Kelley v. State

• Citation: 32 Ala.App. 408,26 So.2d 633
• Decision Date: 11 June 1946
• Docket Number: 6 Div. 254.
• Parties: KELLEY v. STATE.
• Court: Alabama Court of Appeals

26 So.2d 633

32 Ala.App. 408

KELLEY v. STATE.

6 Div. 254.

Alabama Court of Appeals

June 11, 1946

W C. Rayburn, of Guntersville, for appellant.

Wm. N. McQueen, Atty. Gen., and Bernard F Sykes, Atty. Gen., for the state.

The following charges were refused to defendant.

'4. I charge you Gentlemen of the jury that if you are not satsified beyond all reasonable doubt, to a moral certainty and to the exclusion of every other reasonable hypothesis but that of defendant's guilt, you should find him not guilty, and it is not necessary, to raise a reasonable doubt that the jury should find a probability of defendant's innocence of the offense charged against him but such doubt may arise even where there is a probability of his innocence in the testimony; and if you have not an abiding conviction to a moral certainty of his guilt you should acquit him of the offense charged against him.'

'6. I charge you Gentlemen of the jury that the defendant cannot be convicted of the offense charged against him unless the evidence against him excludes to a moral certainty every hypothesis or supposition but that of his guilt.'

'10. I charge you Gentlemen of the jury that a doubt to justify an acquittal if it be such as to cause a reasonable and prudent man to hesitate and pause in the graver transactions of life.

'11. I charge you Gentlemen of the jury that if you are reasonably satisfied from all the evidence in this case that witness J. E. Cummings has exhibited prejudice and bias against the defendant you may disregard his entire testimony.' CARR, Judge.

Appellant was tried and convicted on an indictment charging incest. Title 14, Sec. 325, Code 1940. The prosecutrix was fourteen years of age at the time of the alleged offense. She testified that her father, the appellant, had sexual intercourse with her on several occasions. The defendant denied the accusation. The young lady being under the age of consent, it was not necessary that her testimony be corroborated as provided in Title 15, Sec. 307, Code 1940. Duncan v. State, 20 Ala.App. 209, 101 So. 472.

The record recites:

'The striking of the jury was started while the defendant was in the witness room; six jurors were struck for the State and ten for the defendant before it was called to the attention of the Court by defendant's counsel that defendant was not in the court room when the case was called and the striking of the jury commenced.

'Defendant's counsel moved the Court to enter a continuance of the case because of the fact that the defendant was not present in the court room when the trial of the case was begun and the striking of the jury commenced. The Court declined to grant a continuance, and ordered that the parties strike the jury over, with the defendant in the presence of the Court.

'Defendant reserved an exception to the ruling of the Court.'

We are in hearty agreement with the insistence of appellant's counsel that it is a right accorded all who are accused of crime to be personally present at all important stages of trial. In the instant case, however, we cannot hold that these rights were violated. Under the authority of Gable et al v. State, 31 Ala.App. 280, 15 So.2d 594, certiorari denied 245 Ala. 53, 15 So.2d 600, we conclude that there was no error to reverse here.

During the progress of the trial numerous objections were interposed while the testimony was being taken. In many instances the rulings of the trial judge were against the position of the defendant. We have carefully noted each of these objections, and we find in many cases appellant's counsel did not reserve exceptions to the court's rulings. In several others we find that objections were interposed after the answers were given. We will not review these. York v. State, 21 Ala.App. 155, 106 So. 797.

On direct examination the prosecutrix was asked: 'On this occasion was this the night you left after he had gotten through, and went up to Mr. George Nelson's?' After the court had overruled the objection, there was no answer. The inquiry was then abandoned. Clearly, no harm inured to appellant. Minto v. State, 8 Ala.App. 306, 62 So. 376.

This question was addressed to the young lady: 'Now, how did you manage to get away from your father?' To which she replied: 'I told him that I wanted to go and get a drink of water.' Appellant's counsel waited until she had answered and then moved the court to exclude the answer. What the witness said was responsive to the question. The rule does not permit counsel to speculate on a reply to a question and then move to exclude it if it is responsive. Robinson v. State, 8 Ala.App. 435, 62 So. 372.

To the same witness this question was propounded: 'When you went to Mr. George Nelson's did you state to Mr. Nelson or anybody else that you had been assaulted?' Objections of appellant's counsel were overruled and an exception was reserved. The reply was: 'Yes, sir.' The question did not call for the details of the assault. The rule permitted proof that the witness made complaint to Mr. Nelson. It appears that this is all the question sought to elicit. Mickle v. State, 226 Ala. 616, 148 So. 319; Ellis v. State, 244 Ala. 79, 11 So.2d 861.

While the prosecutrix was being cross examined, the record discloses:

'(Mr. Long speaks to witness privately.)

'Mr. Rayburn: We object to the solicitor interviewing this little witness; they were, they had her in the room before she came on the stand.

'The Court: Overrule the objection.

'Mr. Rayburn: We except.' We cannot approve this interruption of the orderly procedure of the trial. The solicitor should have delayed his interview with the witness until the cross examination had ended. We have quoted the record as it reflects this incident and it does not there appear that the occurrence was of much magnitude or significance. Be this as it may, the trial judge observed the event. His judicial eye prompted him to rule as indicated, and we will not hold that he overstepped his discretionary bounds. Dennison v. State, 17 Ala.App. 674, 88 So. 211.

It appears from the evidence that prior to the initial institution of the instant charge, the defendant had been confronted with a non-support proceeding against him. While it is not entirely clear, we take it that this was upon the complaint of his wife. The lower court disallowed, at the instance of appellant, the introduction of the affidavit and warrant in the non-support proceedings. The asserted purpose of this tender was to identify its date. The appellant's wife was not a witness in the case at bar. It was not made to appear by the evidence that any witness who did testify had any connection with or participation in the non-support charge. The date of its inception, therefore, became a matter of immaterial inquiry.

On cross examination the prosecutrix was asked: 'Why did you wait till March the 7th to swear out this warrant?' Over objections of the solicitor the court did not require an answer. We will not charge error here. It was open to the jury to draw its own conclusions relative to the delay. Southern Amusement Corp. v. Summers, 23 Ala.App. 595, 129 So. 489; Brooks v. State, 185 Ala. 1, 64 So. 295.

The appellant was interrogated as follows: 'I'll ask you to tell the jury what was said by your wife and the little girl about this insurance money that you get from your son.' The court sustained the objection to 'what was said by your wife.' As indicated above appellant's wife did not testify in the case. The question as framed included an inquiry that was clearly inadmissible. The ruling was, therefore, correct. Borden & Co. v. Vinegar Bend Lumber Co., 7 Ala.App. 335, 62 So. 245.

In rebuttal the State introduced some evidence that should have...