you call the police and then he told me I’ll kill you if you tell anybody what I did to your mama. Then he told my mama he was going to kick her ass. The he left.’

“Charles B. Simmons testified in his own behalf, and in essence stated that he did not kill the baby and knew nothing about it. He admitted that he was there for something over an hour on that evening, having arrived about 11:45 p.m. He stated that he and Mrs. Grant had sex, and that she drank some gin that he carried to her. He denied drinking any of the gin himself. He stated that he went back to her house the next night and she stated that her baby had passed.”

Having completed compliance with appellant’s Rule 39(k) request, we now discuss the argument of the attorney for appellant in support of his contention that the judgment of the trial court should be reversed, which is divided into two separate parts that we now separately consider. In the first part, the position is taken that the trial judge applied the scintilla rule in determining that the case should be submitted to the jury. Appellant’s attorney bases his contention upon what was stated by the trial judge promptly after the State had rested and the following occurred out of the presence of the jury:

“MR. DAVIS [Defendant’s trial attorney]: Your Honor, at this time the Defendant would move to exclude the evidence and for a motion for directed verdict of acquittal. On the grounds, we feel the State has not established a prima facie case. I don’t know if they established venue as well. On these grounds we feel they have not made a prima facie case. We will move to exclude the evidence and also for a directed verdict of acquittal.
“THE COURT: All right. The Court is constrained to find there is a scintilla on each element of the defense charge and consequently obliged to deny the defense motion for a directed verdict of acquittal and to exclude the evidence.
“MR. DAVIS: All right, sir.
“THE COURT: Okay. Let’s take a break, folks.
“Whereupon, at 3:45 p.m. the Court recessed and at 4:05 p.m. all parties being present the trial proceeds....”

We agree with counsel for appellant that by the use of the word “scintilla” the trial judge was employing language that is applicable in civil cases as to a plea of the general issue but is not applicable in criminal cases as to the plea of not guilty. It is unfortunate that the word was employed, as it has no place in the trial of a criminal case. It is fortunate that it was not used by the trial judge in the presence of the jury. On the other hand, the trial judge in its own charge to the jury instructed the jury fully and correctly as to the burden of proof, that as to defendant’s plea of not guilty the burden was upon the State to prove by the evidence beyond a reasonable doubt that defendant was guilty, while as to the defendant’s plea of not guilty “by reason of mental disease or defect,” the trial judge stated to the jury, inter alia, “by his plea raising the issue of whether he was mentally responsible for his alleged acts, the Defendant assumes the burden of proving to your reasonable satisfaction that at the time of the commission of the alleged act, committing all or an essential element of the offense with which he is charged, that he, the Defendant, was suffering from mental disease or defect and that as a result of such mental disease or defect the Defendant was either unable to appreciate that committing the alleged acts would constitute a criminal conduct or was unable to conform his conduct to the requirement of law, or both.”

Our consideration of the brief of counsel for appellant in support of the application for rehearing convinces us that there is much to be said in favor of the contention of appellant that the weight of the evidence was in favor of defendant, but we are not convinced that the trial court committed reversible error in overruling defendant’s motion for a new trial. As stated in White v. State, 294 Ala. 265, 314 So.2d 857, at page 864 (1975), cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288:

“A trial judge has the power to grant a motion for a new trial if the verdict is contrary to the great preponderance of the evidence, or if there is newly-discovered evidence. Davis v. State, 245 Ala. 589, 18 So.2d 282 (1944). Granting the motion is largely within the discretion of the trial court, whose discretion should not be exercised to grant the relief sought except in plain cases of deviation from justice and right.”

Of the large number of reported cases on the particular subject, appellant’s attorney cites only the case of Sutherland v. State, 24 Ala.App. 573, 575, 139 So. 110, 110 (1932) from which the following is quoted:

“The conviction of this defendant rests upon the testimony of Burt Dunn and Tom Burchfield, one of whom is an ex-convict, and both are shown without dispute to be men of bad character and unworthy of belief on oath. Both of these men had an equal opportunity to have killed deceased and in fact, according to their own statements, were at the camp and within thirty-eight feet of the dead body for an hour before defendant returned to camp, and their testimony as to what occurred when defendant did return is identical as to detail. The defendant proved a good character and denied any connection with the crime, saying that when he returned to camp the deceased was lying near the camp dead. No motive is shown for the crime and but for the testimony of Dunn and Burch-field rests in inferences to be drawn from the facts, many of which could be made to apply with equal force to some other than the defendant as the guilty agent. While the facts are in dispute, we think that from all the facts and circumstances evoked on the trial the defendant should have a new trial.”

The facts in the instant case are distinguishable in many respects from the material facts stated in Sutherland v. State, particularly in that the defendant herein did not prove “a good character” as did Sutherland. In our opinion, neither Sutherland nor any other reported case on the subject is to the effect that the trial court in the instant case should have granted defendant’s motion for a new trial.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur, except TAYLOR, J., who recuses himself.  