Doby v. State
Decision Date | 23 March 1917 |
Docket Number | 6 Div. 126 |
Parties | DOBY v. STATE. |
Court | Alabama Court of Appeals |
Appeal from Criminal Court, Jefferson County; A.H. Alston, Judge.
Will Doby was convicted of highway robbery, and he appeals. Reversed and remanded.
The facts sufficiently appear. The following portions of the oral charge noted in the opinion are as follows:
R Beddow and L. Berkowitz, both of Birmingham, for appellant.
W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.
The evidence offered by the state shows that the witness Taylor while driving along the public road on the way home in a wagon, was accosted by two negroes, who requested witness to allow them to ride in his wagon. After they had gotten in the wagon and the witness had driven for some distance, one of the negroes got off of the wagon and drew a pistol, commanding witness to hold up his hands, and the other negro searched Taylor and took from his person about $64 in money; and the evidence tends to show that the defendant and Jessie Breedlove were the guilty parties.
The request made by these negroes, whether by the defendant or Breedlove, was so intimately connected with the robbery as to make it a part of the res gestae, and it was permissible for the witness to state that, "They asked me to let them ride." Lundsford v. State, 2 Ala.App. 38, 56 So. 89.
Before admitting the testimony of the witness Taylor relative to what occurred at the city hall when he was called to identify the defendant and Breedlove while they were in custody, the record shows that the jury was excused and the court, in the absence of the jury, "made investigation as to the admissibility of this testimony"; but it is not shown what evidence as a predicate for the admissibility of the testimony was offered. The record does not affirmatively show that a proper predicate for the admission of the testimony was not laid, and this court will assume that the predicate was sufficient. Whatley v. State, 144 Ala. 75, 39 So. 1014; Price v. State, 117 Ala. 113, 23 So. 691; Fortner v. State, 12 Ala.App. 179, 67 So. 720.
Whatever may be the rule elsewhere (see 1 R.C.L. p. 478, § 15), with us "silence in the face of pertinent accusation of crime partakes of the nature of a confession, and is admissible as a circumstance to be considered by the jury as tending to show guilt," even though the person charged is in custody on the charge. Spencer v. State, 20 Ala. 24; Raymond v. State, 154 Ala. 1, 45 So. 895. The rule is stated in Rowlan v. State, 14 Ala.App. 17, 70 So. 953.
It appears from the record that the defendant...
To continue reading
Request your trial-
Valentine v. State
...To the remarks of the court to the jury the defendant reserved no exception, and no question is presented for review here. Doby v. State, 15 Ala. App. 591, 74 So. 724; Woodson v. State, 170 Ala. 87, 54 So. Objection was interposed by the state, and sustained, to certain questions propounded......
-
Rowe v. State
... ... 55, 58, 75 So. 261, 264, ... Judge Brown states the rule that obtains as follows: ... "And if the evidence is in dispute, or affords ... conflicting inferences, it is reversible error for the court ... to charge on the effect of the evidence in the oral charge ... Will Doby v. State [15 Ala.App. 591], 74 ... So. 724; Louisville & N.R. Co. v. Godwin, 191 Ala. 498, ... 67 So. 675; Mayer v. Thompson-Hutchinson Co., 116 Ala. 634, ... 22 So. 859." ... To the ... same effect are Prince v. State, 100 Ala. 144, 14 ... So. 409, 46 Am.St.Rep. 28; Manning v ... ...
-
State v. Won
...134 Cal. 531, 66 P. 794.” And see Diamond v. State, supra; State v. Claymonst, 96 N. J. Law, 1, 114 A. 155;Doby v. State, 14 Ala. App. 591, 74 So. 724;Simmons v. State, 7 Ala. App. 107, 61 So. 466;Hardy v. State, 150 Wis. 176, 136 N. W. 638. The foregoing doctrine was recognized in State v.......
-
Cole v. State
... ... required to do so by one of the parties." ... And if ... the evidence is in dispute, or affords conflicting ... inferences, it is reversible error for the court to charge on ... the effect of the evidence in the oral charge. Will Doby ... v. State, 74 So. 724; L. & N.R.R. Co. v ... Godwin, 191 Ala. 498, 67 So. 675; Mayer v ... Thompson-Hutchison Co., 116 Ala. 634, 22 So. 859 ... The ... court, in the oral charge, instructed the jury: ... (1) "I charge you, then, that if you believe from the ... evidence, ... ...