Cabaniss v. City of Tuscaloosa

• Decision Date: 15 June 1926
• Docket Number: 6 Div. 912
• Parties: CABANISS v. CITY OF TUSCALOOSA.
• Court: Alabama Court of Appeals

109 So. 761

21 Ala.App. 507

CABANISS v. CITY OF TUSCALOOSA.

6 Div. 912

Court of Appeals of Alabama

June 15, 1926

Rehearing Denied Aug. 31, 1926

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Oscar Cabaniss was convicted of violating a prohibition ordinance and he appeals. Affirmed.

Certiorari denied by Supreme Court in Cabaniss v. State, 109 So. 762.

Reuben H. Wright, of Tuscaloosa, for appellant.

S.H. Sprott, of Tuscaloosa, for appellee.

BRICKEN P.J.

There is no merit in the insistence that the alleged confessions of the defendant were improperly admitted, or in the contention that the court committed reversible error in admitting in evidence the alleged inculpatory statements made in the presence of the accused, and to which he vouchsafed no reply. As to the alleged confessions, the predicate for their introduction met every requirement of the rule and were sufficient. And, so far as the inculpatory statements made in the presence and hearing of defendant are concerned, there was no infraction of the rule applicable to evidence of this nature. The well-settled rule in relation to evidence of this kind is that the statement must be of a character which naturally calls for a reply, and the party to be affected by it must be in a situation in which he would probably respond to it. Smith v. State, 16 Ala.App. 546, 79 So. 802; Green v. State (Ala.App.) 106 So. 683, 685.

In this case, as in all cases where the question of fact is involved the jury were called upon to pass upon the guilt or innocence of the accused, and the question of the severity of the punishment and the extent thereof, as fixed by law, is not to be considered by the jury in weighing the evidence and in deciding upon the all important fact of the guilt or innocence of the defendant. The court therefore properly sustained the objections to the argument of appellant's counsel wherein he attempted to argue to the jury that under the ordinance the court could impose hard labor upon the defendant. In Treadaway v. State, 18 Ala.App. 409 92 So. 529, this court said:

"Counsel for defendant should not make use of the discretion of the court as fixed by law, as to punishment to be inflicted on conviction for crime, as an argument to the jury to justify any action they might consider just. The jury has its duty and the court likewise, the one not dependent upon the other."

The police jurisdiction of the ...