Orr v. State
Decision Date | 19 August 1958 |
Docket Number | 8 Div. 290 |
Citation | 111 So.2d 627,40 Ala.App. 45 |
Parties | C. W. ORR v. STATE. |
Court | Alabama Court of Appeals |
Powell & Powell, Dacatur, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
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:
'
The illicit cargo was in four Army water ('jacket' or 'GI') cans, each holding 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 9he gave himself up to the sheriff.
The solicitor catechized Orr regarding his nocturnal whereabouts:
'Mr. S. Powell: We object.
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, 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. Powell: We except.'
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:
* * *
* * *
'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 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:
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Watson v. State
...and gentlemen, retire to the jury room and continue your deliberations." We have carefully considered the case of Orr v. State, 40 Ala.App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959), cited by the defendant. After examining the charge as a whole, Whittle v. State......
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Mahan v. State, 6 Div. 596
...the present case, the trial court did not indicate to the jury by his words or conduct that he 'expected' a verdict, see Orr v. State, 40 Ala.App. 45, 111 So.2d 627 aff'd, 269 Ala. 176, 111 So.2d 639 (1959), or that he hoped the 'holdout' juror would agree with the majority, see Ashford v. ......
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Ex parte Anderson, 1 Div. 722
...to agree. Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Parham v. State, 47 Ala.App. 76, 250 So.2d 613 (1971); Orr v. State, 40 Ala.App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). A jury's inability to agree either on a verdict or punishment is a proper r......
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Evans v. State
...an exception for the defendant. It is error for the trial court to coerce or threaten a jury in the reaching of a verdict. Orr v. State, 40 Ala.App. 45, 111 So.2d 627, affirmed on cert., 269 Ala. 176, 111 So.2d 639. But the entire charge must be examined so that the suspected language is te......