Hembree v. City of Birmingham, 6 Div. 69
| Decision Date | 18 March 1980 |
| Docket Number | 6 Div. 69 |
| Citation | 381 So.2d 664 |
| Parties | Billy HEMBREE, alias v. CITY OF BIRMINGHAM. |
| Court | Alabama Court of Criminal Appeals |
Miles M. Huffstutler of Elledge, Huffstutler & Smith, Birmingham, for appellant.
W. O. MacMahon, III, Asst. City Atty., for appellee.
Violation of Birmingham City Ordinance 36-28 as amended (malicious injury to property); sentence: $500 fine, thirty days hard labor and court costs.
The appellant was tried and convicted on two separate charges of malicious injury to property; one against Richard Watkins which occurred on December 7, 1978, and the other against Kenneth Jones which occurred on December 9, 1978. In both cases the appellant was charged with shooting out the windows of the victims' vehicles which were parked at Watkins' residence in Birmingham.
The appellant made no motion to exclude the City's evidence, no request for the affirmative charge, and no motion for a new trial challenging the sufficiency of the evidence. Consequently, a further recitation of the facts is unnecessary.
The appellant contends that the trial court erred in overruling his motion to dismiss the City's case on the ground of a material variance between the complaints and proof. The appellant's motion asserted only that the City's complaints used the name of Billy Hembree, whereas his name was actually Billy Hembree, Jr. On appeal he has expanded that ground to complain that not only was the suffix Jr. omitted in the complaints, but his middle initial was likewise omitted and further that the complaints failed to allege that his name was "otherwise unknown." The appellant further contends that since the City's complaints were not filed in the circuit court until the day of trial he has not waived the right to raise the misnomer by his failure to file pleas in abatement.
The appellant's oral motion in this regard was not made until after a plea to the merits, after seventeen witnesses had testified (consisting of 265 pages in the record), and not until after both the City and the appellant had rested their cases. The trial court's ruling was, "Well, at this stage of the game, I'll overrule."
The defect complained of was not one that required the taking of testimony before being discovered by the appellant. Certainly he knew his own name and could have raised the issue prior to pleading to the merits of the case. After a plea to the merits, the appellant's claim of misnomer comes too late. Wilson v. State, 251 Ala. 676, 39 So.2d 254 (1949); Ward v. State, 242 Ala. 307, 6 So.2d 394 (1942); Fibbs v. State, 52 Ala.App. 232, 291 So.2d 167 (1974); §§ 15-15-40, -41, Code of Ala.1975.
The only ground for dismissal raised in the trial court below was the absence of the suffix Jr., and we therefore will limit our discussion only to that ground raised in the trial court and ruled upon by the trial judge. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974). It has been held that the word "Junior" or "Jr." are merely matters of description and are not part of a person's legal name. An indictment omitting such a suffix is not subject to a plea of misnomer. Taylor v. State, 282 Ala. 567, 213 So.2d 566 (1968). As no error would result from the omission of the suffix "Jr." in a felony indictment, certainly no error results from its omission in a complaint charging the mere violation of a municipal ordinance. See also: Murry v. State, Ala.Cr.App., 367 So.2d 985 (1979), cert. denied, Ala., 367 So.2d 989.
The appellant contends that the trial court erroneously limited his right to confront and cross-examine witnesses by placing a twenty minute limit on examination of each witness by the City and by the defense.
The trial court made its ruling after the City's first witness testified for approximately two hours (according to the appellant), much of which was repetitious. Neither side exceeded the trial court's time limitation, nor was the trial court compelled to enforce its ruling during the course of the trial.
The right of a defendant to confront and cross-examine witnesses is guaranteed by Article I, § 6, Constitution of Ala.1901, by § 12-21-137, Code of Ala.1975, and by the Sixth Amendment to the United States Constitution. Any limitation on that fundamental constitutional right will be closely scrutinized by the appellate courts. Ball v. State, Ala.Cr.App., 337 So.2d 31 (1976), cert. quashed, Ala., 337 So.2d 39. However, it has repeatedly been held that the latitude and extent of cross-examination is a matter within the sound discretion of the trial court and is reviewable on appeal only for prejudicial abuse. Turner v. State, 289 Ala. 97, 265 So.2d 883 (1972), and cases cited therein. On appeal the party claiming an abuse of such discretion bears the burden of persuasion. Connell v. State, 294 Ala. 477, 318 So.2d 710 (1974).
In the instant case the appellant has failed to show us a single instance where the trial court prevented him from continuing his cross-examination of a witness of any material point which he felt necessary for the presentation of his case. The appellant would have a stronger argument for reversal if the record disclosed any instance where the trial court enforced the twenty minute limitation to cut off his cross-examination of a witness. However, after the trial court's limitation was announced, the record reflects a thorough and concise examination of each witness by both the City and the appellant. If anything, the ruling resulted in a more efficiently tried case and cut out much of the repetitious questioning of witnesses and repeating of their answers by counsel which is so prevalent in many records reviewed by this court. We, therefore, find no error in the trial court's action to warrant a reversal on this ground.
The appellant argues that the trial court on two occasions erroneously excluded testimony which would have illustrated bias, prejudice or interest against him on behalf of the prosecution witnesses.
Counsel for appellant asserts that the trial court erroneously denied him the right to examine Billy Hembree, Sr., concerning the circumstances surrounding the loss of the witness' hand and his testifying before the Bessemer Division Grand Jury. The record reflects the following concerning an offer of proof made by the appellant in camera :
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