Appellant, John Will Jordan, Jr., was indicted by the Grand Jury of Tuscaloosa County for breaking and entering into an inhabited dwelling in the nighttime, with intent to steal or commit rape (burglary in the first degree, Code 1940, Tit. 14, § 85, fixing punishment at death or imprisonment for not less than 10 years; Code 1940, Tit. 15, § 259, Form 29). The indictment was returned and filed in court on August 31, 1956. It consisted of two counts, Count I charging that Jordan "did in the nighttime, with intent to commit rape, break into and enter an inhabited dwelling house, the property of David White and Thelma White, which was occupied by Thelma White a person lodged therein," and Count II charging that he "did in the nighttime, with intent to steal or to commit rape, break into and enter an inhabited dwelling house, the property of David White and Thelma White, which was occupied by Thelma White, a person lodged therein, against the peace and dignity of the State of Alabama." At his arraignment on September 4, 1956, Jordan, being present in person and represented by counsel, for answer to the indictment, entered pleas of "not guilty" and "not guilty by reason of insanity," and the case was set for trial on September 12, 1956.
On the day set for trial Jordan filed a plea in abatement to the indictment questioning the formation of the Grand Jury which returned the indictment. Thereupon, the state moved to strike the plea and also demurred to it. The motion to strike was granted and the demurrer was sustained. One of the grounds of both the motion and demurrer was that the plea came too late, being filed after Jordan's pleas in bar.
On conclusion of defendant's evidence he withdrew his plea of "not guilty by reason of insanity."
The jury found defendant guilty of "burglary in the first degree as charged in Count Two of the indictment" and fixed his punishment at 30 years' imprisonment in the penitentiary. Judgment was rendered and sentence imposed in accordance with said verdict. Defendant's motion to set aside the verdict and judgment and grant him a new trial was overruled.
A threshold question relates to the propriety of granting the state's motion to strike defendant's plea in abatement. The record does not disclose whether defendant, prior to filing his plea in abatement, sought the court's permission to withdraw his pleas to the merits. Nor is there any indication that the trial court took any action which might be considered as approval of the filing of the plea in abatement. As already noted, said plea was filed after defendant was arraigned and entered pleas of "not guilty" and "not guilty by reason of insanity." We find no reversible error in the trial court's action granting the motion to strike the plea in abatement. Code 1940, Tit. 15, §§ 278 and 279; Payne v. State, 261 Ala. 397, 403(2), 74 So.2d 630; Wimbush v. State, 237 Ala. 153, 155, 186 So. 145. See Owen v. State, 255 Ala. 354, 356-357, 51 So.2d 541; Maund v. State, 254 Ala. 452, 458, 48 So.2d 553; Whittle v. State, 205 Ala. 639, 641-642, 89 So. 43. Since the motion to strike was properly granted, there is no occasion to discuss the ruling on the demurrer
As one means of identifying the defendant with the burglary the state offered in evidence a pair of trousers belonging to defendant. Grease stains found on this article were identified by a state toxicologist as matching similar grease stains at the kitchen window of the burglarized residence. To overcome this evidence the defense called as a witness one Andrew Hanson, defendant's half-brother and with whom the defendant lived. The tendency of the evidence elicited from him was that the grease stains were acquired when he and defendant were at the complaining witness' house helping repair a television antenna on Thursday afternoon before the alleged burglary early Saturday morning (about 12:30 a. m.). During his direct examination he was asked how long the defendant had been living with him where they are now living. He answered, "somewhere around a year." On his cross-examination the following occurred:
It is insisted that prejudicial error was committed in overruling the defendant's objections during the foregoing colloquy and denying his motion for a mistrial. We cannot agree that the said rulings constitute reversible error. The scope and extent of cross-examination rests in the sound discretion of the trial court and such discretion will not be revised on
One of appellant's attorneys, in his argument to the jury, attempted to argue the absence of any fingerprint evidence being introduced by the state. The state's objection to this line of argument was sustained. Appellant insists that this was error to reverse. Introduced in evidence by the state was a knife, identified as belonging to the defendant, which was found the morning after the alleged burglary on the ground beneath a window of the burglarized house, the screen of the window having been cut. No evidence was introduced by either side as to the presence or lack of fingerprints on said knife or in the house. The insistence is that the presence or absence of such fingerprints was within the peculiar knowledge of the state, thus making the failure of the state to produce evidence of fingerprints a legitimate subject of argument to the jury.
Appellant, in support of his contention, relies on the following from Waller v. State, 242 Ala. 1, 3, 4 So.2d 911, 913:
Here, there is no indication from the evidence that there was any attempt to secure fingerprints by any one, nor that the state had any unproduced witness having knowledge of such fingerprints. The state called as witnesses the investigating officers, including a state toxicologist, who were cross-examined by defense counsel. There was no mention of fingerprints in such cross-examination. These investigating officers were the witnesses who most probably would be expected to know about the presence or absence of fingerprints, and whether an attempt was made to secure fingerprints. They were in court, available to defendant, and, as already noted, were actually examined by him. Under these circumstances, we do not think it was proper to argue that the state was withholding evidence of fingerprints from the jury. Jarrell v. State, 251 Ala. 50, 55, 36 So.2d 336; Waller v. State, supra; Forman v. State, 190 Ala. 22, 27, 67 So. 583.
Being mindful of our duty in cases of this kind (Code 1940, Tit. 15, § 389; Payne v. State, 261 Ala. 397, 402, 74 So.2d 630; Johnson v. State, 257 Ala. 644, 646, 60 So.2d 818; Wesson v. State, 238 Ala. 399, 400, 191 So. 249), we have carefully examined the record to ascertain whether there is reversible error. Finding none, the judgment of conviction is due to be, and is, affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.