Kabase v. State

• Decision Date: 16 February 1943
• Docket Number: 6 Div. 991.
• Citation: 31 Ala.App. 77,12 So.2d 758
• Parties: KABASE v. STATE.
• Court: Alabama Court of Appeals

12 So.2d 758

31 Ala.App. 77

KABASE v. STATE.

6 Div. 991.

Alabama Court of Appeals

February 16, 1943

Rehearing Denied March 2, 1943.

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

Certiorari denied by Supreme Court in Kabase v. State, 12 So.2d 766. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

The following charge was refused to defendant: "E-3. Before the jury can convict defendant, they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendant's guilt that they would each venture to act upon that decision in matters of highest concern and importance to his own interest, then they must find the defendant not guilty."

These charges were given at the request of the State:

"9. The court further charges the jury that in whatever form the question of reasonable doubt may be couched, and however it may be twisted by words, a reasonable doubt is no more than a reasonable doubt, and that in considering the case you are not to go beyond the evidence to hunt up doubts, nor must you entertain such doubts as are merely imaginary or conjectural. A doubt to justify an acquittal must be reasonable. And it must arise from a candid and impartial investigation of all the evidence, you can say that you have a fixed conviction of the truth of this charge, you are satisfied beyond a reasonable doubt.

"10. The court charges you, Gentlemen of the jury, to prove beyond a reasonable doubt that the defendant is guilty does not mean that the State must make proof to a positive, absolute, mathematical certainty. This measure of proof is not required in any case. If, from all the evidence, the jury believe that it is possible, or that it may be, or perhaps the defendant is not guilty, this degree of uncertainty does not amount to a reasonable doubt, and does not entitle the defendant to an acquittal. All that is required is, that the jury should, from all the evidence, believe beyond a reasonable doubt that the defendant is guilty; and if you so believe, and it was in this county, and before the finding of this indictment, you should find the defendant guilty, although you may also believe from the evidence that it may be possible he is not guilty, or that it is possible that he is not guilty."

Beddow, Ray & Jones, Roderick Beddow, and M. C. Zanaty, all of Birmingham, for appellant.

Wm. N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

SIMPSON Judge.

The conviction was for rape. The punishment was twenty years imprisonment in the penitentiary.

This is a companion case of Ellis v. State, Ala.Sup., 11 So.2d 861. Ellis, at his trial, was convicted of the actual rape of the prosecutrix and received a punishment of twenty-five years imprisonment. It was not contended that this defendant, Kabase, harmed the young woman. The State urged his conviction upon the theory of a conspiracy existing between Ellis and this defendant, and that Kabase was an aider or abettor of Ellis in consummating the crime.

The law applicable to this phase of the case was finely exposited by our Presiding Judge in the recent case of Gandy v. State, 29 Ala.App. 485, 486, 198 So. 265, 266, where it was said: "The law as to this is, whether in fact the violence was done by one, or more than one; whether they [the defendant and his companions] went there with a common purpose to do violence, or to see it done, or to aid or encourage the doing of it, or to lend assistance should it become necessary * * *. So, if, being present with or without preconcert, they entered into a common illegal purpose, and one or more of them did the deed of violence, and the others were present, aiding, abetting, encouraging, sanctioning, or giving countenance to the unlawful act, or ready to lend assistance if it should become necessary, and the jury, by the proper measure of proof, find either one of these categories to be true, then if the actor or actors be found guilty, the others are also guilty." Also see Ellis v. State, where this statement of the principle was fully quoted, with approval, by our Supreme Court.

It is cogently argued by his able counsel that the defendant was due a directed verdict because of the insufficiency of the evidence to establish any guilty connection of Kabase with said crime, but it is our conclusion, after a careful consideration of the entire evidence, that this contention is untenable.

In testing the propriety of the court's refusal to give for a party (the defendant here) the general affirmative charge, the entire evidence must be viewed in its most favorable aspect for the adverse party (the State here) against whom it has been requested. Alabama Power Co. v. Gladden, 29 Ala.App. 438, 197 So. 374; 2 Alabama Digest, Appeal & Error, + 927(7).

It, of course, is well understood that such a charge is properly refused to the defendant in a criminal case if the evidence affords a substantial inference against him, Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am.St.Rep. 60, 10 Ann. Cas. 1126; Wilson v. State, 30 Ala.App. 126, 3 So.2d 136, 140; Barefield v. State, 30 Ala.App. 243, 5 So.2d 113, certiorari denied 242 Ala. 131, 5 So.2d 115; 6 Alabama Digest, Criminal Law, + 753(2); and this is true even though such evidence may be weak and inconclusive, Grimes v. State, 24 Ala.App. 378, 135 So. 652.

Likewise, a jury question is presented, and the affirmative charge properly denied, where conflicting inferences may reasonably be drawn from the evidence or where it contains conflicting tendencies. 18 Alabama Digest, Trial, + 142, 143; Harden, Inc., v. Harden, 29 Ala.App. 411, 197 So. 94.

Strict and impartial study of the State's evidence reveals that the question of guilt was properly submitted to the jury for determination. There were some inferences reasonably arising from the proven facts and circumstances tending to support the State's contention.

Expressive of our conclusion on this issue is the observation in Howard v. State, 108 Ala. 571, 576, 577, 18 So. 813, 815: "It is enough to say there was not that want of criminating evidence,-such want of evidence of every fact material to a conviction,-as required that the court should withdraw it from the consideration of the jury. The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive; but their probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant."

The affirmative charge for the defendant was correctly refused.

During the redirect examination of the prosecutrix, a pair of ladies' slippers-shoes (those of the alleged victim)-were produced by State's counsel, and defendant's attorney objected thereto, stating (among other things) as follows: "I want the record to show that * * * (state's counsel) asked if she wore those shoes out there, displaying a pair of women's shoes. * * * And we object to any showing or those shoes being brought in here and exhibited or displayed in the presence of the jury. They could be of no probative value, having nothing to do with the case either way, and they are not calculated or tend to prove or disprove anything in connection with the allegation of those things referred to in the indictment."

The court made no ruling as to this, but, after a colloquy between counsel and the explanatory argument of the deputy solicitor as to why the shoes were "material" (Record, p. 62), the said solicitor was then allowed to proceed, over due objection and exception of defendant, to exhibit the shoes to the jury, to question the prosecutrix elaborately regarding them, and to identify them as those worn by her on the night in question.

At each successive step in this interrogation, objections by the defendant were seasonably interposed thereto and exceptions duly reserved to the adverse rulings of the court.

It is strenuously argued that the foregoing interrogation and the production of the shoes as evidence, as above outlined, was error. Counsel's brief asserts: "This honorable court will note that these shoes were handled by the judge, the jury, and the solicitor, in the presence and hearing of the jury; they were not admissible under any phase of the testimony nor were they admissible as shedding any light on a disputed fact. The profert of the shoes was not calculated to prove or disprove anything."

Of course, unless the shoes tended to shed some light upon the inquiry at issue, they were inadmissible. Husch v. State, 211 Ala. 274, 100 So. 321; Moore v. State, Ala.App., 9 So.2d 146; Sikes v. State, 22 Ala.App. 33, 111 So. 760; Boyette v. State, 215 Ala. 472, 110 So. 812; Hyche v. State, 22 Ala.App. 176, 113 So. 644. It was not shown that the heels of the shoes were lost or kicked off in her alleged struggle with Ellis, nor, so far as appears from record, were the heels found at the scene, nor was it made to appear that the shoes were in any way otherwise damaged, and, under the rule of the foregoing cases, without some showing of relevancy, this evidence was improper. But we perceive a graver injury to the defendant than this.

The record discloses that, after the shoes had been duly identified by the prosecutrix and after they had been exhibited to the jury for their inspection, as above detailed, certain police officers (interested in the prosecution), before the conclusion of the trial, took the shoes away, so that they were not present and available during the argument of defendant's counsel to the jury.

This is the record, when...