Lyons v. State

• Court: Alabama Court of Appeals
• Writing for the Court: BRICKEN, Presiding Judge.
• Citation: Lyons v. State, 32 Ala.App. 44, 21 So.2d 339 (Ala. App. 1945)
• Decision Date: 13 March 1945
• Docket Number: 8 Div. 447.
• Parties: LYONS v. STATE.

21 So.2d 339

32 Ala.App. 44

LYONS v. STATE.

8 Div. 447.

Alabama Court of Appeals

March 13, 1945

Russell W. Lynne, of Decatur, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Chas. W. Cooper, Asst Atty. Gen., for the State.

BRICKEN Presiding Judge.

This prosecution was based upon affidavit of W. T. Willoughby shown by the record to be the Sheriff of Morgan County. It charged appellant with vagrancy, and the trial resulted in her conviction. From the judgment pronounced and entered, this appeal was taken.

The court overruled defendant's motion to require the State to elect as to which of the sub-heads of the statute relating to vagrancy it was relying upon for a conviction. However, from the testimony it appears it was relying on Subsection 10 of Section 437, Title 14, Code of Alabama 1940, which provides: 'Any person who is a keeper, proprietor or employee of a house of prostitution.' There appears also some attempt upon the part of the State to convict under Sub-section 4 of the above Statute, viz: 'Any person trading or bartering stolen property, or who unlawfully sells or barters any spirituous, vinous, or malt or other intoxicating liquors.'

The settled rule of evidence, and its allowable scope, relative to the above two offenses, has been repeatedly declared in numerous decisions of the appellate courts of this State.

In a prosecution for violation of Sub-section 10 of the statute, supra, it is not permissible to offer testimony as to the character or reputation of the house involved. As far back as the year of 1877, the Supreme Court of Alabama said, as to this, in the case of Sparks v. State, 59 Ala. 82: 'But it was not permissible to prove that the reputation of the house, was that of a house of ill-fame. * * * Nor is the opinion of witnesses that the house is a bawdy-house, or a nuisance, admissible as evidence.'

In Toney v. State, 60 Ala. 97, where the defendant was charged by indictment with keeping, etc., a bawdyhouse, the court also said: 'In no aspect of the case, was it permissible to give evidence of the reputation of the house in which the defendant lived.' See also Wooster v. State, 55 Ala. 217 (3rd Hd. note).

In our case of Wilson v. State, 17 Ala.App. 307, 84 So. 783, this court said: 'There was also error in the rulings of the court in permitting each of the state witnesses to testify, over the timely objection of the defendant, that the house in question was a house of prostitution. This was clearly an invasion of the province of the jury it being one of the material issues of the case for the jury to decide from all the facts and circumstances. This testimony was the expression of the opinion of the witnesses and a mere conclusion upon their part.'

We refer also to the case of Nelson v. State, 24 Ala.App. 245, 133 So. 747, as being conclusive of several questions involved on this appeal. We do not deem it necessary to cite other authorities of like import. The trial court committed innumerable errors in its rulings upon the evidence; not only by allowing each of the three State witnesses to testify repeatedly in defiance to the rule of evidence above discussed; but also, in permitting them to testify they had upon several occasions, before and also after the commencement of this prosecution arrested the defendant. There are certain conditions under the law where evidence may be adduced to show that a witness or the defendant upon trial, when testifying as a witness in his own behalf, had formerly been convicted of crime, if such crime involved moral turpitude. Section 434, Title 7, Code of Alabama, 1940; this for the purpose of affecting the credibility of the witness. But there has never been any rule of evidence, or any law, to permit the State, as here appears, to offer evidence to the effect that the defendant had been formerly arrested by the State's witnesses, which of necessity would tend to cast undue opprobrium upon the accused, who in this case never offered himself as a witness. There is a wide distinction between the words arrest and conviction. Arrests may be unduly made by active and overzealous peace officers; or by biased and prejudiced officers.

In our case of Wilson v. State, 20 Ala.App. 137, 101 So 417, 420, the arresting officer, among other things, testified that she, the defendant, has been...