Elliott v. State, 1 Div. 141

• Decision Date: 09 May 1972
• Docket Number: 1 Div. 141
• Citation: 266 So.2d 318,48 Ala.App. 515
• Parties: Herbert ELLIOTT v. STATE. Lonnie JOHNSON v. STATE. Calvin MEANS v. STATE. , 142 and 143.
• Court: Alabama Court of Criminal Appeals

Page 318

266 So.2d 318

48 Ala.App. 515

Herbert ELLIOTT v. STATE.

Lonnie JOHNSON v. STATE.

Calvin MEANS v. STATE.

1 Div. 141, 142 and 143.

Court of Criminal Appeals of Alabama.

May 9, 1972.

Rehearing Denied June 30, 1972.

Kenneth Cooper, Bay Minette, Delano Palughi, Mobile, for appellants.

William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

The appellants were separately indicted, tried and convicted for rape. They are charged with having committed the crime on the same occasion upon the same victim. Separate records are filed on appeal, but since we are of opinion all three cases are due to be reversed, and some of the questions raised are common to all, they are treated together. See Stone v. State, 243 Ala. 605, 11 So.2d 386.

Although the evidence presented was identical in each case, Johnson's sentence was 20 years; Means was 75 years and Elliott's life imprisonment.

The evidence for the state tended to show that around midnight April 18, 1970, the prosecuting witness, an eighteen year old white woman, attempted to turn onto Belforest Road near Fairhope, but due to heavy fog, her automobile ran into a ditch.

Shortly thereafter an automobile in which seven young Negroes were riding stopped and five males got out and tried to push the automobile out of the ditch but were unsuccessful. Meanwhile another car with defendants Means and Johnson in it stopped, and Means got into the prosecuting witness's car and tried to start it. The girl, becoming alarmed at something that was said or done, said she was going home to get her father to pull her car out of the ditch. She took the keys and started walking toward Fairhope. When she was a short distance down the road she heard someone running behind her and heard someone say 'catch her.' She was grabbed by the arms and legs and taken onto a dirt road and raped by four men. She could not identify either of the defendants as being the persons who raped her.

The defendants testified as witnesses and each denied having sexual relations with the prosecuting witness.

State's witness Leon Newman testified that he, Richard Bradley and Herbert Elliott were riding in the first automobile that stopped near the car that was in the ditch. He further stated that when the prosecuting witness startedwalking toward Fairhope, Richard Bradley, Herbert Elliott, Calvin Means and Lonnie Johnson followed her. It was too foggy to see where they went, but he heard the girl screaming and he hid behind a bush.

Verbal confessions allegedly given by all three defendants were testified to by the law enforcement officers. In each case the investigating officers were allowed to testify, over objection that the defendant's confession was freely and voluntarily made. This was error. See Hunt's case, Hunt v. State, 135 Ala. 1, 33 So. 329; Blythe v. State, 24 Ala.App. 142, 131 So. 457; Jones v. State, 156 Ala. 175, 47 So. 100; Warren v. State,44 Ala.App. 221, 205 So.2d 916, cert. denied, 281 Ala. 725, 205 So.2d 920.

The prosecuting witness testified she was examined by a gynecologist, Dr. Hogan in Mobile, a day or so after the alleged rape.

In Johnson and Means the sheriff of Baldwin County was allowed, over objection, to testify that a subpoena was issued for Doctor Hogan in Mobile, Mobile County, but that it could not be served because Doctor Hogan was out of town. This testimony was inadmissible as a conclusion and was hearsay. Burrow v. State, 23 Ala.App. 99, 121 So. 449.

Also, in Johnson the court erred in overruling the defendant's objection to the district attorney's explanation to the jury the reason for Doctor Hogan's absence from the trial.

Appellant Elliott denied following the prosecutrix when she left the automobile, but testified that after they were unable to get the car out of the ditch he walked to Daphne to telephone for a wrecker, but could not find anyone to get change to operate the pay telephone. During his cross examination he was asked how long it took to walk to Daphne and back. His answer was about 25 minutes. Thereupon the following occurred:

'Q. Did you hear Leon Newman say how long this lasted?

'A. Leon Newman lied.

'Q. Are you saying the Sheriff lied?

'A. I didn't tell him that.

'Q. You are saying Mr. Garner lied?

'MR. COOPER: I object to this line of questioning--the manner in which he is asking the question; he is trying to get him to say the Sheriff was lying and--the court ruled--

'THE COURT: He called one of his witnesses a lie; I overrule the objection.

'MR. COOPER: Except.

'Q. Is that right?

'A. Right.

'Q. So all of the people that took the stand and testified against you have lied about it?

'A. That is right, because I didn't do anything.'

A question of whether or not a witness has told the truth calls for a conclusion and is invasive of the jury's province. Wright v. State, 149 Ala. 28, 43 So. 575; Miller v. State, 21 Ala.App. 261, 107 So. 226; Haynes v. State, 40 Ala.App. 106, 109 So.2d 738.

In the following cases the Supreme Court of South Carolina held that it is reversible error to permit the district attorney in the cross examination of the accused, or a witness for him, to ask whether or not another witness has told the truth, because to do so would force such witness to directly attack the veracity of the other witness; State v. Outen, 237 S.C. 514, 118 S.E.2d 175; State v. Hariott, 210 S.C. 290, 42 S.E.2d 385; State v. Warren, 207 S.C. 126, 35 S.E.2d 38.

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