McGhee v. State, 6 Div. 834

• Decision Date: 29 June 1962
• Docket Number: 6 Div. 834
• Court: Alabama Court of Appeals
• Parties: Samuel Bernard McGHEE v. STATE.

Page 1

149 So.2d 1

41 Ala.App. 669

Samuel Bernard McGHEE v. STATE.

6 Div. 834.

Court of Appeals of Alabama.

June 29, 1962.

Rehearing Denied Oct. 16, 1962.

Douglas Hendrix, Tuscaloosa, for appellant.

MacDonald Gallion, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

The appellant stands convicted of robbery.

The state's evidence tended to show that about 11 A.M. on January 5, 1961, as Richard The evidence introduced by the defendant tended to show that he, Price and Snead came to Tuscaloosa about 10:30 on January 5th, and drove to McKenzie Courts to see a girl friend of Price's. The girl was not at home and they drove down 32nd Avenue to 15th Street. The car needed oil and they parked next to the Shady Corner Service and began matching cards to see who would pay for it.

H. Harris was walking along 15th Street in Tuscaloosa, defendant called to him from a pink Cadillac and offered him a ride. Defendant, with one Snead, was sitting in the back seat. Frank Price was the driver of the car. Harris got in the automobile and Price drove around for a few minutes and stopped on 37th Avenue within fifty yards of 15th Street. When the automobile stopped Snead pulled out his knife, demanded Harris' money and obtained from him the sum of $75.00. Harris then got out of the car, walked to a phone booth, in front of a cafe called the Tiger Grill, and called the police. Defendant, Price and Snead were arrested in Tuscaloosa on January 19, 1961, and were identified by Harris from a police lineup as the persons who robbed him.

Richard Harris came up and asked to be allowed to play cards with them. They had played cards for a few minutes when Harris said a man was looking at him and asked them to drive to another location. They drove to a point on 37th Avenue near the Tiger Grill where they played cards 35 to 45 minutes until Harris lost his money and left the game. Harris entered the game voluntarily and was not robbed of his money.

In rebuttal Harris denied that he had played cards with the boys in the automobile.

Defendant, Price, Snead and Harris were Negroes. Harris was a Minister. Snead testified as a witness for defendant. During his direct examination he stated that after they began playing cards Harris told them his name and defendant and Harris discussed mutual acquaintances. 'Mr. Harris told him he was a big man around here, he has been a big man around here a number of years, he was a member of the NAACP and anything like that.' The witness was asked on cross-examination, 'Are you a member of the NAACP?' Defendant's objection was overruled. The question was not answered.

During the cross-examination of defendant he was asked, without objection, if Harris mentioned that he held membership in any organizations. Defendant answered that after a man came out of the service station he suggested they move, and Harris said, 'Yes, we better move, because I don't want any trouble with the police, because, you know, I am a member of that old NAACP.' Thereupon, defendant was asked, 'Are you a member of the NAACP?' Objection to the question was overruled, and defendant answered, 'No, sir.' He was then asked; 'Was there anything said about Margaret Holloway belonging to the NAACP?' Counsel's onjection to this question was overruled, but the question was never answered.

It is insisted that testimony concerning the NAACP was immaterial and was calculated to prejudice the minds of the jurors against the defendant, and that the trial court committed reversible error in overruling objections to questions asked defendant and Snead concerning their membership and that of Margaret Holloway in that organization. We find no merit in this contention. It will be noted that the NAACP was first injected into the evidence by the defendant's witness Snead. Moreover, the overruling of an objection to a question which is not answered, or is answered in the negative, is not prejudicial error. Holmes v. State, 35 Ala.App. 585, 50 So.2d 800; Strickland v. State, 269 Ala. 573; 114 So.2d 407; McGee v. State, 25 Ala.App. 232, 144 So. 112; Leonard v. State, 36 Ala.App. 397, 58 So.2d 138; Kennedy v. State, 39 Ala.App. 676, 107 So.2d 913.

During the redirect examination of Emanuel Snead, witness for defendant, the following occurred:

'Q. Snead, are you under any charges growing out of this thing at this time?

'A. No, sir.

'Q. What became of your case?

'A. Well, the jury found me not guilty.

'MR. WARD: Come down.

'THE WITNESS: A month ago.

'MR. NICOL: Just a minute.'

RECROSS EXAMINATION

'BY MR. NICOL Q. I will ask you, if, in fact, you did not testify when the jury found Price guilty and assessed a punishment of 10 years imprisonment, you know about that, too, don't you?'

Defendant objected and the court overruled the objection. Thereupon defendant made a motion for a mistrial, which was overruled.

That Snead had been acquitted and Price convicted for the same offense for which the accused was on trial was immaterial, irrelevant and inadmissible. Lowery v. State, 21 Ala.App. 352, 108 So. 351; Evans v. State, 39 Ala.App. 498, 105 So.2d 831; Lane v. State, 40 Ala.App. 174, 109 So.2d 758. The general rule is that the defendant, having introduced illegal evidence in chief cannot predicate error upon the admission of illegal evidence in rebuttal. Morgan v. State, 88 Ala. 223, 6 So. 761; Winslow v. State, 92 Ala. 78, 9 So. 728; Chastain v. State, 36 Ala.App. 186, 54 So.2d 623.

We pretermit a consideration of the court's ruling admitting the evidence complained of here, since the cause must be reversed on another point, and the question is not likely to arise in the event of another trial.

The prosecuting witness, Harris, testified he had been a Minister of the Gospel for thirty years. During his closing argument to the jury the solicitor said: 'I know this man of God told you the truth, he is on God's side, gentlemen, and God is on his.' The defendant's objection to this argument was overruled.

Counsel may argue to the jury the credibility of witnesses as long as he confines his argument to the evidence and the fair inferences to be drawn therefrom, but he may not go beyond the evidence and state as fact his personal knowledge as to the truthfulness or untruthfulness of the testimony of a witness. See 6A Ala. Digest Criminal Law k719(1) for cases.

The statement of the solicitor was unsupported by the evidence, invasive of the jury's province and was calculated to prejudice the substantial rights of the defendant. The objection should have been sustained.

Hammock v. State, 7 Ala.App. 112, 61 So. 471; Hammock v. State, 8 Ala.App. 367, 62 So. 322; Woods v. State, 19 Ala.App. 299, 97 So. 179. See also People v. Stratton, 286 App.Div. 323, 143 N.Y.S.2d 362, affirmed 1 N.Y.2d 664, 150 N.Y.S.2d 29, 133 N.E.2d 516; Hickerson v. State, 162 Tex. Cr.R. 446, 286 S.W.2d 437; Harper v. State, 94 Okl.Cr. 371, 236 P.2d 272.

Other matters argued as error are not likely to arise on another trial and will not be discussed. For the error pointed out, the judgment appealed from is reversed.

Reversed and remanded.

ON REHEARING.

Rehearing denied.

JOHNSON, Judge (dissenting).

After reconsideration, I most respectfully dissent from the order overruling the application for rehearing in this cause and render the following opinion which would affirm the proceedings and judgment by the Circuit Court of Tuscaloosa County, Alabama.

I accept as correct the basic facts constituting this crime as stated by this court in the opinion issued on June 29, 1962. The testimony is, without contradiction, that the witness, Richard H. Harris, otherwise referred to in the record as 'Reverend', who was the victim of the robbery, was seventy years of age and for forty-seven years had resided in the same community which was four miles from Tuscaloosa, Alabama, and had for thirty years been a minister of the gospel in Tuscaloosa, Alabama. The reputation of this prosecuting witness for truth and veracity was not assailed, and it was not only the right, but...