Durham v. State
| Decision Date | 06 May 1971 |
| Docket Number | 1 Div. 616 |
| Citation | 287 Ala. 731,250 So.2d 696 |
| Parties | David G. Durham v. The STATE of Alabama. Ex parte David G. Durham. |
| Court | Alabama Supreme Court |
Certiorari to Court of Criminal Appeals.
David G. Durham was convicted of the offense of having carnal knowledge of a girl over twelve and under sixteen years of age by the Circuit Court of Mobile County, Bolling, J., and he appealed to the Court of Criminal Appeals which affirmed the conviction, 250 So.2d 693. He then filed a petition in the Supreme Court for a Writ of Certiorari to the Court of Criminal Appeals. This petition was denied, 250 So.2d 695, and the appellant filed an application for rehearing which was granted and the Writ of Certiorari issued.
Rehearing vacated; Certiorari vacated; Affirmed.
William C. Taylor, Mobile, for petitioner.
William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for the State.
We ordered the issuance of a Writ of Certiorari to the Court of Criminal Appeals after granting Durham's Application for Rehearing.
After further deliberation, we have concluded that the Application for Rehearing should not have been granted and that we should not have ordered the issuance of the Writ of Certiorari. Those orders are vacated.
The judgment of the Court of Criminal Appeals stands affirmed.
All of the Justices concur except HEFLIN, C.J., who dissents.
On February 5, 1970, this Court denied the issuance of the Writ with two members of the Court dissenting. On March 1, 1971, Application for Rehearing was granted and the Writ issued.
Several unusual questions were presented in the Petition for Writ of Certiorari to which careful consideration was given. However, the major substantive question which the Court felt deserved particular study was in connection with the admissibility in the trial court of evidence of alleged unlawful sexual activity with a third person where such evidence merely tended to show the disposition, inclination, propensity or depravity of the accused.
During the trial the prosecutrix's younger sister, Rita Nelson, testified that, on occasions occurring before the alleged offense with Evelyn Nelson, her stepfather (petitioner-defendant) had attempted to have sexual intercourse with her but could not accomplish his purpose because she was too small. The petitioner-appellant-defendant assigned as error the admission of such testimony over objection in his appeal to the Alabama Court of Criminal Appeals. Said criminal appeals court held that such testimony was admissible and relied upon and quoted from Lee v. State, 246 Ala. 69, 18 So.2d 706, in support of its holding.
This Court has established the rule that evidence of other similar acts and crimes is admissible in the prosecution for sex crimes, including fornication, statutory rape, sodomy and carnal knowledge, as bearing on the notice, intent, scienter and identity of the accused. See Wilkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied 240 Ala. 52, 197 So. 81; Brown v. State, 32 Ala.App. 131, 22 So.2d 445; Daniels v. State, 243 Ala. 675, 11 So.2d 756; Robinson v. State, 243 Ala. 684, 11 So.2d 732; Johnson v. State, 242 Ala. 278, 5 So.2d 632; Jackson v. State, 229 Ala. 48, 155 So. 581.
However, this Court in Brasher v. State, 249 Ala. 96, 30 So.2d 31, a case involving the prosecution for carnal knowledge of a thirteen year-old girl wherein the state in the trial was allowed to introduce evidence of the defendant's alleged mistreatment of a five year-old girl approximately four months prior to the act forming the basis of the prosecution, addressed itself to this question:
" * * * Can the prosecution introduce evidence of other offenses committed by the accused with third persons for the purpose of identifying him as the person who committed the specific crime charged, when such evidence does nothing more than show the accused's inclination or disposition to commit that type of crime or to show his sexual depravity?" Id. at 99, 30 So.2d at 33.
In a well-reasoned opinion, this Court, as then constituted, concluded that the rule in the Wilkins case should not be extended so as to permit the state to introduce evidence of other offenses committed by the accused with third persons for the purpose of identification when such evidence merely tends to show disposition, inclination, propensity or depravity. It is inescapable that the reasoning of Brasher applies to all reasons for admission and not merely to the matter of identity, if such evidence merely tends to show the accused's inclination or disposition to commit that type of crime or to show his sexual depravity.
Justice Lawson in Brasher stated as follows:
In the case under review, I fail to see where the evidence of the accused's alleged activities with Rita Nelson has any connection with the particular crime for which Durham was tried other than to show his purported disposition, inclination, propensity or depravity.
Brasher is a later expression of this Court than Lee v. State, supra. The scholarly rationale of Brasher persuades me to follow it in the case at bar.
In his original Petition for Writ of Certiorari, Durham did not point out the conflict existing between Brasher and the decision of the Court of Criminal Appeals in the instant case. However, this point was argued in brief. At the time of oral argument, petitioner's counsel orally requested of this Court leave to amend the Petition for Writ of Certiorari to cure this defect. At the conclusion of the oral arguments, the cause was submitted but this Court reserved the right to determine whether or not the petitioner should be allowed to amend his petition.
On the day following the oral arguments, a written motion for leave to amend the Petition for Writ of Certiorari, as well as the amendment of said petition, was filed by counsel for the petitioner. On the same day, the state filed a motion to strike said motion for leave to amend and said amendment of petition.
While no vote was taken by this Court on the substantive question, it clearly appeared from discussions in a general conference of this Court that the majority felt that the rationale of Brasher should control over Lee v. State, supra. A majority of the Court felt that the amendment came too late and, therefore, no treatment should be given to the substantive issue. Being motivated by a philosophy that cases should be determined...
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Bowden v. State
...]." (Emphasis added.) 249 Ala. at 101, 30 So.2d at 35-36. However, approximately 22 years later, in the case of Durham v. State, 47 Ala.App. 89, 250 So.2d 693 (1969), then-Judge Almon, writing for the Court of Criminal Appeals, expressly relied upon Lee and concluded that it was permissible......
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