Gallman v. State

• Decision Date: 13 February 1940
• Docket Number: 4 Div. 527.
• Citation: 29 Ala.App. 264,195 So. 768
• Parties: GALLMAN v. STATE.
• Court: Alabama Court of Appeals

195 So. 768

29 Ala.App. 264

GALLMAN v. STATE.

4 Div. 527.

Court of Appeals of Alabama

February 13, 1940

Rehearing Stricken March 26, 1940.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Henry Gallman was convicted of buying, receiving or concealing stolen property, and he appeals.

Reversed and remanded.

A. L. Patterson and Roy L. Smith, both of Phenix City, for appellant.

Thos S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for the State.

PER CURIAM.

Appellant was indicted and charged with the offense of buying receiving, concealing or aiding in concealing certain alleged stolen property. There was but one count in the indictment which is as follows: "The Grand Jury of said County charge that, before the finding of this Indictment that Henry Gallman did buy, receive, conceal, or aid in concealing one lavatory of the value of $15.00, one kitchen sink of the value of $20.00, all of the aggregate value of $35.00, the personal property of L. L. Purvis, knowing that the same were stolen, and not having the intent to restore them to the owner."

The trial was had upon said indictment and resulted in the conviction of the defendant, as charged in the indictment, whereupon the court pronounced and entered a judgment of conviction and fixed his punishment at imprisonment in the penitentiary for an indeterminate period of not less than six years, and not more than six and one half years. From the judgment of conviction this appeal was taken.

The evidence offered by the State upon the trial of this case in the court below tended to prove that the defendant came into the possession of the property described in the indictment solely through a burglarization of the house of L. L. Purvis, which proof was wholly insufficient to authorize the conviction of the defendant. Foster v. State, 39 Ala. 229; Booker v. State, 151 Ala. 97, 44 So. 56; Adams v. State, 60 Fla. 1, 53 So. 451, Ann.Cas.1912B, 1209 and Note; Smith v. State, 59 Ohio St. 350, 52 N.E. 826; State v. Hamilton, 172 S.C. 453, 174 S.E. 396; People v. Berger, 142 Misc. 178, 254 N.Y.S. 136.

An acquittal upon an indictment charging the receiving of stolen goods not being a bar to a subsequent indictment for burglary, the defendant, to meet the proof offered by the State against him in the court below, testified as a witness in his own behalf and offered other testimony, all of which tended to show that the defendant bought the property, described in the indictment, bona fide and at a fair price.

The appellant has assigned numerous errors which he contends were committed by the trial court in the trial of his case and strenuously insists that all of the alleged errors of which he complains were greatly prejudicial to him upon his said trial. This court deems it necessary to consider only two of the alleged errors assigned by the appellant upon this appeal.

1. When the State rested its case upon the trial in the court below, it appears from this record that counsel for the defendant asked permission of the court to talk to their witness, Sam Jordan. Thereupon the solicitor announced that said witness was summoned also for the State, and that they would like to be present when counsel for the defendant talked to him, and thereupon the court said "That they (the solicitors) had the right."

The defendant thereupon reserved an exception to the action of the court in declining to permit counsel to confer with said witness without the presence of the solicitors. The record then recites that the court then said in open court: "The record doesn't show that any subpoena was ever issued for the witness, Jordan."

It is to be observed that the witness, Jordan, was then in court, and that the solicitor had announced that this witness "was summoned also for the State." Whether, or not, a summons had been issued for the witness, Jordan, for either the defendant, or the State, or both, is immaterial as it appears that at the time counsel for the defendant made request of the court for the examination of said witness that said witness was then in the witness room, and available for consultation.

The granting of a suspension of proceedings in the trial of a case for private consultation with a witness is, of course, discretionary with the trial court. This discretion extends to the determination of whether or not the court will suspend the trial for a sufficient length of time to enable counsel to interview a witness. The discretionary power vested in the court is to permit, or not to permit, the conference with the witness as a just, sound and reasonable exercise of the judicial discretion may determine. The trial court, in the opinion and judgment of this court, abused its discretion in permitting counsel for the defendant to confer with the witness, Sam Jordan, only in the presence of the State's solicitors. The trial court, in the opinion and judgment of this court, was without legal power and authority to impose upon the defendant's right to confer with this witness, the arbitrary condition that such conference should take place in the presence of the State's solicitors.

It is a mistake of a serious nature for a trial court, or opposing counsel, to assume or intimate that counsel for the defendant is not at full liberty to question, whenever he sees fit, any person who knows or is presumed to know the facts attendant upon the commission of the offense with which his client is accused. It is his solemn, sworn duty to ascertain, as far as he can, what the evidence is, and his duty is not at an end when he has examined, no matter how exhaustively, his client; he must see and talk with the witnesses. Sharwood's Legal Ethics, p. 121; Elliott's General Practice, Chapt. 1, Sections 1-5; Chitty's Practice, Vol. 2, pages 21 and 53.

The rule is well stated in a North Carolina case, State v. Williams, 91 N.C. 599, in the following language: "It is competent for the prisoner or his counsel to converse with any one supposed to have knowledge of the offence imputed and ascertain the facts so known. A party, even when the state is such, cannot by first summoning a witness deprive the other party, or the accused, of the testimony of the witness when favorable, nor of an opportunity of ascertaining what information he may possess, before putting him on the stand, as he might do should the state decline to introduce and examine him. His information ought to be sought and obtained voluntarily and fairly from the witness, and not by what he may deem to be a constraint."

To the same effect, we think, is the case of Wireman v. Commonwealth, 211 Ky. 495, 277 S.W. 822.

If the defendant had the right to confer with the witness, Jordan, at all, he had the right to such conference in the absence of any intimidating influences whatever.

The defendant, himself, had no right to the information of the witness except that which he, voluntarily and fairly, was willing to give. If counsel for the defendant abuses his right in obtaining the true and voluntary statement of a witness with reference to the facts deemed relevant upon the trial of the case then such counsel is amenable to the statutes of this State prohibiting the bribery, or intimidation, of witnesses and other specified improper conduct in connection therewith. It is therefore the opinion and judgment of this court that the trial court committed reversible error and abused its discretion in imposing upon defendant the right to confer with the witness upon the sole condition that the State's solicitors be present at such conference.

2. During the progress of the trial of this case in the court below, the defendant introduced as a witness, one, Walter Ford, who testified, among other things, that he was an electrician, and that in the month of October, 1938, he was at the home of defendant, doing some electrical work, and that while there and at a time described as "a little before dark," two negroes came to this place in a truck, upon which they had some plumbing fixtures, and that they called the defendant out to this truck.

On cross examination the witness testified that they (the two negroes) had quite a few pieces of fixtures on the truck, and that the witness did not attempt to tell the jury that they had a lavatory and sink that were the property of L. L. Purvis. At this state of the cross examination, the solicitor propounded to said witness this question: "What about one lavatory, and one kitchen sink, and one toilet, of the value of $10.00, all of the aggregate value of $45.00, the property of J. F. Snellings. Do you know whether or not that was the property he had on that occasion?"

The defendant objected to the above and foregoing question assigning as grounds for said objections that said question called for illegal, irrelevant, incompetent, immaterial and inadmissible testimony, and further that said question called for testimony which had no bearing on the issue of the guilt vel non, of the defendant, as charged in the indictment, and further that said question called for testimony whose sole and only effect would be to prejudice the defendant before the jury. The court overruled said objection and the defendant then and there duly and legally excepted and witness answered "No, sir." Thereupon the trial court, of the court's own volition, said in the presence of the jury: "He just saw certain fixtures, Mr. Andrews." The defendant objected to the above answer and moved the court to exclude it and for grounds of said objection and motion assigned the same grounds set out in the objection to said question. The court overruled said objection and motion and the defendant duly reserved an exception to the ruling of the court. The solicitor thereupon propounded the following question...