Ellis v. State

Decision Date21 January 1943
Docket Number6 Div. 60.
Citation11 So.2d 861,244 Ala. 79
PartiesELLIS v. STATE.
CourtAlabama Supreme Court

Rehearing Denied Feb. 25, 1943. [Copyrighted Material Omitted]

Beddow, Ray & Jones, of Birmingham, for appellant.

Wm. N. McQueen, Atty. Gen., and John O. Harris Asst. Atty. Gen., for the State.

THOMAS, Justice.

The indictment was for rape. The verdict of the jury was "guilty as charged" and the punishment was fixed at twenty-five years' imprisonment in the penitentiary. There was notice of appeal and request for the execution of the sentence of the law to be suspended pending such appeal.

The bill of exceptions shows in detail the respective facts attending the parties from the time Miss Phillips, the prosecutrix, entered the automobile of defendant and his companion Kabase, to the time of the rape. It would serve no good purpose to extend these details in the opinion. The testimony of the young woman is in direct conflict with that of the defendant and his companion in the car and at the alleged scene of the crime. Hence a jury question was presented as to the guilt or innocence of the defendant. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. The other witnesses tend to corroborate Miss Phillips.

The appellant contends that prejudicial error resulted in rulings of the court and in argument of counsel for the state. It is insisted that error intervened in argument of the state's counsel of an inflammatory type against the defendant that should have warranted a mistrial, which was moved for by defendant and overruled by the trial court.

The testimony for the state tended to show that the prosecutrix made a loud outcry at or immediately before her attack and the outcry was heard by three witnesses, ladies employed in the Birmingham Tuberculosis Sanitarium, near which place the rape occurred. After the consummation of the act in controversy, the prosecutrix escaped to a negro house nearby and the defendant and his companion sought her there without avail. The testimony of the witnesses from the sanitarium and that from the witnesses in the negro house corroborated the testimony of the prosecutrix.

The other testimony for the state corroborated the evidence as to the arrival of prosecutrix at the house of Mr. Prater; that she immediately complained of being ravished; police officers were called, who carried prosecutrix to the Hillman Hospital where she was examined by witnesses who testified on the trial as to bruises and scratches upon her body. The evidence further shows the examination of Miss Phillips by a physician at her home later in the day, and to the effect of scratches on her lower limbs, a redness upon her forehead and breast and in and about her privates.

The defendant, in a word, went to the jury upon the testimony of witness Kabase and his own testimony, with the corroborating testimony of a policeman who examined the body of the defendant after the alleged event and found the absence of marks and injuries upon his person. The girl in question had testified that she had made an active resistance to his approaches as she was able to make and failed to prevent the accomplishment of his rape; that she not only made outcry, but fought him as hard as she was enabled to under the circumstances and as she was held by the defendant.

By virtue of the statutes, no objection must be allowed to the competency of a witness because of his conviction for any crime except perjury or subornation of perjury, but if he has been convicted of a crime involving moral turpitude the fact may be proven and it goes to his credibility. It is further provided by statute that a witness may be examined touching his conviction for crime and his answer may be contradicted by other evidence. Code 1940, T. 7, §§ 434, 435. This statute was from the Act of 1883, p. 146 and thereafter codified with the new Section 1796 in the Code of 1896, after the decision in Murphy v. State, 108 Ala. 10, 18 So. 557.

It is noted that the statute authorizing evidence of a witness convicted of an offense involving moral turpitude does no more than authorize evidence of the fact of conviction for such offense as it may affect the weight of his evidence. It has been held that it is not permissible to go into the details of such offense. Waters v. State, 117 Ala. 108, 22 So. 490; Latikos v. State, 17 Ala.App. 655, 88 So. 47. Prior to this statutory authorization of such discrediting evidence of witness' conviction of an offense involving moral turpitude, such conviction could only be given in evidence by a duly authenticated record of the conviction of defendant or a properly established copy thereof, and may not be proven by parol evidence in the first instance. Murphy v. State, 108 Ala. 10, 18 So. 557.

It has been held proper to ask a witness whether he pleaded guilty of petit larceny (Hutchens v. State, 207 Ala. 126, 92 So. 409), and whether he had received a sentence for stealing chickens (Wells v. State, 131 Ala. 48, 31 So. 572; Suttle v. State, 18 Ala.App. 411, 92 So. 531), and whether he served time for larceny (Orr v. State, 225 Ala. 642, 144 So. 867), and whether he served time in the penitentiary for murder (Rountree v. State, 20 Ala.App. 225, 101 So. 325), and whether he had done time in the penitentiary. To further illustrate the cases under the statute, it has been held that the discrediting of a witness by showing his conviction of a crime does not authorize the reception of evidence indicating his innocence of the charge, or showing the particulars of the offense (Waters v. State, 117 Ala. 108, 22 So. 490; Fuller v. State, 147 Ala. 35, 41 So. 774; Kendrick v. Cunningham, 9 Ala.App. 398, 63 So. 797), or showing that the witness never paid the fine or performed the hard labor sentence imposed upon him. Formby v. Williams, 17 Ala.App. 24, 81 So. 360. However, in support of the credibility of the witness, evidence that he was youthful when convicted is admissible. Hale v. State, 10 Ala.App. 22, 64 So. 530, which was not passed upon by this court.

The defendant as a witness in his own behalf and on cross-examination by the state was asked if he had been convicted of grand larceny and answered, "No sir. I was not convicted of larceny." The witness then testified: "You ask me if on December 19, 1933, if I wasn't sentenced to one year and one day, to one year and seven months out of this court here on a charge of larceny and burglary, and if I wasn't put on probation, that is if my sentence wasn't suspended by the court pending my future good behavior and observance of the law, and if I was put on a suspended sentence on that conviction, and my answer is, no sir, I wasn't, not under that conviction."

The following occurred:

"The witness was then asked the following question:

"Q. Your answer was that you were not put on probation or recognized your sentence suspended on that conviction? Now, you were convicted though on the date I mentioned weren't you in December, 1933?

"Counsel for the defendant objected to the question unless the Solicitor asked the question in the language in which the predicate must be laid, and unless the question is asked with respect to an offense involving moral turpitude, and that the witness is being asked if he wasn't convicted on that date for burglary and whether he was convicted for larceny, grand and petit, and the witness answered, no; and counsel for the defendant objected to the question on the ground that it assumes it was an offense involving moral turpitude.

"The Court overruled the objection of the defendant, to which ruling of the Court, the defendant then and there, duly and legally reserved an exception.

"The witness answered:

"Yes sir, but not on both charges.

"Continuing the witness testified as follows:

"It was the charge of buying ten dollars worth of stolen property. I was convicted in 1933. And the charge was buying, receiving and concealing stolen property, not knowing it to be stolen, and I was sentenced to one year and one day to one year and seven months in the penitentiary. I think I plead guilty to buying and receiving. That's all the Solicitor's office read to me, when they told me if I would plead guilty they would give me a year's probation. I was sentenced to the penitentiary for one year and one day to one year and seven months, and that sentence was suspended pending my good behavior."

The witness was then asked by state's solicitor:

"You were charged with breaking into a Hill store, one of Hill's stores?

"The witness answered:

"No, sir." (The court misunderstood the question and then followed an objection by counsel for defendant and the ruling of the court was): " * * * Mr. Long has a right to ask that question, I think, and I overrule the objection and will let the question be asked, whether he was convicted of breaking into Hill's store."

There was further objection and the court said: "Of course, my statement, gentlemen of the jury,--that question that was asked the witness by Mr. Long, in substance whether or not the witness here, who is also the defendant, wasn't convicted of breaking into Hill's store,--I instruct you that that question, of course, is not evidence. I think you understand that anyway. Anyway the evidence comes from the witness stand, but I also instruct you that in the Court's opinion it wasn't an improper question and that the witness should answer that question, and I overrule the objection to it."

To this ruling of the court defendant's counsel replied: "I want to object to the Court's statement that that is a proper statement, and I don't agree with the Court's statement that that is a proper question, and we except to the Court's explanation that that was a proper question because, Judge, I don't think your Honor understood...

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