Ex parte McIntosh

• Decision Date: 23 September 1983
• Citation: Ex parte McIntosh, 443 So.2d 1283 (Ala. 1983)
• Parties: Ex parte Ricky Glenn McINTOSH. (In re Ricky Glenn McINTOSH v. STATE of Alabama). 82-564.
• Court: Alabama Supreme Court

Page 1283

443 So.2d 1283

Ex parte Ricky Glenn McINTOSH (In re Ricky Glenn McINTOSH v. STATE of Alabama).

82-564.

Supreme Court of Alabama.

Sept. 23, 1983.

Rehearing Denied Dec. 16, 1983.

James W. Parkman, III of Parkman & Little, Dothan, for petitioner.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.

JONES, Justice.

We granted the petition for writ of certiorari in this case for consideration of a single issue: Whether Defendant's prior conviction for felony possession of marijuana is a conviction of a crime involving moral turpitude, and thus admissible into evidence for impeachment purposes. For reasons hereinafter stated, we hold that felony possession is not a crime involving moral turpitude. Accordingly, we reverse and remand.

FACTS

Defendant Ricky Glenn McIntosh was tried for rape in the first degree, convicted by a jury, and sentenced to life imprisonment. The Court of Criminal Appeals affirmed. ¹ During the trial, Defendant took the stand in his own defense and admitted, during questioning by the assistant district attorney, to having a prior felony conviction for possession of marijuana. This evidence was admitted for impeachment purposes, over a timely objection by Defendant's counsel.

DECISION

On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character or his inclination or propensity to commit the type of crime for which he is being tried. Loggins v. State, 52 Ala.App. 204, 290 So.2d 665 (1974); Swicegood v. State, 50 Ala.App. 105, 277 So.2d 380 (1973).

As a general rule, however, a defendant who takes the stand in his own behalf during a criminal trial can be questioned on cross examination about prior convictions for crimes involving moral turpitude. Sims v. State, 51 Ala.App. 183, 191, 283 So.2d 635, 642 (1973). Code 1975, § 12-21-162(b), which governs the admissibility of a witness's prior conviction for a crime involving moral turpitude, states:

"As affecting his credibility a witness may be examined touching his conviction for a crime involving moral turpitude, and his answers may be contradicted by other evidence."

The statute, however, does not define "moral turpitude," and gives no guidance as to what crimes involve moral turpitude.

C. Gamble, McElroy's Alabama Evidence, § 145.01(7) (3d ed. 1977), comments on the Alabama rule thusly:

"The Supreme Court of Alabama has defined the term 'moral turpitude' on many occasions and the following are the most commonly found definitions. Moral turpitude signifies an inherent quality of baseness, vileness and depravity. It is immoral in itself, regardless of the fact that it is punished by law. Therefore, an offense for conviction of which a witness' credibility is lessened must be mala in se and not mala prohibitum. [Footnote 1.]"

"[Footnote 1]. Meriweather v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780 (1972) (defining moral turpitude as 'an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowman or to society in general'); Sims v. Callahan, 269 Ala. 216, 112 So.2d 776 (1959) (contains a comprehensive discussion of these definitions); Lackey [Lakey] v. State, 206 Ala. 180, 89 So. 605 (1923); Pippin v. State, 197 Ala. 613, 73 So. 340 (1916); Gillman v. State, 165 Ala. 135, 51 So. 722 (1940)."

For an additional case defining "moral turpitude," see Williams v. State, 55 Ala.App. 436, 437, 316 So.2d 362, 363 (1975).

In Gholston v. State, 338 So.2d 454 (Ala.Cr.App.1976), the Court of Criminal Appeals held that the sale of marijuana is a crime involving moral turpitude. Two years later, that court held that misdemeanor possession of marijuana is not a crime involving moral turpitude, but left unanswered the question of whether felony possession of marijuana involved moral turpitude. ² Luker v. State, 361 So.2d 1124 (Ala.Cr.App.), cert. dismissed, 361 So.2d 1127 (Ala.1978).

Because we must now decide a question of first impression, that being whether felony possession of marijuana involves moral turpitude, a close analysis of the moral turpitude impeachment rule and its rationale proves helpful. The high probability of prejudice against a defendant makes the admissibility of his previous criminal convictions a controversial issue. Note, 18 Wake Forest L.Rev. 571 (1982).

This notion of prejudice has been said to encompass two tendencies of juries: 1) The tendency to convict not because the defendant is guilty of the charged offense, but because evidence introduced shows he is a bad person who should be incarcerated regardless of his present guilt, and 2) the tendency to infer that, because the defendant committed a prior crime, he committed the crime charged. Comment, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L.J. 763 (1961). Thus, a defendant wishing to testify in his own behalf faces this dilemma: Testify and run the risk of greatly prejudicing his defense by introduction of prior convictions to impeach, or refrain from testifying and damage his defense by not telling his side of the story.

The rationale for admitting impeachment evidence when a defendant, or any other witness, testifies is that certain evidence of prior criminal acts and general character relates to a person's propensity to lie; therefore, the jury should have and use this evidence, but only for the limited purpose of evaluating the witness's veracity. It follows, then, for impeachment evidence of a prior criminal conviction to be admissible, the prior crime must involve such dishonesty, baseness, or depravity that its commission adversely reflects on the witness's credibility thenceforth.

Our cases show that not all crimes punishable by imprisonment are crimes involving moral turpitude. McGovern v. State, 44 Ala.App. 197, 205 So.2d 247 (1967). The case law further shows that all felonies do not per se involve moral turpitude. Owens v. State, 291 Ala. 107, 278 So.2d 693 (1973); Kennedy v. State, 371 So.2d 464 (Ala.Cr.App.1979).

Among those crimes that rise to such a level as to permanently cast doubt on the truthfulness and veracity of those who commit them are: 1) murder, Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956); 2) rape, Matthews v. State, 51 Ala.App. 417, 286 So.2d 91 (1973); 3) burglary, Matthews, supra, 4) robbery, Matthews, supra; 5) larceny, Matthews, supra; and 6) income tax evasion, Meriwether v. Crown Investment Corp., 289 Ala. 504, 268 So.2d 780 (1972).

Among those crimes not involving moral turpitude are: 1) assault and battery, Gillman v. State, 165 Ala. 135, 51 So. 722 (1910); 2) bootlegging, Wiggins v. State, 27 Ala.App. 451, 173 So. 890 (1937); 3) distilling or otherwise violating prohibition laws, Lakey v. State, 206 Ala. 180, 89 So. 605 (1921); 4) doing business without a license, Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927); 5) trespass to land, United States Lumber & Cotton Co. v. Cole, 202 Ala. 688, 81 So. 664 (1919); 6) vagrancy, Bryan v. State, 18 Ala.App. 199, 89 So. 894 (1921); 7) using abusive and obscene language, Craven, supra; and 8) public drunkenness, Grammer v. State, 239 Ala. 633, 196 So. 268 (1927). In addition, drug-related offenses under prior criminal statutes have been held not to involve moral turpitude. Pippin v. State, 197 Ala. 613, 73 So. 340 (selling cocaine (when such sale was a...