Orr v. State, 8 Div. 290

• Court: Alabama Court of Appeals
• Writing for the Court: CATES
• Citation: 111 So.2d 627,40 Ala.App. 45
• Decision Date: 19 August 1958
• Docket Number: 8 Div. 290
• Parties: C. W. ORR v. STATE.

Page 627

111 So.2d 627 40 Ala.App. 45 C. W. ORR
v.
STATE. 8 Div. 290. Court of Appeals of Alabama. Aug. 19, 1958.
Rehearing Denied Oct. 7, 1958.

Page 629

[40 Ala.App. 47] Powell & Powell, Dacatur, for appellant.

John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

CATES, Judge.

Orr appeals from a judgment rendered June 19, 1957, conforming to a verdict of guilt of transporting five gallons or more of 'wildcat' whiskey, Code 1940, T. 29, § 187. Upon conviction, he was sentenced to five years' penal servitude.

The appeal is also, as permitted by statute (Code 1940, T. 7, § 764), from a judgment rendered August 17, 1957, overruling a motion for new trial.

The view of the evidence we must take, in the light of the verdict for the State, is substantially as follows:

On January 8, 1957, Mr. Carlos Nelson, for five and one-half years an enforcement officer of the Alcoholic Beverage Control Board, saw Orr driving a 1951 Black Chevrolet Fleetline car on a paved road (Highway 41) three miles south of Danville in Morgan County. This was about six o'clock in the morning.

Nelson, who was accompanied by another officer, Herman Sandlin, followed a car coming out of a driveway. As he put it:

'* * * I pulled out after him and run about a mile without my lights on and as we rounded a curve three-quarters of a mile south of there, a pick-up truck came out of a side road. He passed the pick-up truck just a few feet after he came out. As I approached the pick-up, I turned my lights on and caught up with him and turned on the siren and pulled up by him. He looked back over his shoulder at me and cut it off to the left.

'Q. To the left? A. Yes, sir.

'Q. You mean cut in front of your car? A. Into the side of my car.

'Q. He cut over toward your car? [40 Ala.App. 48] A. That's right. I slammed the brakes on and got behind him and kept the siren on for about a half a mile running on the left hand side of the road right near the edge. Finally, he pulled in the middle of the road and I bumped his rear bumper and he run in the ditch.

'Q. He run in the ditch? A. And the car turned around and the trunk lid flew open and two cans of whiskey were still in the trunk and two fell out in the ditch right behind his car, and I backed up and got my headlights on his car and I thought he was going to stay in, and I got out of our car and run around to the culvert, and he went out the right side door and up a bank and out through the woods.

'Q. Did you run after him? A. I did.

'Q. How far? A. About a hundred yards until I got tangled up in some vines and fell down.

'Q. Got tangled in the vines? A. Yes, sir.

'Q. His car hit the ditch and turned around? A. Yes, sir.

'Q. Did you get a good view of his car then? A. Yes, sir.

'Q. Did you see him then? A. I saw him as he went out of the car on the right hand side and up the bank. I was running in the meantime.'

The illicit cargo was in four Army water ('jacket' or 'GI') cans, each holding

Page 630

about five gallons of wildcat whiskey. Sandlin's testimony was of the same tenor and effect. Richard Hyche, a deputy sheriff, gave evidence to identify the whiskey and the containers introduced by the State as being those handed him by Nelson and Sandlin after the chase.

Orr's evidence was in the nature of alibi, part of his explanation being that he stayed the better part of the night before at Maudie Campbell's house where he last saw his car, it being gone when he got up the next morning early to go to her brother's home nearby. He and Maudie's brother, Buddy Winton, came into Hartselle later and there that evening Orr was told by a young boy he encountered on the street that his car was in the hands of the law. On January 9 he gave himself up to the sheriff.

The solicitor catechized Orr regarding his nocturnal whereabouts:

'Q. Did you tell your wife when you left home you would be gone that night? A. I didn't tell her nothing.

'Q. Didn't tell her you were going to spend the night with Maudie?

'Mr. S. Powell: We object.

'A. I ain't told her nothing.

'Q. After you got out, spending the night with Maudie, did you send her any word you were at Maudie's house? A. No, sir, I didn't send word; she didn't.'

The resolution of the conflict of the tendencies of the evidence is for the jury, and will not be disturbed on appeal except for lack of sufficiency to make a prima facie case.

Orr raises two questions on this appeal: the first arising out of a reference in argument by one of the solicitors to the absence of Maudie Campbell to testify for Orr; and the second and occasioned by a supplemental oral charge given on the morning of the second day of the trial--the jury deliberated most of the afternoon of the day before.

During argument the following occurred:

'By Mr. M. Powell: We object to the statement just made by the County Solicitor, 'Where is Mattie Campbell, if he spent the night with her and is looking the Penitentiary in the face?'

'Mr. Slate: 'Doors of the pen'.

'Mr. Powell: 'Doors in the face, where is she?' We assign as grounds, [40 Ala.App. 49] Mattie Campbell was equally available to the State and the Defendant. We maintain that it is prejudicial error to refer to the absence of a witness that is equally available to both sides. We move to exclude that statement, and for a mistrial at this time.

'Mr. Johnson: There are certain exceptions to the rule. The court holds, by virtue of relationship, one witness is more accessible to one side than the other. I want to be frank with Your Honor. The rule to which I am referring had certain reference to the comments regarding the absence of his wife. I don't know that it would reach Mattie Campbell.

'Court: The rule is flexible with reference to that. The rule is that if the witness is peculiarly friendly to one party more than the other, that it may be commented upon that they did not have them there, but in this case, gentlemen of the jury, you will not consider the argument of the Solicitor with reference to the absence of Maudie Campbell. Maudie Campbell seems to live somewhere up around Valhermosa Springs in this county and would be available. The testimony was had about her yesterday and no process is issued for her since then, so that part of it is excluded from you, gentlemen. You will not consider it. The motion for suspension of the trial is overruled.

'Mr. Powell: We except.'

Page 631

The general rule is stated in Kissic v. State, 266 Ala. 71, 94 So.2d 202, 207, as:

'* * * It is the settled law in this State that no unfavorable inference can be drawn, and no unfavorable argument to a jury made, by counsel against a party to a cause because of the failure to call a witness to testify, when that witness is accessible to both parties, and can be introduced by and examined by either party. * * *'

However, we have here a situation similar to that discussed in Davis v. State, 259 Ala. 212, 66 So.2d 714, 717, where the court, after pointing out that the trial judge sustained objection to the solicitor's argument that the defendant put no testimony on the stand and directed the jury not consider this aspect of the trial, said:

'* * * while there was a motion for a new trial within the time prescribed by law, and that the motion was duly heard and acted upon, it did not have as a ground thereof the effect upon the jury of the alleged improper argument made by the solicitor, as hereinabove detailed. So that, for the purpose of determining whether there is reversible error with respect to it, we can only consider what we have copied hereinabove from the record.

* * *

* * *

'* * * The cases hold that such a status, prima facie, shows an absence of reversible error. Many of those cases are cited in Broadway v. State, supra [257 Ala. 414, 60 So.2d 701], to which we add Bestor v. State, 209 Ala. 693, 96 So. 899. In the Bestor case it was emphasized that no motion for a new trial was made on that ground, but had it been done a serious question of error would have been presented. We also add Bachelor v. State, 216 Ala. 356, 113 So. 67; Stephens v. State, 250 Ala. 123(3), 33 So.2d 245.

'Our judgment is that this record does not show reversible error with respect to that matter in the light of the foregoing principles and authorities.'

Orr's motion for a new trial cited some sixteen grounds, all of which, with a single exception, in varying form, went to the weight of the evidence or of the verdict (in the light of the evidence) adhering to the trial judge's instructions. Ground 11 cited as error the overruling of defendant's objections in various instances to the admission of evidence. No ground reaches or cites the judge's failure to declare a mistrial[40 Ala.App. 50] because of the solicitor's pointing out that Maudie Campbell was not put on the stand.

The trial judge took into account that Orr, on the first day of trial, testified as to his spending the night at Mattie (Maudie) Campbell's. Therefore, the State (even though theretofore without notice of the details of Orr's alibi) still had time to have sought her as a rebuttal witness for the second day.

The expression 'equally available' or 'accessible' connotes more than mere indifference or lack of imputed partiality as between the parties: it also includes the concept of knowledge of the purported witness' having some familiarity with the facts and being within the reach of compulsory process.

Thus, Wigmore, Evidence (3rd Ed.), § 288 (1957 Supp. p. 57), says:

'However, the term 'available' is not to be construed as meaning merely the accessibility for service of process. The determination of the question of equal availability may in a given situation involve the consideration of many factors. Such matters as one party's superior means of knowledge of the existence and identity of the witness, of the testimony that might be expected from him in the light of his previous statements, if any, with reference to the case are to be considered. It is...