Kilpatrick v. State

• Decision Date: 28 August 1973
• Docket Number: 8 Div. 233
• Citation: 51 Ala.App. 352,285 So.2d 516
• Parties: Albert KILPATRICK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 516

285 So.2d 516

51 Ala.App. 352

Albert KILPATRICK v. STATE.

8 Div. 233.

Court of Criminal Appeals of Alabama.

Aug. 28, 1973.

Rehearing Denied Sept. 25, 1973.

Hardwick & Edwards, Decatur, for appellant.

William J. Baxley, Atty. Gen., and J. Victor Price, Jr., Asst. Atty. Gen., for the State.

ELWOOD L. HOGAN, Circuit Judge.

The defendant in this cause was found guilty of rape and the Jury returned a verdict fixing his punishment at 20 years imprisonment in the state penitentiary. From the judgment and sentence pronounced by the Court, the defendant appealed.

I

It appears from the transcript of the record that on August 11, 1968, the prosecutrix, an elderly female invalid who had been a recent patient at the Bryce Hospital in Tuscaloosa for a number of years, was being cared for at the home of the defendant (her nephew) in Morgan County, Alabama. From the evidence in the record, it further appears that she had encountered a sexual experience with a male. The evidence is in conflict as to the defendant's presence at the time the sexual act was committed, one version placing the defendant near the bed of the prosecutrix shortly after she had been assaulted and another account being to the effect that the defendant was on his front porch in a drunken state when certain witnesses discovered the prosecutrix in bed in a condition indicating recent sexual intercourse.

The defendant entered a plea of not guilty and presented alibi evidence in his behalf indicating that he was not in his home at the time of the assault.

II

The defendant first contends that error was committed by the trial court in overruling the defendant's objection to a question eliciting testimony of an accusatory statement made in his presence. Portions of the testimony of Mrs. Marveline Burnett, witness for the State, follow:

'Q. All right, I will ask you this. If when Hazel came up to you all, did she walk up to the Defendant in his presence and make a statement to him?

'A. She first went into the house, I believe, and she come back out and she looked at Albert and she said--

'MR. POWELL: We object to what she said.

'THE COURT: If in the presence of--Was Albert there?

'A. Yes, Sir.

'THE COURT: Overruled.

'Q. Was it stated to Albert?

'A. Yes, Sir, it was stated to him.

'Q. All right, tell the Jury what it was?

'A. She looked at Albert and said, 'You son of a bitch, you have raped Aunt Grace again.'

'MR. POWELL: We object to this.

'THE COURT: What did you say?

'A. She looked at Albert and said, 'You son of a bitch, you have raped Aunt Grace again.'

'THE COURT: All right, now, the importance of that is only in what the reply was, if any, and the statement itself is allowed only to see the reaction of the defendant to it. So, what did he say or do?

'A. I believe he looked at her and said, 'You know I didn't do it.'

'Q. 'You know I didn't do it?'

'A. Or, 'You know I wouldn't do a thing like that.''

Under the implied admissions rule, sometimes referred to as the tacit admissions rule in other jurisdictions, statements tending to incriminate a defendant, made in his presence, understood by him, and being of such character and made under such circumstances as naturally would invite a reply or denial, where the defendant was so circumstanced that he should and could refute such statements come within the rule and the defendant's silence or omission to controvert or explain them renders such statements admissible in evidence. Scott v. State, 249 Ala. 304, 30 So.2d 689; Clark v. State, 240 Ala. 65, 197 So. 23; Bachelor v. State, 216 Ala. 356, 113 So. 67; Jackson v. State, 213 Ala. 143, 104 So. 220; Jackson v. State, 167 Ala. 44, 52 So. 835; Raymond v. State, 154 Ala. 1, 45 So. 895; Davis v. State, 131 Ala. 10, 31 So. 569; Abercrombie v. Allen, 29 Ala. 281; Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343; 80 A.L.R. 1235 et seq.; 115 A.L.R. 1510 et seq.

The rule of law relative to implied admissions here relied on by the defendant is not applicable as the witness testified that the defendant in response to the accusation made an immediate oral reply denying commission of the crime referred to in the accusatory statement. Thus, it appears that the accusation was understood by the defendant and was such as naturally would call for a reply or a denial if not true, and as affirmatively appears from the record, the defendant did in fact deny the commission of the crime referred to in the accusation made by the witness. Scott v. State, supra. Further, the overruling of the objection to the question seeking to elicit the accusatory statement, if error, was harmless error as the answers given were denials by the defendant and therefore favorable to the accused. 'But to have a reversal of judgment of conviction there must not only appear error, but such error as is prejudicial to the substantial rights of the party.' Mikell v. State, 242 Ala. 298, 5 So.2d 825; Supreme Court Rules, Rule 45. No such error here appears. Further, as was set out in Kiel v. State, 236 Ala. 585, 184 So. 210, 'Everything said and done by any of the parties relating to the crime and tending to elucidate the action of the parties, and springing out of the transaction while the parties were still laboring under the excitement and strain of the circumstances, and at a time so near it as to preclude the idea of deliberation and fabrication, is a part of the res gestae.' Durden v. State, 18 Ala.App. 498, 93 So. 342; Lancaster v. State, 21 Ala.App. 140, 106 So. 609; Cline v. State, 25 Ala.App. 433, 148 So. 172; Largin v. State, 20 Ala.App. 610, 104 So. 556; Newsom v. State, 15 Ala.App. 43, 72 So. 579.

III

The same argument and contention as above is made on behalf of the defendant in reference to the testimony elicited by the State's witness, Mr. Hollis Adams. Portions of the testimony of Mr. Hollis Adams on direct examination by the District Attorney follows:

'Q. All right, did Hazel go in and look at Aunt Grace? Did she go in the house?

'A. Yes, Sir.

'Q. Did she come back out to where Albert was?

'A. Yes, Sir.

'Q. Did she walk up to him and say something?

'A. Yes, Sir.

'Q. What did she say?

'MR. POWELL: We object.

'THE COURT: I will overrule it, but I want to caution the Jury that what somebody else says is not to be held against a person and you must not hold this against the Defendant. It's only the reaction of the Defendant to be accused of something is evidence in the case, but in order to let you understand what that reaction is, we have to let you know what the statement was. Overrule it.

'A. First words Hazel said, 'Albert, you son of a bitch, you have raped Aunt Grace again,' and Albert mumbled he didn't do no such thing.

'Q. Said he didn't do no such thing?

'A. Yes, Sir, and he looked up and he said, 'Do you think I would do something like that,' and I said, 'No, I don't think anybody would.'"

The witness, Hollis Adams after testifying as to the accusatory statement made in the presence of the defendant over the objection of defense counsel, then stated that the defendant denied the accusation of the commission of the crime. In this instance, the defendant argues two aspects of error. Under the reasoning heretofore set forth pursuant to the accusatory statement elicited by the witness, Marveline Burnett, error was not committed by the Court as the implied admissions rule is not applicable and said testimony was part of the res gestae. Accordingly, the cases posited on this theory do not apply. Scott v. State, supra; Clark v. State, supra; Raymond v. State, supra.

The second aspect complained of as error is to the effect that the accusatory statement testified to by the witness, Marveline Burnett was allowed to be repeated, over objection, by the witness, Hollis Adams. Hollis Adams reiterated the testimony of Mrs. Burnett when he testified that the defendant's wife approached the defendant and made the following statement, 'Albert, you son of a bitch, you have raped Aunt Grace again.' The defense contends that said repetition was prejudicial to the point of being reversible error grounded on the theory that 'it could not have been eradicated from the minds of the jurors.' We hold otherwise and find the accusatory statement to be a part of the res gestae made in the presence and hearing of the accused. Likewise, this same conclusion would extend to the argument that it was error to reversal to admit the above referred to accusatory statement on Two separate occasions. Scott v. State, supra; Mikell v. State, supra; Supreme Court Rules, Rule 45, supra; Kiel v. State, supra.

IV

Next, the defendant contends the court erred in allowing the witness, Marveline Burnett to testify over objection, accusing the defendant of Again (emphasis added) committing the crime for which he is charged in the indictment as set out above. In criminal prosecutions, evidence of other separate and distinct criminal acts is not admissible since only facts to be laid before the jury should consist exclusively of the transaction which formed the subject of the indictment, which alone the defendant is called upon to answer. Patrick v. State, 39 Ala.App. 240, 97 So.2d 589; Ingram v. State, 39 Ala. 247; Gassenheimer v. State, 52 Ala. 313; Johnson v. State, 242 Ala. 278, 5 So.2d 632. This rule prevails unless it falls under one or more of the recognized exceptions. Hinton v. State, 280 Ala. 48, 189 So.2d 849.

In Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847, the Court held that the State is not permitted to give in evidence other crimes alleged to have been committed by the defendant unless they are so connected by circumstances with the particular crime charged as that proof of one fact with its circumstances has some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged. And as was stated in Ingram v. State,supra, 'Among the exceptions to the so-called rule of exclusion,...