Blakely v. State
| Decision Date | 28 March 1967 |
| Docket Number | 1 Div. 161 |
| Citation | 43 Ala.App. 654,198 So.2d 803 |
| Parties | Homer John BLAKELY v. STATE. |
| Court | Alabama Court of Appeals |
Matranga, Hess & Sullivan, Mobile, for appellant.
Richmond M. Flowers, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.
This appeal was argued November 15, 1966, and submitted on a motion of the Attorney General and on the merits.
Blakely appeals from conviction on an indictment which charges:
'* * * Homer John Blakely did in the nighttime, with intent to steal, break into and enter a building owned by Baldwin County Alabama, in which valuable things, to-wit: money was kept for use or deposit, against the peace and dignity of the State of Alabama.'
See Code 1940, T. 14, § 86, defining second degree burglary.
Blakely, after verdict and allocutus, was sentenced by the court to ten years imprisonment.
Rule 12 of the Revised Rules of the Supreme Court (279 Ala. xxvii), which this court follows, gives appellant thirty days after filing his record within which to file his brief.
Counsel wishing to argue his case orally must endorse 'on the last page of his brief' his desire therefor. Rules 4 and 16. If neither party so endorses the last page of the brief in civil cases, the case is submitted on briefs. Rule 12.
In criminal appeals, Code 1940, T. 15, § 389, is the paramount law for review of appeals. Hence, no brief is mandatory. However, oral argument, while of right, is subject to rule.
Under Rule 16, if briefs are late or not filed at all, the case is submitted as in civil appeals.
August 5 appellant gave notice of a brief to be forthcoming. The appellant's brief was filed September 7. On July 12, the Attorney General had given notice of a brief to come, and filed it on September 21, 1966.
Code 1940, T. 13, § 23, provides:
As to terms of this court, T. 13, § 101, states:
This section thus adopts T. 13, §§ 20 and 26, which read:
The record in this case was filed in the office of our clerk July 7, 1966, a week after the end of the regular October, 1965--66 Term on June 30, 1966. This court not being in adjourned or special term could not take the appeal under submission until August 15, the first day of the Summer Special Term. T. 13, §§ 101 and 20, supra.
Except for the request for oral argument, the case would have been submitted on expiration of time for appellant's reply brief, i.e., ten days after service on him of the Attorney General's brief. Rule 12, fourth sentence. This would give as the date of submission Monday, October 3, which coincidentally was the first day of the new regular 1966--67 Term.
Ignoring the beginning and ending of terms, here the appellant's brief was due August 6. But on August 5 this deadline was extended on motion of appellant to August 20. Rule 12, seventh sentence.
Measured from August 20, the Attorney General's brief was due September 9. This was extended, making September 24 the last day on which the State could have filed. Hence, filing September 21 was timely.
The appellant, having waited until September 7, did not comply with Rule 4, first sentence, in asking for oral argument. The Attorney General's motion to dismiss the request for oral argument is due to be granted.
This motion, by the relief prayed for, comes within the scope of § 23, quoted supra, save that it fails to 'specify the date upon which the case is to be submitted.'
The failure to file a brief on time in a criminal appeal gives rise to: (1) this court's authority to treat the failure as a waiver of the privilege of oral argument; or (2) the opposite party's statutory right to move for submission without oral argument on ten days' notice under § 23 of T. 13. See Golden v. Golden, 274 Ala. 235, 147 So.2d 825 (hn. 1). We distinguish this from Rule 17 as construed in Sayre v. Dickerson, 275 Ala. 371, 155 So.2d 327.
Though we heard oral argument, it was expressly stated in court that it was without prejudice to a favorable consideration of the State's motion to dismiss the request for oral argument.
In Smith v. Texas Co., 111 Fla. 762, 149 So. 585, we find:
* * *'
The State's motion is granted, though T. 15, § 389, removes any penalizing sanction other than advancement of submission under § 23 of T. 13.
On the morning of January 7, 1966, the Chief Clerk in the office of the Judge of Probate of Baldwin County, Mr. James R. Allen, came to work at the early hour of 4:00 A.M.
As he entered that portion of the courthouse set apart for the office of the Probate Judge, he saw two men 'working' on the safe. One of the two broke out of a window. Allen's testimony does not describe how the other escaped.
Allen went out the front door of the courthouse and struggled with one of the suspects. Later he saw the defendant who had been captured by some officers on the courthouse lawn trying to get away in an automobile. The defendant had some dust on his clothing. Allen recognized his voice as being that of the man he had wrestled with in the shrubbery.
The Assistant State Toxicologist analyzed the scrapings in and about the safe and the ones found on defendant's clothing, and testified that both were identical insulation material.
There was other circumstantial evidence, including the identification of a pair of eyeglasses found on the person of the defendant as being those which belonged to Allen left by him in the office the day before.
The corpus delicti of second degree burglary was established and there was sufficient evidence from which the jury could infer that Blakely was one of the two men who had broken and entered the building.
The defendant did not take the stand.
The defendant did call one Jack Leveau who admitted that he was one of the burglars, but denied that Blakely was his accomplice.
On cross-examination, Leveau admitted telling Mr. Garner, a deputy sheriff, on the morning after the burglary that Blakely was his accomplice.
The defendant himself at times cross examined some of the State's witnesses, the trial court allowing a great deal more leniency than usual where a defendant is represented by counsel.
In the course of this do-it-yourself cross-examination, the defendant tried to make Mr. Garner admit that the defendant had been beaten in jail. One of his questions to Mr. Garner was, 'Isn't it true that I was passing blood and the Doctor has blood now?' The court thereupon said, 'If you want to testify, why don't you get on the stand?' Later the court, in the course of charging the jury, was emphatic about the right of the defendant not to testify, charging:
'The defendant in this case has not seen fit to take the stand in his behalf and the Court charges you that he is not required to take the stand and it is not to be used as...
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Smith v. State, 6 Div. 816
...by the accused, to instruct the jury that no inferences should be drawn from the accused's failure to testify." By Blakely v. State, 43 Ala.App. 654, 198 So.2d 803 (1967), this Court is committed to the proposition that a trial court's inclusion in its oral charge of a reference to failure ......
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Prince v. State, 8 Div. 706
...395 So.2d 1080 (Ala.1981); Smith v. State, 370 So.2d 312 (Ala.Cr.App.), cert. denied, 370 So.2d 319 (Ala.1979); Blakely v. State, 43 Ala.App. 654, 198 So.2d 803 (1967). The correctness of the court's oral charge must be measured by the charge as a whole and not by an isolated remark. The ch......
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State v. Cook
...66 Am.St.Rep. 512; United States v. Heithaus, 3 Cir., 377 F.2d 484; State v. Boscia, 93 N.J.Super. 586, 226 A.2d 643; Blakely v. State, 43 Ala.App. 654, 198 So.2d 803. No authority is cited by the defendant for his position with reference to this instruction and we can find none. The instru......
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