Nelson v. State

• Court: Alabama Court of Appeals
• Writing for the Court: HARWOOD
• Citation: Nelson v. State, 35 Ala.App. 179, 44 So.2d 802 (Ala. App. 1950)
• Decision Date: 28 February 1950
• Docket Number: 7 Div. 973
• Parties: NELSON v. STATE.

Page 802

44 So.2d 802

35 Ala.App. 179

NELSON v. STATE.

7 Div. 973.

Court of Appeals of Alabama.

Feb. 28, 1950.

Roberts & Cunningham, of Gadsden, for appellant.

A. A. Carmichael, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for the State.

HARWOOD, Judge.

The indictment against this appellant contained two counts, the first count charging assault with intent to murder, the second count charging assault with intent to rob.

The verdict returned by the jury found appellant guilty of assault with intent to rob, under count 2 of the indictment.

The evidence presented by the State tended to show that about 9:30 on the night of 5 February 1948, Mr. Benton Pierce, Manager of the Gadsden Theatre, in Gadsden, Alabama, was seated behind the desk in his office, which was on the mezzanine floor of the theatre. The appellant pushed open the partially closed door and entered the office. He thereupon pointed a pistol at Pierce and said: 'All right, lets have it.'

Pierce stated he merely stared at appellant, whereupon appellant fired the pistol. The bullet went completely through Pierce's chest. Appellant attempted to fire again, but his pistol jammed.

Pierce dived to the floor, grabbing his own pistol from the top of the desk, and using the desk as a shield, fired at appellant, who fled the office.

During his testimony Pierce was positive in identifying appellant as the person who assaulted him on this occasion.

Billy Thomas and Carol Robinson, two employees of the theatre on duty the evening of this occurrence, likewise positively identified appellant, whom they had observed at the theatre on previous times, as being the person they observed running down the stairs from the mezzanine floor, and out of the theatre, immediately after they heard the sound of shots in the office. Appellant held a pistol in his hand as he fled.

A bullet was dug out of the plaster wall behind the chair in which Pierce was seated at the time he was shot. This bullet was recovered by the police who arrived at the scene a few minutes after the shooting. Fresh plaster and dust was on the floor beneath the bullet hole.

This bullet was turned over to the Assistant State Toxicologist, who after ballistics tests testified that this bullet was fired from a gun found by police in a closet in appellant's home, and which gun appellant admitted was owned by him.

The defense evidence was directed toward establishing an alibi. That the jury was unconvinced by the evidence presented in support of this defense is apparent from the verdict.

Clearly a question of fact solely within the province of the jury to resolve was presented by all the evidence submitted. Certainly that presented by the State is abundant in its tendencies to support the verdict rendered. The affirmative charge requested by appellant was properly denied.

During the cross-examination of appellant there was elicited from him, over timely objections, supported by various grounds, testimony to the effect that while a member of the United States Navy he had been convicted of the offense of desertion in time of war and sentenced to imprisonment for a term of six years.

Sections 434 and 435, Title 7, Code of Alabama 1940, are as follows:

' § 434. No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury; but if he has been convicted of a crime involving moral turpitude, the objection goes to his credibility.'

' § 435. A witness may be examined touching his conviction for crime, and his answers may be contradicted by other evidence.'

Section 435, supra, must be construed in pari materia with Section 434, supra. Lakey v. State, 206 Ala. 180, 89 So. 605.

We have found no case in this jurisdiction relating to the admissibility of a conviction by a general court marital, to effect the credibility of a witness.

Further while there may be other decisions dealing with this point, we have found only two, one decided by the Supreme Court of Arkansas, and the other by the Supreme Court of Arizona.

In 1920, in the case of Jordan v. State, 141 Ark. 504, 217 S.W. 788, 790, the Supreme Court of Arkansas held that it was proper to cross-examine a defendant relative to his conviction by a court martial for desertion, the court stating: 'A witness may be impeached by drawing out of him on cross examination that he has been guilty of acts of moral turpitude, and especially of crime, which reflect upon his integrity or credibility as a witness.'

Writing to the same point in 1927 the Supreme Court of Arizona in Midkiff v. State, 29 Ariz. 523, 243 P. 601, 606, concluded that the lower court had properly sustained objections to questions seeking to show that a witness had been convicted of desertion by a court martial, the view of the Arizona court being expressed as follows: 'We think the general rule is that, if a witness has been convicted of a crime, it may be shown for the purpose of affecting his credibility, but we are unable to find where any court has ever held that a conviction by a court martial for desertion may be shown for that purpose. Desertion is purely a military offense; it is not a crime under the general law; its character is such as not to involve moral turpitude or to indicate a disposition or trait that would make the witness' testimony questionable. We are of the opinion it was not error, considering the kind of conviction tendered, to refuse its admission.'

It has been established by the doctrines of our decisions that a conviction of a crime involving moral turpitude by a court of another state may be shown for the purpose of discrediting a witness. Dickey v. State, 32 Ala.App. 413, 26 So.2d 532; Williams v. State, 238 Ala. 40, 189 So. 84. In Fidelity-Phenix Fire Ins. Co. v. Murphy, 231 Ala. 680, 166 So. 604, on rehearing, it is clearly held that conviction in a federal court in this state of perjury would render a witness incompetent in our state courts. We find nothing in this decision limiting such evidence of prior convictions solely to federal courts in this State. The only question before the court, and passed on, was the admissibility of the federal conviction by a federal court in this State.

As set forth by Wigmore, Third Ed., Vol. III, Section 980, a judgment of conviction in another jurisdiction ought equally to be admissible as a local judgment; for it equally evidences guilt of crime, and the crime is the discrediting fact, wherever it may be committed.

By Article I, Section 8, of the United States Constitution, Congress is invested with the power to...