Opinion
No. CR-04-1137.
November 23, 2005. Rehearing Denied January 27, 2006.
Appeal from the Randolph Circuit Court (CC-2002-072.60); Tom F. Young, Jr., Judge.
Christopher Seymour, pro se.
Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
McMILLAN, P.J., and WISE, J., concur. BASCHAB and SHAW JJ, concur in the result. COBB, J., dissents, with opinion.
For the reasons I joined Judge Shaw's special writing in Sullens v. State, 878 So.2d 1216 (Ala.Crim.App. 2003)(Shaw, J., concurring in part and dissenting in part), I cannot agree with the conclusion in the unpublished memorandum that the indictment in this case, which failed to allege a culpable mental state, was sufficient to charge the offense of shooting into an occupied dwelling, a violation of § 13A-11-61, Ala. Code 1975. Moreover, unlike Harrison v. State, 879 So.2d 594 (Ala.Crim.App. 2003)(Shaw, J., concurring in result) in which I joined Judge Shaw's special writing, the indictment in the instant case was not amended by a jury charge supplying the requisite intent. Thus, I must respectfully dissent.
We have taken judicial notice of the record from the appellant's direct appeal in this case. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App. 1998)