Gordon v. State

• Court: Alabama Supreme Court
• Writing for the Court: STAKELY, Justice.
• Citation: Gordon v. State, 252 Ala. 492, 41 So.2d 610 (Ala. 1949)
• Decision Date: 30 June 1949
• Docket Number: 6 Div. 865.
• Parties: GORDON v. STATE.

41 So.2d 610

252 Ala. 492

GORDON v. STATE.

6 Div. 865.

Supreme Court of Alabama

June 30, 1949

A A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty Gen., for the petition.

Beddow & Jones and G. Ernest Jones, Jr., of Birmingham, opposed.

From the opinion of the Court of Appeals here under review it appears that appellant was indicted for murder in the first degree, and convicted of murder in the second degree. After her arrest she was interrogated by police officers, and made voluntary responses which were confessory in nature. The interrogation was taken down in shorthand by a stenographer which she later transcribed, and the typewritten report was signed by appellant. One Batchelder, a police officer, who was present at appellant's interrogation testified as a witness for the State that he turned over to the solicitor's office the signed copy of said report. This witness identified some papers handed to him as a copy of said signed report, and testified that the stenographer had turned over to him this copy of the report. Witness read over the report and testified that it was an accurate report of the questions to and answers by appellant. Over appellant's objection, said copy of the report was admitted in evidence as an exhibit and was read to the jury.

STAKELY, Justice.

In the case of Elkins v. State, 250 Ala. 672, 35 So.2d 693 this court held that the best evidence rule does not apply to confessions which are extrajudicial. It was pointed out that all that the accused wrote or said which is material to the charge is competent against him. Applying the principle to the present case the state could show either what the defendant voluntarily said when she was examined or it could show the writing which she voluntarily gave as containing a statement of the facts.

Now if the state undertook to follow the first alternative, the evidence fails to meet legal requirements. Batchelder did not testify as to what the defendant said. At best he identified a writing which might be regarded as a memorandum of what the defendant said and then the writing was introduced in evidence. This was incorrect. Parsons v. State, 251 Ala. 467, 38 So.2d 209, 217; Acklen's Ex'r v. Hickman, 63 Ala. 494, 35 Am.Rep. 54; Birmingham Railway Light & Power Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Deal et al. v. Hubert, 209 Ala. 18, 95 So. 349.

This brings us to the second alternative. Could the writing which...