Clark v. State

• Decision Date: 26 January 1928
• Docket Number: 6 Div. 77
• Citation: 217 Ala. 229,115 So. 295
• Parties: CLARK v. STATE.
• Court: Alabama Supreme Court

115 So. 295

217 Ala. 229

CLARK v. STATE.

6 Div. 77

Supreme Court of Alabama

January 26, 1928

Certiorari to Court of Appeals.

Vester Clark was convicted of an offense and appealed to the Court of Appeals. The judgment of conviction being there reversed the State, on the relation of its Attorney General, now brings this petition for certiorari to review and revise the judgment and decision of the Court of Appeals in Clark v State, 115 So. 294. Writ awarded.

Charlie C. McCall, Atty. Gen., and W.M. Rayburn, Asst. Atty. Gen for the State.

R.G. Redden, of Vernon, opposed,

SAYRE J.

In order to establish his alibi, defendant, Clark, offered in evidence a receipt purporting to have been issued to him by an express company at Little Rock, Ark., at a time so near the time of the offense charged in the indictment as, if genuine and true in all its recitals, to refute the charge as to defendant's presence at the time and place when and where the offense had been committed as witnesses for the state testified. For the further history of the question now at issue, we quote from the opinion of the Court of Appeals as follows:

"The objection by the state was upon the grounds that the receipt was immaterial, incompetent, and irrelevant. These grounds waived all others, and in effect admitted the genuineness of the receipt. The genuineness of the receipt being admitted, the court committed reversible error in refusing to admit it in evidence."

We understand the Court of Appeals to hold that the receipt should have been accepted as genuine in the trial court, for the reason, and for the reason only, that the state did not object on the ground that the execution of the receipt had not been proved; in other words, that the general objection waived the specific objection that execution was not shown, and, in consequence, that the court committed error in excluding the receipt.

In Adams v. Southern R. Co., 166 Ala. 449, 459, 51 So. 987, 991, this court, speaking to an assignment of error raising substantially the same question as in this case, said:

"The trial court was not bound to cast about for the grounds of objection; but, if it did so and found tenable objection, appellant cannot complain."

That ruling was in agreement with the rule stated by Prof. Wigmore, who, dealing with the "procedure of admissibility," says:

"The initiative in excluding improper evidence is left entirely to the opponent, so far at least as concerns his right to appeal on that ground to another tribunal. The judge may of his own motion," as we think it must be assumed the trial court did in this case, "deal with offered evidence; but for all subsequent purposes it must appear that the opponent invoked some rule of evidence. A rule of evidence not

...