LEIGH M. CLARK, Retired Circuit Judge.
This is an appeal from a judgment of conviction and sentence in a case in which a jury had found defendant guilty under an indictment charging that he did "unlawfully possess marijuana, a controlled substance, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Title 20-2-70 of the Code of Alabama, 1975."
The principal issue raised by appellant is as to the admissibility of the evidence of the results of the search of defendant's automobile, which, according to the undisputed evidence, including the testimony of a qualified "Crime Laboratory Analyst" experienced in chemical analyses, consisted of the following: "0.11 of a gram of marijuana found in the glove compartment of the automobile; 3.24 grams of marijuana contained in a penny match box found on or about the front seat of the automobile; 0.06 gram of marijuana contained in 2 partially smoked cigarettes and 1 'Joker' brand cigarette papers also found in the automobile."
The question as to the admissibility of the evidence arose during the testimony of Investigator Roy Tabb of the Covington
County Sheriff's Department, who testified in pertinent part as follows:
"I was sitting on a location in Opp, on the look-out for a vehicle that we thought may have been involved in the previous case that I was working on, and the car occupied by two subjects passed me. The license plate was hanging off the back of it in an awkward angle like it had been just tacked on, and they were driving on the wrong side of the road.
"Q. You observed the license tag, as they were driving on the wrong side of the road, of this vehicle?
"A. Yes, ma'am.
"Q. And then what did you do?
"A. I pulled over behind them. They pulled into the yard on Cummings Street. I pulled in behind them with my blue light on.
"Q. And, then, what happened, please?
"A. I went to the car.
"....
"Q. Alright, you proceeded to the car. Is that what your last statement was, Mr. Tabb?
"A. Yes.
"Q. And, when you got to the car, what did you observe, if anything?
"A. I observed the driver appeared to be concealing something under his hand between him and the passenger.
"....
"Q. Did you observe anything else at that time?
"A. At that time I thought that they may have had a weapon, and I asked them to get out of the car.
"Q. You were looking for a weapon?
"A. I didn't know what he had concealed, ma'am.
"THE COURT: I believe he said he asked them to get out of the car.
"Q. And, when they got out of the car, then what happened, please.
"A. I asked the driver to produce a driver's license, and he could not.
"Q. Alright.
"MR. COLQUETT [Defendant's attorney]: Could not?
"A. He said he didn't have one. He was only driving the car as a favor to his friend, the car belonged to his friend that was with him [the appellant herein].
"....
"Q. And, then, what happened after that?
"A. I looked into the passenger's compartment where I saw his hand earlier, and while I was looking in there, I observed a burned hand-rolled cigarette butt laying on the floorboard.
"Q. Was that on the driver's side or the passenger's side?
"A. It was laying in a compartment of a container on the drive shaft hump between the two of them.
"....
"Q. They had already stopped when you stopped, had they not?
"A. They stopped when I pulled in behind them, yes sir. I didn't know that they lived there at that time, or if that was where they were going. It just happened that way.
"Q. It wasn't a period of time after they stopped before you got out?
"A. No, sir.
"Q. You are as sure of that as you are the rest of your testimony?
"A. Yes sir.
"Q. And, you asked if you could look inside the car. Is that your words?
"A. That's correct.
"Q. And, you were told to go ahead?
"A. Yes sir.
"Q. Is that your words?
"A. Yes sir.
"Q. Alright.
"A. I'm not quoting directly, but that was an inference.
"Q. Was that all that was said? That's all you asked, if you could look inside the car?
"A. Yes.
"Q. And, who told you to go ahead?
"A. Mr. Taylor."
All of the testimony quoted above was taken out of the presence of the jury at the
request of the defendant, which was concluded as follows:
"RECROSS-EXAMINATION
"BY MR. COLQUETT [Defendant's attorney]:
"Q. One further question, did you know for a fact that those roaches or cigarettes contained marijuana when you saw them?
"A. No sir. They appeared to be.
"MR. COLQUETT: That's all, now, we move to exclude any testimony in regards to the search, anything that was found at the search or any statement that was made subsequent to it, by this defendant or any other person.
"THE COURT: Overruled.
"MR. COLQUETT: We accept [which we construe as except].
"(Whereupon court was recessed.)"
Soon thereafter, the same witness testified in the presence of the jury. A pertinent part of his testimony follows:
"Q. Then, what happened after you spoke with the driver?
"A. I looked in the car toward where I thought something was being concealed, and while doing so, with my flashlight, I could see a partially rolled, hand-rolled cigarette butt laying in the compartment on the hump between the two passengers of the car.
"Q. And, what did you do then?
"A. I then, looked further with my flashlight, and I saw another hand-rolled cigarette butt laying on the floorboard below the passenger's seat, front seat.
"MR. COLQUETT: Now, if it please the Court, we move to exclude this entire testimony. They had no right to be looking in that automobile.
"THE COURT: Overruled.
"MR. COLQUETT: We accept [which we construe as except].
"THE COURT: You may proceed.
"Q. And it was on the side of the car which Mr. Taylor was sitting, the defendant here was sitting?
"A. Yes ma'am.
"Q. And, after you saw these two things, what did you do then?
"A. I advised both gentlemen of their rights. I read them their rights off of a meranda [which we construe as Miranda] card. I looked at them. They both appeared unsteady, eyes were bloodshot. I shined my light in their eyes and their pupils were dilated and didn't react to the light. At that time, I asked them for permission to check inside the vehicle further.
"Q. And, were you given permission to look inside the vehicle further?
"A. Yes ma'am.
"Q. And, who gave you that permission?
"A. Mr. Taylor.
"Q. What did you do then?
"A. I looked into a casette tape carrying case, on the front seat, which was between the two of them. And inside I found a package of Joker cigarette rolling papers.
"MR. COLQUETT: We object.
"THE COURT: Overruled.
"MR. COLQUETT: We except.
"A. A small Diamond match box containing a quantity of what appeared to be a green leafy vegetable material, which appeared to be marijuana to me.
"....
"Q. And, what else did you find?
"A. I then looked in the glove compartment of the automobile and found a quantity of seeds and stems and what appeared to be more marijuana debris."
As a caption to the principal contention in appellant's brief, he states:
"When the State relies upon consent to justify a search and seizure of evidence to incriminate, the consent must be given under circumstances to justify a waiver of known rights. This is not a matter that can be presumed, but the State has the burden of proving that the consent or waiver was given voluntarily without inducement or coercion and with knowledge of the right to refuse the request to search. HENDERSON VS. STATE, 49
Ala.App. 275, 270 So.2d 822, and cases cited thereunder."
Appellant is correct in citing Henderson v. State, in support of the quoted caption in his brief. However, it should be noted that it was not held in Henderson v. State that the facts therein were not sufficient to show that the search of the automobile involved was valid, and appellant does not seem to claim otherwise. It appears that he uses the quoted caption as a prelude to the second issue presented by him, which is thus captioned as a correct direct quotation from Henderson v. State, supra:
"Testimony was offered by the State outside the presence of the jury on the question of consent to search. At the conclusion of the testimony offered by the State on this question, the attorney for the appellant requested permission of the court to examine the appellant in rebuttal to the State's testimony. The request was refused by the court and proper objection and exception taken by the appellant to this action. In this respect the court committed reversible error."
Appellant then argues, "The facts on this issue are identical with the facts stated above in the Henderson case." We disagree with this statement, which appellant bases on the part of the transcript of testimony "offered by the State outside the presence of the jury on the question of consent to search" but it was before "the conclusion of the testimony offered by the State on this question." It was during the cross-examination of State's witness Investigator Tabb, as shown by the transcript as follows:
"MR. COLQUETT: I would like to put the defendant on the stand for just a moment.
"THE COURT: I'm not going to go that far on this."
We can well understand that counsel could have thought that the State had concluded its testimony on the point out of the presence of the jury at the time he made his request to be allowed "to put the defendant on the stand for just a moment," but the transcript does not support any such conclusion, and the trial court should not be placed in error for its not being willing for the defendant to be placed on the stand as a witness out of the presence of the jury during the time that the State's witness was testifying out of the presence of the jury. It is to be noted...
