Curtis v. State

• Decision Date: 29 August 1967
• Docket Number: 8 Div. 94
• Citation: 202 So.2d 170,44 Ala.App. 63
• Parties: Billy Jack CURTIS v. STATE.
• Court: Alabama Court of Appeals

Page 170

202 So.2d 170

44 Ala.App. 63

Billy Jack CURTIS v. STATE.

8 Div. 94.

Court of Appeals of Alabama.

Aug. 29, 1967.

J. N. Powell, Jr., Decatur, for appellant.

MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal was submitted on written argument February 23, 1967. Curtis appeals from a judgment of conviction of grand harceny of a Cadillac. The court sentenced him to ten years in the penitentiary.

This is a companion case to Kilpatrick v. State, 43 Ala.App. 667, 199 So.2d 682, 683. The outline of the testimony there gives a sketch of the tendencies of the evidence in the case of instant concern. However, we refer to the significant differences where claims of error arose from Curtis's trial.

The State called Mr. Joe Denny, a used car dealer in Huntsville. He testified that 'around about the first of June' 1964 he had conversations with Curtis regarding Curtis's sale to him 'of various new Cadillacs.'

A then anonymous man had telephoned Denny (R. 86) that he could sell Denny as many new Cadillacs as he could handle 'at a substantial savings.' Denny made an appointment to meet the telephone caller. There he encountered Curtis.

The two repaired to a nearby cafe. Denny related Curtis's opening remarks as follows:

'That he had some that he would like to sell at a price where it would be so low that a person could make considerable on them and specifically the two door hardtops and Cadillacs could be quoted at $1,500.00.'

Denny testified that a hardtop Cadillac would have then ordinarily sold for more than $5,000.00.

On the day of Curtis's being arrested with Kilpatrick at the motel parking lot, Denny was at Gibson's Bar-B-Q, catercornered from the King's Inn. His evidence was (in part):

'Q What arrangements had you made with this defendant about delivering that car? What had he said about delivering it in that conversation where he agreed to deliver it to the King's Inn Motel.

'A Do you mean how much money I was to pay for it?

'Q How was it to be delivered and how were you to pay for it?

'A The car was to be at King's Inn Motor Hotel parking lot and he was to come across to the Gibson's Bar-B-Q place when he got the car there and I was to meet him at a certain hour and then would pay him $1,250 for the car.

'Q Pay him $1,250 for the car. How were you to know what car it was at King's Inn?

'A He was to identify the car, plus the fact that he gave me a tag number that had come off of a car at a salvage yard.

'Q He gave you the tag number first?

'A Right.'

After Curtis was arrested, Denny related that Curtis had made threats against him. One time Curtis told him he was going to shoot his guts out. Another time he alluded to Denny's having 'notified the fuzz * * * and at night at your home or your place of business (Curtis or his) friends would take care of' Denny.

It is clear that Denny's reference to 'the fuzz' meant law officers. Cf. 'fustigate' from L. fustis, a stick.

The defense put on no evidence.

As to Curtis's purported threats as given in Denny's testimony, appellant's brief argues:

'* * * the trial court erred in overruling defendant's motion for a mistrial following a statement of the Solicitor that 'we want to show tampering by this defendant with this witness and threats.' (Trans. p. 93) Appellant contends that this remark is of such prejudicial nature as to require a reversal in this case in order to further the ends of justice and enable the Appellant to have a fair trial based only on the evidence which the State might be able to present against him. Such statement as enumerated above no doubt gave the jurors a bad opinion of the Appellant aside from any legitimate evidence which might have been adduced against him. Certainly the statement of the Solicitor could have had no effect other than presenting an adverse picture of the Appellant, and the motion made by Appellant at the time of the statement should have been granted. The statement had no bearing upon the elements of the offense with which the Appellant was charged. The Appellant was entitled to a fair trial on the merits of the case, uninfluenced by appeals to passion or prejudice, and the Solicitor should have confined his statements to the evidence in the case and to inferences properly to be drawn therefrom and should have avoided appealing to the prejudice of the jury. Appellant takes the position that at no time...