Kennedy v. State
| Decision Date | 10 May 1973 |
| Citation | 277 So.2d 878,291 Ala. 62 |
| Parties | Lamarrison KENNEDY, alias Lamorrison Kennedy v. STATE of Alabama. SC 303. |
| Court | Alabama Supreme Court |
Donald E. Brutkiewicz, Mobile, for appellant.
William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
This case was transferred to the Supreme Court from the Court of Criminal Appeals on March 26, 1973.
Lamarrison Kennedy, alias Lamorrison Kennedy, was convicted of robbery and sentenced to ten years in the penitentiary. Kennedy and an unidentified accomplice were alleged to have robbed a convenience store in Prichard, Alabama, on February 10, 1972. The two employees of the store and several police officers were called as witnesses for the state. The defense presented no witnesses in his behalf.
Appellant first alleges error in that the trial court improperly refused to allow the defense to have a separation agreement 1 marked as an exhibit for identification. Appellant also contends that the trial court erred in refusing defendant's motion for a mistrial for that a separation agreement was signed by the defendant and his attorney in the presence of the jury in violation of Title 30, § 97(1), Code of Alabama 1940 (Recompiled 1958).
We are unable to agree with either of appellant's contentions. The separation agreement is part of the record proper on appeal and is before this Court. The trial court did not err in refusing to allow it to be marked as an exhibit for identification. The purpose and intent of Title 30, § 97(1) is twofold: (1) to prevent the defendant from being prejudiced by the jury's knowledge that he has refused to consent to their separation; and (2) to prevent the jury from showing undue favoritism to a defendant by reason of knowledge that he has consented to their separation. We have searched the record carefully and can find no evidence that the jury Heard anything to indicate whether the defendant agreed or refused to agree to their separation. The above statute does not prohibit the mere signing of a separation agreement in open court. Segers v. State, 283 Ala. 682, 220 So.2d 848.
Appellant alleges error in the refusal of the trial court to give certain written charges requested by the defendant.
Defendant's requested charge number one (1) which was refused is as follows:
'The Court charges the Jury that if they believe that any material part of the evidence of the witness Dixon is wilfully false, you may disregard his entire testimony, and should you do so, this defendant must be acquitted.'
It was proper for the trial court to refuse the above charge because it pretermitted corroboration of the named witness by other evidence. Hamilton v. State, 147 Ala. 110, 41 So. 940; Turner v. State, 43 Ala.App. 42, 179 So.2d 170.
Defendant's requested charges numbered 2, 5, 6, 8, 10 and 11 were properly refused by the trial court because the principles of law expressed therein were substantially covered in the trial court's oral charge to the jury. Gautney v. State, 284 Ala. 82, 222 So.2d 175; Kemp v. State, 278 Ala. 637, 179 So.2d 762. Defendant's requested charges numbered 3, 4, 9, and 13 are substantially the same and will be considered together. Charge 4 is illustrative of this group of charges and reads as follows:
'The court charges the Jury that, if the evidence convinces you that Dixon is a man of bad character, and unworthy of belief, then you may disregard his evidence altogether.'
This charge was held good in the case of Prater v. State, 107 Ala. 26, 18 So. 238. Several subsequent cases have considered similar charges but most of these included the additional words 'unless corroborated by testimony not so impeached'. Seawright v. State, 160 Ala. 33, 49 So. 325; Wynne v. State, 155 Ala. 99, 46 So. 459; Clayton v. State, 23 Ala.App. 150, 123 So. 250. At first glance these additional words, and the fact that the Prater case appears to have involved only one witness for the State, seem to give significance to the 'corroboration clause' in the later and multi-witness cases. After a more careful analysis, however, we are at the conclusion that such additional words are merely coincidental and not essential to the validity of such a charge. We do not interpret the rationale of Prater as having been dependent upon a single witness situation. By requesting these four charges, the defendant was rightfully asking the trial court to instruct the jury that they May disregard the testimony of an impeached witness. This they May do whether his testimony is corroborated by other witnesses or not. Each of the defendant's requested charges here considered were correct statements of law and should have been given.
Having determined that the trial court improperly refused charges 3, 4, 9, and 13, we now consider them in light of Supreme Court Rule 45 to decide if such error requires a reversal of this cause. Rule 45 is as follows:
'Hereafter no judgment may be reversed or set aside, nor new trial granted by this court or by any other court of this state, in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.'
It is well established that under Rule 45 an appellant must not only show error but must also demonstrate that such error was probably injurious. State v. Hodge, 280 Ala. 422, 194 So.2d 827; Kabase v. State, 244 Ala. 182, 12 So.2d 766. This Court has held that the refusal to give a correct requested written charge does not per se import injury and we are authorized to reverse only when the error complained of 'has probably injuriously affected substantial rights of the parties', and this is to be determined only 'after an examination of the entire cause'. Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838; Turner v. State, 238 Ala. 352, 191 So. 396.
In the instant case we have a defendant charged with robbery. One of the State's witnesses, Dixon, was the manager of the store which the defendant allegedly robbed. On cross examination defense counsel attempted to impeach Dixon by showing that he had previously been convicted of crimes involving moral turpitude. The requested charges now under consideration were obviously intended to inform the jury that, because of Dixon's prior convictions, his testimony could be disregarded if the jury chose not to believe him. To determine if their refusal was probably prejudicial to the defendant, we must examine what other...
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Wright v. State
...involving moral turpitude does not automatically constitute evidence of bad character. In a special concurrence in Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973), Justice Bloodworth was of the opinion that a conviction of a crime of moral turpitude is not per se evidence of bad charact......
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...jury charge, its refusal was not error because Ms. Hunter's testimony in all material aspects, was fully corroborated. Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Johnson v. State, 349 So.2d 110 (Ala.Cr.App.), cert. denied, 349 So.2d 113 The trial court properly refused the defenda......
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Gaddy v. State
...that it "must" perform in arriving at its verdict). See also Gurley v. State, 337 So.2d 97 (Ala.Cr.App.1976); Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973). The appellant further argues that the trial court erred by not charging the jury as to the first statutory mitigating factor, i.......
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Page v. State
...Rule 45 and appellant must not only show error, but must also demonstrate that such error was probably injurious. Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Kabase v. State, 244 Ala. 182, 12 So.2d 766 (1943). We are authorized to reverse only when the error complained of has proba......