Franks v. State, 5 Div. 713
| Decision Date | 05 November 1968 |
| Docket Number | 5 Div. 713 |
| Citation | 45 Ala.App. 88,224 So.2d 924 |
| Parties | Walter Neal FRANKS v. STATE. |
| Court | Alabama Court of Appeals |
Jas. K. Haygood, Jr., Auburn, for appellant.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
Appellant stands convicted in the Circuit Court of Lee County, Alabama, of the offense of second degree burglary. His punishment was fixed by the court at six years in the penitentiary. From said conviction and sentence, this appeal is made.
Curtis Clark testified for the prosecution that he had returned to his place of business, a pharmacy, the night of January 17, 1968, after having closed for the evening; that he noticed the front door 'had been busted into' and that a lock was lying on the floor. He stated that he told his son, who was with him at the time, to go next door and call the police; that he later saw a car drive up and Lt. Beasley got out; and that he told Beasley that someone had broken into his store and he had seen them inside.
Clark further stated that he went to the back door of the pharmacy while Beasley watched the front door; that he (Clark) had a pistol; that he saw 'a figure' open the back door and come out; that he fired his gun into the air and 'hollered 'halt"; and that the figure stopped. Clark identified appellant as being the figure he stopped. The witness further stated that the door started opening again at which time he took his attention off the first man who then 'took off around the building.'
Lt. Charles Beasley testified that on the night in question, while he was driving past Clark's Pharmacy, he noticed 'some figures' in the shadows, became suspicious and stopped; and that he found that the figures were Mr. Clark and his son. Beasley stated that Clark went to the back door of the building while he remained at the front; that he heard some shots from the back and heard someone running toward him; and that he ran after the running figure when it refused to stop and caught it in a yard next door to the pharmacy.
Beasley stated further that he had a struggle with the figure, who proved to be a man, and noticed that he had something in his hand. When asked if he knew what it was, Beasley answered, 'Sul-Spantab.' He identified the figure as being Walter Neal Franks, the appellant.
During the testimony of witness Curtis Clark, the following occurred:
'A. Walter Neal Franks.
'THE COURT: That you are looking at now?
(Emphasis added.)
It is appellant's contention that the court's questions quoted hereinabove were highly prejudicial to the defendant in that the court instructed the witness to give names when he referred to a particular person when, in fact, the witness had not shown any knowledge that he knew the defendant or whether the defendant was in the courtroom; and that the trial judge pointed out the defendant to the witness and demanded that he call the defendant by name.
We observe in the record, however, that Clark testified prior to the above quoted colloquy as follows:
It appears that the questions propounded by the judge to the witness were directed toward eliminating any confusion which might arise concerning the identity of the parties involved. Bricken, P.J., in Register v. State, 19 Ala.App. 11, 94 So. 778, stated:
'It was not only within the power of the court to propound questions to witnesses, but if justice required, or if it appeared necessary, it was the duty of the court so to do, and such action upon the part of the court cannot be construed as an aid to the prosecution or as being prejudicial to the substantial rights of the defendant. * * *'
The court's questions, in the instant case, were not prejudicial but were in fact proper in that they eliminated confusion.
Appellant also contends that the court erroneously admitted into evidence the bottle of 'Sol-Spantab' previously testified to by Lt. Beasley.
On reviewing the record, we find that Curtis Clark identified the bottle as having come from his pharmacy. Lt. Beasley testified that appellant had the bottle in his hand during the struggle between himself and appellant and that afterwards he went back and found the bottle on the ground where the struggle occurred.
This court quoted 22 C.J.S. Criminal Law § 709, p. 1203, which states in part:
"As a general rule, article * * * which are properly identified and which tend to show the commission of the crime or the manner in which it was committed or to elucidate some matter in issue, are admissible in evidence for inspection and observation by the jury." Lackey v. State, 41 Ala.App. 46, 123 So.2d 186.
The testimony of both Clark and...
To continue reading
Request your trial
-
Barbee v. State, 6 Div. 458
...Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974); Rice v. Hill, 278 Ala. 342, 178 So.2d 168 (1965); Garner, supra; Franks v. State, 45 Ala.App. 88, 224 So.2d 924 (1968). Even though the judge's questions did elicit testimony from a defense witness (the defendant's mother) which conflicted......
-
Ware v. State
...in issue, are admissible for inspection and observation by the jury. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Franks v. State, 45 Ala.App. 88, 224 So.2d 924. Also, where the evidence is probative of an element of the corpus delicti and of the defendant's participation in the offense,......
-
Rocker v. State
...verdict in the case, and his decision in this matter will not be reversed except for a clear abuse of discretion. Franks v. State, 45 Ala.App. 88, 224 So.2d 924 (1968); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Woods, In the present case the unauthorized communications reached on......
-
Burlison v. State
...in issue, are admissible for inspection and observation by the jury. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Franks v. State, 45 Ala.App. 88, 224 So.2d 924. Also, where the evidence is probative of an element of the corpus delicti and of the defendant's participation in the offense,......