Denson v. State, 7 Div. 181

• Decision Date: 12 June 1973
• Docket Number: 7 Div. 181
• Citation: 279 So.2d 580,50 Ala.App. 409
• Parties: Charles DENSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 580

279 So.2d 580

50 Ala.App. 409

Charles DENSON v. STATE.

7 Div. 181.

Court of Criminal Appeals of Alabama.

June 12, 1973.

Wade H. Morton, Jr., Columbiana, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant was indicted for and convicted of burglary in the second degree for which the trial court sentenced him to six years imprisonment in the penitentiary of Alabama.

It appears without dispute that the building in Montevallo, Alabama, housing the Ford dealership of Sherman Holland Ford Inc., a corporation, was burglarized about 6:00 P.M. on February 14, 1970, wherein and at the time two colored males were flushed while they were using tools to pry open the company's safe which contained money and papers of the corporation.

The evidence without contradiction shows that the majority owner of the corporate stock, Sherman Holland, together with his son, and Earl Tucker, a business associate had been to Montgomery to deliver an automobile, and on returning to Montevallo about 6:00 P.M., stopped to see if they had locked the safe which was in the building.

As Mr. Holland was placing a key in the front door lock for the purpose of entering the building, and Mr. Turner was standing by for like entry, two male colored persons made a hurried exit to the rear of the building, wherein they had forcibly entered, thereby escaping. One Henry Minnifield and appellant were later arrested for the burglary. Minnifield was convicted for such burglary. We are not here concerned with that conviction.

We may hereafter refer to appellant on occasions as defendant.

The defendant entered a plea of not guilty to the indictment. This plea presented an issue of identity that was submitted to the jury, who heard considerable evidence and determined therefrom that defendant was guilty as charged in the indictment.

It appears from the evidence that after defendant's arrest in Birmingham on February 23, 1970, pursuant to a warrant of arrest issued on February 17, 1970, and after he was jailed in Columbiana, Mr. Holland viewed defendant in a lineup which was set up by the Sheriff of Shelby County. The effect of this view of defendant in the lineup will be the subject of consideration later in this opinion.

The first contention appellant's counsel makes in his argument and brief is that the trial court erred in denying appellant's motion to require the court reporter to take down and stenographically record the arguments of counsel to the jury. It appears that defendant was an indigent and represented at his trial and here by appointed counsel. Point is made that this indigent defendant did not receive the same type trial as a non-indigent defendant would receive and is not being afforded the same opportunity for a full review as is afforded a non-indigent defendant.

We are not in accord with this contention. Tit. 13, § 262, Recompiled Code of Alabama 1958, specifies the duties of a court reporter and specifically exceptsreporting argument of counsel. Additional specific duties of a court reporter are named for the reporter of the Sixth Judicial Circuit by General Act 1927, p. 34. It appears that the instant reporter in Shelby County was under no duty, with or without pay, to report the argument of counsel. The trial court had no authority to mandate such service. The court properly denied the motion.

We do not mean to say that the reporter was not required to note objections of counsel and their reference to arguments; also the ruling of the court on such objections.

Defendant as an indigent was not in any worse position than a non-indigent who likewise is not entitled to such service as a matter of duty on the part of the reporter. The fact that the reporter may volunteer such service for pay does not require him to volunteer such service without pay. Such performance of service is addressed to the discretion of the court reporter without any order or direction of the trial court.

The next contention is that the trial court erred in refusing to give written charges 4, 6 and 8 which were requested by defendant. The reporter will set out these refused charges. We think they were covered by defendant's written charges 5 and 7, which the reporter will also set out. The two charges 5 and 7 were not endorsed 'given' and signed by the trial judge as required by Tit. 7, § 273, Code, supra. Appellant says in his brief that the charges were given. This being true, it was not error to refuse charges 4, 6 and 8. Tit. 7, § 273, supra.

Appellant asserts that the court's oral charge concerning the presumption of innocence and its effect on the State's burden of proof does not fully and adequately instruct the jury on these matters; that the court committed error in refusing, separately and severally, appellant's written charges 10, 11, 12, 16, 17, 18 and 23.

The trial court in its oral charge instructed the jury on presumption of innocence as follows:

'Now, Ladies and Gentlemen of the Jury, the fact that this defendant has been arrested and brought before the bar of justice, here, does not create any presumption against him, at all, but, he comes into this court clothed withe (sic) the presumption of innocence and that presumption of innocence is a fact that remains with (sic) throughout the trial of this case and until it overcome by evidence, which proves his guilt to each one beyond a reasonable doubt and to a moral certainty. . . .'

Written charge 17 is as follows:

'The Court charges the Jury, that the legal presumption of innocence is to be regarded by the Jury in this case as a matter of evidence, to the benefit of which the defendant is entitled, and, as a matter of evidence it attends the defendant until his guilt is, by the evidence, placed beyond a reasonable doubt.'

This refused charge 17 was not covered by any written charge given at defendant's request. The generality of the oral charge, supra, was not sufficient to cover the principle, 'as a matter of evidence,' in refused charge 17, supra. Davis v. State, 284 Ala. 135, 222 So.2d 719; Guenther v. State, 282 Ala. 620, 213 So.2d 679; Gordon v. State, 40 Ala.App. 214, 110 So.2d 329, cert. granted 268 Ala. 517, 110 So.2d 334.

Refusal of the other charges, supra, was not error. Tit. 7, § 273, Code, supra.

We think there was no error on the part of the trial court, as contended by appellant, in declining to permit appellant to impeach the credibility of Sherman Holland by showing on cross examination that he had a problem of prior and subsequent burglaries at his place of business. Appellant contends that these repeated burglaries tended to reflect upon the witnesses' interest, bias, prejudice and partiality concerning the matters above which he had testified. Cross examination with respect to prior and subsequent burglaries would lead the trial far afield and burden the jury with remote issues that shed no light on the issues in the instant case.

The witness, Sherman Holland, testified on cross examination that he got the best look at defendant when he and his companion were flushed in the office and were in the act of fleeing therefrom. Defendant asked the witness:

'Q. That's right, you never have stated on that witness stand that you got the best look at the one that was running out the door?

'A. No, sir.'

Thereafter, the defendant offered evidence of the court reporter that at the trial of the companion, Henry Minnifield, witness Sherman Holland testified on December 15, 1971, that he got the best look at Henry Minnifield. The trial court sustained the State's objection to this offer of proof.

We think the evidence of the court reporter was offered to contradict the witness on an immaterial issue, created by the defendant on cross examination. The...