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AFTER REMANDMENT BY THE SUPREME COURT OF ALABAMA

ALMON, Judge.

Dotson was arrested on the afternoon of October 18, 1969. At that time he appeared, to be intoxicated and for this reason was. not questioned until the following day about noon. He began answering questions after Detective Chambers had given him the Miranda warnings. During the questioning the following occurred:

“Q. You say tha gun went off. How did this happen?

“A. I would like to wait to answer this until I talk to my lawyer.”

*382After Dotson indicated that he did not want to answer questions regarding how the gun went.off, Detective Chambers did not further question him on that subject. 'Thus, there is no indication from the rec■ord that there was any coercive action on the part of the police.

Implicit in his answer is the fact that he understood he had a right to refuse to answer questions until he talked to a lawyer if he so chose. ’ That he had the presence of mind to. selectively refuse to answer certain questions until he had talked to a lawyer strongly supports the ■conclusion that Dotson understood the warnings and voluntarily relinquished his rights to the questions which he chose to answer. By refusing to answer the above question he was in fact exercising the very right in question on this appeal.

Furthermore, at no time during trial did Tie contend that his statements were involuntary or that he failed to waive his right to counsel. This identical question was before the Court in United States v. Hayes, 385 F.2d 375 (4 Cir., 1967); cert. denied 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106, where the following observation was made:

“. . . Moreover, it is noteworthy that at no stage in the proceedings has the appellant ever denied that he understood the warnings given him, and while a defendant does not have the obligation to testify himself or to offer testimony, a court cannot supply evidence that is lacking . . . . ”

Thus, there is no evidence whatsoever in the record to indicate that Dotson failed to understand and to waive his right to counsel. On the contrary, the manner in which he answered questions indicates that he did waive his right to counsel and his privilege against self-incrimination.

After further consideration we consider the judgment of conviction should be affirmed. For a more complete statement of the facts see Judge Cates’ dissenting opinion.

Affirmed.

PRICE, P. J.,' and TYSON, J., concur.

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