Adams v. State

• Citation: 31 So.2d 99,33 Ala.App. 136
• Decision Date: 22 April 1947
• Docket Number: 4 Div. 1.
• Parties: ADAMS v. STATE.
• Court: Alabama Court of Appeals

31 So.2d 99

33 Ala.App. 136

ADAMS v. STATE.

4 Div. 1.

Alabama Court of Appeals

April 22, 1947

Rehearing Denied May 20, 1947.

Frank A. Mizell, Jr., of Montgomery, and Ralph A. Clark, of Andalusia, for appellant.

A. A. Carmichael, Atty. Gen., and John O Harris, Asst. Atty. Gen., for the State.

CARR Judge.

Appellant was tried and convicted in the court below on an indictment charging the offense of assault with intent to murder.

In a well prepared brief, counsel for appellant states and argues eleven propositions upon the basis of which error is urged. We have not overlooked our duty under the provisions of Title 15, Sec. 389, Code 1940, but after a careful examination and study of the record we entertain the view that when we have discussed each of the propositions indicated we will have given attention to all matters of meritorious significance.

As we foresee our task this will necessitate a rather extended opinion. For convenience and illustrative value in the preparation of this opinion, we will state and consider each of the propositions in the order in which they appear in counsel's brief.

'Proposition I

'Where the verdict of a jury is contrary to the weight and preponderance of evidence, such verdict should be set aside and the trial court therefore erred in failing to grant appellant's motion for a new trial.'

Without conflict in the evidence, the accused shot the injured party twice with a pistol, inflicting severe and serious wounds. It is also without dispute that the appellant hit the assaulted person on the head with the pistol. The defendant testified that the first gunfire was accidental and occurred while a scuffle was in progress. It follows therefore, that the prime factual question centers around the inquiry of whether or not the defendant was acting in self defense, as he claimed. It appears from the record that the two participants in the affray, in company with two women, were out riding. The evening was spent in going from place to place along the highway. Much whiskey was consumed and, to state it frankly, the journey was taken up with conduct very unbecoming and disgraceful. In any event, the carousal was terminated by a fight between the two male journeymen. The automobile was parked at the time, but when the difficulty began the two women left the car and were some distance away when the shots were fired.

The court and jury had only the testimony of the two men to determine what did in fact occur at the time of the shooting. As to these events the evidence is in irreconcilable conflict. If the version of the injured party is to be accepted as true, there was no legal justifiation for the assault upon him. Appellant's counsel, in oral argument and in brief, cogently insists that the disclosed physical findings make the account given by the State's witness unbelievable and unreasonable. We do not so conclude. Many positions of the parties are possible when a scuffle or fight is in progress in and about an automobile. The bullet mark on the car and the course of the wounds on the body of the injured person do not, of themselves, destroy the verity or accuracy of the State's evidence.

We cannot bring ourselves to the view that we should disturb the judgment of the trial court in his action in overruling the motion for a new trial on the insisted ground that the verdict is not sustained by the great preponderance of the evidence. Smith v. State, 23 Ala.App. 488, 128 So. 358; Locklear v. State, 17 Ala.App. 597, 87 So. 708.

'Proposition II

'Justice requires that a reasonable and adequate time be afforded all persons accused of crime for the preparation of their defense.'

The offense occurred on the night of August 5th, 1946. The accused was forthwith placed in jail. An indictment, charging him with the crime, was returned on September 23rd, 1946. Appearance bond was fixed at $1500.00. While the record does not indicate, we are privileged to assume that a reasonable bond was also named at the time of the original arrest. Appellant was released from jail on October 25th, 1946, and was put to trial on October 28th following.

Counsel urges with earnest insistence that the trial judge abused his discretion in putting the defendant to trial under the circumstances indicated, it being mainly contended that because of his confinement in prison the appellant was injuriously hindered in the preparation of his defense. It is not intimated that the accused was in any way deprived of reasonable access to counsel. In fact, the record shows that he was visited by his wife and friends during the period of his imprisonment. It would be a novel and extreme position to hold that, just because an accused cannot or does not make bond after arrest and before trial, a continuance must be granted solely for the handicap this occasions. Such a rule could prevent some charged offenders and indictees from ever being brought to trial.

The application for a continuance was also based on the claim that appellant had witnesses outside of the State and he had not had time and opportunity to assure their attendance at court. Four witnesses testified to the circumstances of the assault. These constituted all who were present. The defendant introduced three of these, including himself.

It is not made to appear by the record how any of these out-of-State witnesses could have aided in the defense, nor was the trial judge apprised of the nature or materiality of their anticipated testimony. In addition they were beyond the jurisdiction of the court and their attendance could not have been forced.

Clearly, the court below did not abuse his enlightened discretion in denying the application for a continuance. Gast v. State, 232 Ala. 307, 167 So. 554; Morris v. State, 193 Ala. 1, 68 So. 1003; Curtis v. State, 9 Ala.App. 36, 63 So. 745; Bedsole v. State, 28 Ala.App. 27, 177 So. 308; Malone v. State, 10 Ala.App. 178, 64 So. 632; Denton v. State, 17 Ala.App. 309, 85 So. 41; Gaines v. State, 146 Ala. 16, 41 So. 865; Ward v. State, 31 Ala.App. 415, 18 So.2d 103.

'Proposition III

'The trial court erred upon hearing of the motion for a new trial in striking testimony duly stipulated and agreed between the parties.'

It appears that the solicitor agreed that, if one of the attorneys for the appellant

were present at the hearing on the motion for a new trial, he would testify to certain facts. This agreement and proposed statement were reduced to writing. At the hearing the solicitor objected to the introduction of the written stipulation, and the trial court sustained the objections. It should be noted that the agreement did not attempt in any way to bind the court in his judgment as to its materiality. Its introduction was, of course, subject to his views of its competency if objections should be interposed to its allowance in evidence. Be this as it may, the statement contains no additional evidential value. It recites facts with reference to the appellant's confinement in jail and the attorney's inability to procure the attendance of certain unnamed out-of-State witnesses. The rights of the appellant were in no manner impaired by this action of the court.

'Proposition IV

'The state cannot under the guise of attacking the credibility of a defendant in truth and fact put the defendant's character in issue in the absence of the defendant having done so.'

The appellant did not introduce any witnesses as to his general good character. After he had testified, the State presented a large number of persons who testified that the character of the accused was bad. No effort was made to inquire concerning his character for truth and veracity, or whether or not any of the declarants would believe him on oath. However, the court did instruct the jury very specifically and accurately that this evidence could be considered only in determining the credibility of the defendant as a witness.

It is the settled rule in this jurisdiction that, when a defendant in a criminal case has testified in his own behalf, his credibility as a witness is subject to impeachment and the State is privileged to introduce evidence of the general character of the accused without restricting the inquiry to his reputation for truth and veracity. Gast v. State, supra; Mealer v. State, 242 Ala. 682, 8 So.2d 178; Rogers v. State, 16 Ala.App. 58, 75 So. 264; Walling v. State, 15 Ala.App. 275, 73 So. 216.

'Proposition V

'The use of an excessive number of witnesses to prove defendant's bad character when the same has not been put in issue by him, is a prejudicial abuse of discretion and its harmful effect cannot be eliminated or avoided by the pretext of limiting it to an impeachment of defendant's cerdibility.'

We must confess that this is a rather novel position. The defendant certainly did not admit that his testimony was untrue or incredible. The State observed the rule in the introduction of the evidence. Whether or not this legal proof should be established 'at the mouth' of a few or many witnesses addressed itself to the judgment of the solicitor.

This court held in Leverett v. State, 18 Ala.App. 578, 93 So. 347, that, under the factual issues in that case, it was error to reverse for the trial court to limit the character witnesses for the defendant. In the case at bar the testimony of the accused was in the main pitted against the testimony of the injured party. Whether or not due credence should be given the evidence of the appellant became a matter of very material inquiry. We find no error here.

'Proposition VI

'The unrestricted use of ex parte testimony given before a Grand Jury, or officers of the court, under the guise of testing the recollection or credibility of the witness violates defendant's right to a fair and...