Kennedy v. State
Decision Date | 02 December 1958 |
Docket Number | 8 Div. 398 |
Citation | 39 Ala.App. 676,107 So.2d 913 |
Parties | Leonard KENNEDY v. STATE. |
Court | Alabama Court of Appeals |
Pilcher & Floyd, Gadsden, for appellant.
John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State.
Leonard Kennedy was tried to a jury in the Marshall County Circuit Court on a consolidated case involving four distinct charges: (1) possessing prohibited liquors (Code 1940, T. 29, § 98); (2) resisting an officer of the law while acting in the line of duty (Code 1940, T. 14, § 402); (3) leaving the scene of an accident involving the automobile driven by him without stopping to give his name, address, etc. (Act No. 427, approved July 9, 1945, Gen.Laws 1945, p. 670); and (4) driving a motor vehicle while under the influence of an intoxicating liquor (T. 36, § 2, as amended).
Kennedy stands convicted of the first three charges and has appealed from the separate and several judgments adjudicating him guilty of those offenses.
The case made out by the State is as follows:
On the night of July 3, 1957, the high sheriff on Marshall County, along with two of his deputies, were in a parked car on a rural road near the intersection of another thoroughfare when an Oldsmobile driven by Kennedy came around a curve too far toward the outside and sideswiped the sheriff's car.
Kennedy stopped some sixty yards down the road, had his car door open and one foot on the ground as though to get out when, looking back, he evidently recognized the deputy, Mr. I. E. Massey, who said, 'Hold it Leonard.' Whereupon, Kennedy drove off.
The deputy shot at the tires of Kennedy's car. While we cannot approve this conduct in the face of a misdemeanor violation, it has no bearing on our consideration of this case, since to give it effect to justify any action on Kennedy's part would be merely allowing two wrongs to make a right. Moreover, upon a grand jury indictment leaving the scene of an accident in violation of the 1945 Act, supra, may be punished either as a misdemeanor or as a felony.
The other deputy turned the sheriff's car around and the party proceeded to chase Kennedy some four or five miles through the countryside. At one point, Kennedy was observed opening the door on the right-hand side of his car whereupon a container fell from his car. The chase continued until Kennedy suddenly slammed on his brakes, attempted to make a left turn into a narrow lane, and the sheriff's automobile ran into the rear of the Oldsmobile.
The sheriff then got out and told Kennedy he was under arrest. With that, Kennedy commenced fighting the sheriff, and the two deputies came to his assistance. The three succeeded in subduing the obdurate Kennedy in short order.
A return along the route of flight disclosed that the cardboard carton which fell out of Kennedy's car during the chase contained several pints of whiskey and at least one pint of vodka.
One of the deputies, Hubert Hipp, testified as follows:
'Mr. Floyd: We object to that.
'The Court: Overrule.
'Mr. Floyd: We except to it.
'Mr. Moore: When a man is accused of a crime and sometimes silence----
'The Court: I have overruled the objection.
'Mr. Floyd: We except and we object to that.
The maxim, 'He who is silent gives the appearance of consent,' is, analytically, merely a description of the defendant's reaction to an accusation.
A statement to which a man does not reply is not any evidnce of the facts stated--the evidentiary fact is his conduct as he hears the statement. The admissibility of testimony of silence derives from the general principles of evidence--not being confined to criminal cases. It stems from the doctrine of implied admissions. See also Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509. Wigmore mentions it as circumstantial evidence, § 292 (3rd Ed.). In the same work we find in § 1071:
--citing inter alia Raymond v. State, 154 Ala. 1, 45 So. 895, and contra Anderson v. State, 171 Miss. 41, 156 So. 645.
The ratio decidendi of the Raymond case, supra, is that the State may show (1) the hearsay accusatory statement, and then (2) the defendant's taciturn demeanor rather than vice versa being the required order of proof.
Though silence of the accused at a formal trial (or on commitment) cannot be used, e. g., Jones v. State, 30 Ala.App. 360, 6 So.2d 26; Moore v. State, 261 Ala. 578, 75 So.2d 135, yet, in other circumstances, where it would be one's duty or nature to speak and there is an opportunity to speak, silence is evidence, though slight in weight, Johnson v. State, 17 Ala. 618; Scott v. State, 249 Ala. 304, 30 So.2d 689.
The demeanor of the party must be such as to show an adoption of the adverse statement, e. g., Hill v. Bishop, 2 Ala. 320, where an estimate by a prospective tenant (before leasing) as to the cost of certain repairs made in the presence of the plaintiff-landlord could not go to the jury--'for it cannot be considered as an admission of their value.'
'Silence, in the absence of a duty to speak, is not an admission,' Jackson v. United States, 5 Cir., 250 F.2d 897, 900, a case where an F. B. I. agent had warned the defendant that whatever she said might be used against her. 1 See also Helton v. United States, 5 Cir., 221 F.2d 338 ( ).
The enquiry as to whether or not a defendant's demeanor or conduct denotes acquiescence is for the jury. Thus, in Hicks v. Lawson, 39 Ala. 90, at page 93, the reporter, in relating the case at nisi prius, states that:
'* * * The court overruled the objection of the defendant to the answer of said witness to said 8th interrogatory, and permitted the plaintiff to read said answer in evidence to the jury; but distinctly stated to the jury, at the same time, that they must not allow any weight or effect whatever to said answer, unless they were convinced from the whole evidence in the cause, in the first place, that the said statement of the said witness was in fact made to the defendant, and that it was made under such circumstances, and was of such a character as naturally called for a reply from him, and that the defendant was at the time in such a situation that he would probably respond to it, and that he did not respond to it; * * *'
The opinion expressly approved this practice.
The weight to be attached to the circumstance of silence ought not to be charged to the jury as the equivalent of a confession--certainly in such a stark form as that held bad in Campbell v. State, 55 Ala. 80. See also Scott v. State, supra.
Whether or not the accused could hear and understand the accusation is generally a jury issue, Martin v. State, 39 Ala. 523; Vaughn v. State, 130 Ala. 18, 30 So. 669.
Here Kennedy was in the sheriff's car in the company of Hipp and the sheriff when confronted with the case of jettisoned liquor. We think, since he is accorded the right of cross-examination, he bore the burden of persuading the jury that the officers spoke too low or that he was deaf, drunk, or otherwise hindered from knowing what they said.
Moreover, other principles of admissibility lie in the factual environs of Kennedy's being confronted with the liquor. First, there was no proof until then as to what was in the box; and, while the corpus delicti of the possession existed beforehand the ascertainment of what the box had in it partook of the res gestae. The purported disappointment of the defendant that all the bottles had neither become lost nor shattered had probative value. We distinguish Tillison v. State, 248 Ala. 199, 27 So.2d 43, and consider this event took place within the scope of the exception of the quoted excerpt from 22 C.J.S. Criminal Law § 667.
Thus, describing rather than defining res gestae (which strictly does not admit of a concise, settled meaning), we find Thomas, J., in Sexton v. State, 239 Ala. 287, 196 So. 744, 745, saying:
* * *'
And the opinion quotes the following as the classic definition:
'* * * 'Whenever any act may be proved, statements accompanying and explaining that act made by or to the person doing it may be proved if they are necessary to understand it.' * * *'
Second, the defendant's attitude toward the offense is shown: the State may bring out his demeanor before or after the crime (though he himself may be generally confined only to proof of the res gestae), Campbell v. State, 23 Ala. 44; Willingham v. State, 261 Ala. 454, 74 So.2d 241. Nor does this principle seem confined to homicide cases, vide Rountree v. State, 20 Ala.App. 225, 101 So. 325; Wilson v. State, 31...
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