Jones v. State

• Decision Date: 03 February 1942
• Docket Number: 4 Div. 657.
• Citation: 30 Ala.App. 360,6 So.2d 26
• Parties: JONES v. STATE.
• Court: Alabama Court of Appeals

6 So.2d 26

30 Ala.App. 360

JONES v. STATE.

4 Div. 657.

Alabama Court of Appeals

February 3, 1942

W. R. Belcher and A. L. Patterson, both of Phenix City, for appellant.

Thos S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen for the State.

BRICKEN Presiding Judge.

This appellant and three others, not on trial, were jointly indicted charged with robbery; specifically, that the said named parties, "feloniously took lawful money of the United States of America, a further description of the same being to the Grand Jury unknown, of the value of $45.00, the property of L. M. Lavender, from his person and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same," etc.

Upon the trial of the case in the court below, it was affirmatively disclosed by the evidence, without dispute that the crime complained of in the indictment had been committed. It was also affirmatively shown, without dispute or conflict, that said crime of robbery was committed by two and only two, of the four persons charged in the indictment. This evidence disclosed that the robbery was perpetrated by the named defendants Renfroe and Elliot. There is not a scintilla of any legal evidence tending in any manner to connect this appellant with the commission of the offense. It appears from the testimony upon the trial of this case that throughout the whole proceedings, that is to say, from the time this appellant was arrested and all along pending the trial he never at any time made any admission to the effect that he entered into an agreement with the other named defendants to commit the crime, to the contrary, as stated, he upon every occasion, stoutly denied that he had done so, and there appears no legal evidence in this case to the contrary. In the case of People v. Swersky, 216 N.Y. 471, 111 N.

E. 212 (Court of Appeals), the eminent Justice Cardozo, of that court; (afterwards a Justice of the Supreme Court of the United States), under facts in that case of similar import as in the case at bar, said: To permit a jury to say that the defendant did join in the commission of the offense, when the only evidence is that he did not, would be to permit them to build their verdict upon speculation and suspicion.

The trial court committed reversible error in allowing Lavender, the alleged injured party, to testify over the objection and exception of defendant, as to what co-defendant Renfroe stated in the presence of this appellant, towit, "that they all went to rob that place." Said testimony of Lavender indicated that the above quoted statement by defendant Renfroe was made in the presence of this appellant during the preliminary trial or other judicial proceeding in connection with this case. If the ruling of the court under discussion was upon the theory the evidence was admissible because of nondenial, or silence of the defendant, the court labored under a misapprehension of the law. (1). The general rule for the introduction of admission from silence has been stated to be: for silence to be admissible, it must be shown the accused heard and understood the specific charge against him, and that he heard it under circumstances not only permitting but calling upon him for a denial, taking into consideration all the circumstances and the persons present. And if it be proved that the accused when he heard the incriminating statement positively denied it (as here), the statement is inadmissible and cannot be admitted in evidence. In other words, the admissibility of silence depends on whether he hears and understands the statement and comprehends its meaning; whether the truth of the facts embraced in this statement is within his own knowledge; whether he is in such a situation that he is at liberty to make a reply. If made in the course of any judicial hearing, as here, he could not interfere and deny the statement; it would be to charge the witness with perjury and inconsistent with decorum and the rules of law or if he is restrained by fear, or by doubts of his rights, by a belief that his security will be promoted by his silence. Underhill's Criminal Evidence, 4th Edition, p. 493.

(2). Moreover, practically all the testimony adduced upon the trial in the court below against this defendant, related to and was confined as to what the witnesses had testified to at the preliminary trial of these defendants. This clearly appears in the bill of exceptions. The testimony in this connection was in response to questions propounded to the witnesses, as follows: "Q. Now tell the jury as best you can, all that you heard this defendant here say down there at that preliminary hearing?" The defendant, Tolbert Jones (appellant), promptly objected to said questions on the ground that it was not the best evidence. This objection met the required rule. In fact, a general objection without stating any grounds would have sufficed. Davis v. State, 17 Ala. 415. In said case our Supreme Court said:

"The solicitor proved on the trial by the magistrate before whom the prisoner was brought upon this charge, what a witness had testified on the examination * * *. The statute expressly requires that the testimony of the witnesses on such examinations shall be reduced to writing by the magistrate or under his direction, and shall be signed by the witnesses if required by the magistrate; and the examination is to be certified by the magistrate to the court at which the accused is required to appear. As it is to be intended that the magistrate took the testimony in writing according to his duty, parol evidence of what the witness testified is inadmissible, until it is shown that...