Parsons v. State

Citation38 So.2d 209,251 Ala. 467
Decision Date23 December 1948
Docket Number6 Div. 697.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

See also 33 Ala.App. 309, 33 So.2d 164 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

G. Ernest Jones, Jr., Beddow & Jones, Roderick Beddow and G. Ernest Jones, Sr., all of Birmingham, for appellant.

A. A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

5. I charge you, gentlemen of the jury, that identification testimony is in the nature of opinion testimony and the jury is authorized to consider such testimony in the light of their own sound common sense, taking into consideration the opportunity of the witness to observe and know the facts from which the witness forms the opinion with regard to the identity of the persons, in determining what, if any, weight and credence the jury would give to such identification testimony.

6. The court charges the jury that it is not necessary for the jury to find that a witness has perjured himself or herself for the jury to determine that they will not give any weight to the testimony of such witness.

7. The court charges the jury that an honest and truthful person may be mistaken in the facts with regard to which he testified without being a false witness and if the jury find under all the facts and circumstances of the case that a witness is mistaken, the jury should give no weight to that testimony, even though the jury may have the highest regard for the truthful character of the witness.

11. The court charges the jury that if the jury believes that any witness has testified in this case from motives of self-interest, with the promise or hope of obtaining any benefit whatsoever for and on account of his giving testimony in this case, the jury would be authorized to consider the testimony in the light of such interest and in the exercise of the jury's sound discretion, the jury would be authorized to reject all or any part of the testimony of such witness.

13. The court charges the jury that the testimony in this case is, to a large degree, circumstantial and that the jury would not be authorized to convict the defendant upon circumstantial evidence until such evidence believed by the jury to be true is so strong, clear and convincing as to exclude every reasonable hypothesis consistent with the innocence of the defendant.

FOSTER Justice.

Appellant was convicted of robbery, and he appeals.

When appellant was arraigned in the Circuit Court of Jefferson County, he called to the attention of the court a motion which he had filed on that day. It was taken under advisement, but not acted on that day. The motion required that a subpoena duces tecum be issued to George D. King, Herbert Osborne, and John D. Hill, and that said witnesses be required to produce a certain package containing watches and other articles, which package was delivered to Perry Jewelry Company by mail several days subsequent to the robbery. It also requested that the court require those witnesses to produce every written report and statement of any finger print expert in connection with the package. The motion further called on the court to request the Attorney General of the United States to order employees of the Justice Department to produce those articles in court.

When this motion was called to the attention of the judge on the first day of the trial, it appeared that Mr. Osborne and Mr. King, who were named in the motion, were present in court, and that they were requested by counsel, Mr. Macy Taylor, from the United States Attorney's office. The articles, however, were not produced before the trial started, and counsel for the witnesses presented to the court a general order of the Attorney General of the United States stating that under the authority of Title 5 U.S.C.A. § 22, all articles in the custody of the United States Attorney and in the custody of the Federal Bureau of Investigation were confidential, and could not be produced except upon consent of the Attorney General. This order was copied into the record in the case by the trial judge. At this point in the case, the trial judge refused to require the articles and things named in the motion to be produced in court, or to request the Attorney General of the United States to order employees to produce them.

After the State rested its case, the defendant called Mr. Herbert Osborne, an F.B.I. agent who had investigated the case, to the stand, and asked him certain questions concerning the package described in the motion for subpoena duces tecum. The witness refused to answer on the basis of the rule or regulation of the Attorney General heretofore referred to. The witness was not required by the court to answer.

The principle seems to be well settled that communications between the Government and its agents are privileged, else due administration of justice and government could not proceed. For many years it has been settled law that a government official cannot be compelled to disclose the name of an informer. But there is an exception recognized by the cases based on constitutional grounds which is that if it appears that the informer's name is necessary or desirable to show the prisoner's innocence, the official can be required by the court to make the disclosure. United States v. Li Fat Tong, 2 Cir., 152 F.2d 650; Wigmore on Evidence (3d ed.) section 2374, page 756(4):

'If what is asked is useful evidence to vindicate the innocence of the accused or lessen the risk of false testimony or is essential to the proper disposition of the case, disclosure will be compelled.' Wilson v. United States, 3 Cir., 59 F.2d 390, 392; Centoamore v. State, 105 Neb. 452, 181 N.W. 182, 192; Regina v. Richardson, 3 Foster & F. (Eng.) 693; Marks v. Dreyfus, L.R., 25 Q. B. D. 494.

Again it is said in another case:

'We are clear that the conversations of government detectives and other agents with witnesses, with the purpose and effect of inducing and influencing the evidence of such witnesses, do not rise to the dignity of state secrets, and, when a witness so induced or influenced appears on the stand and testifies, he may be cross-examined as to any and all inducements made to him on the part of any one in connection with his evidence; and we think it would be intolerable for government agents to be allowed to give inducements to witnesses, and not have the same freely exposed on the witness stand, so as to inform the court and jury as to the proper weight of the evidence given.' King v. United States, 5 Cir., 112 F. 988, 996.

Again it is said by the United States Supreme Court: 'Public policy forbids disclosure of an informer's identity unless essential to the defense'. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 176, 83 L.Ed. 151.

Title 5, section 22, U.S.C.A. provides that 'The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.'

The court was informed, not by formal proof, that by authority of that statute, the United States Attorney General did on May 2, 1939, make an order No. 3229, as follows: 'All official files, documents, records and information in the offices of the Department of Justice, including the several offices of United States Attorneys, Federal Bureau of Investigation, United States Marshals, and Federal penal and correctional institutions, or in the custody or control of any officer or employee of the Department of Justice, are to be regarded as confidential. No officer or employee may permit the disclosure or use of the same for any purpose other than for the performance of his official duties, except in the discretion of the Attorney General, the Assistant to the Attorney General, or an Assistant Attorney General acting for him. Whenever a subpoena duces tecum is served to produce any of such files, documents, records or information, the officer or employee on whom such subpoena is served, unless otherwise expressly directed by the Attorney General, will appear in court in answer thereto and respectfully decline to produce the records specified therein, on the ground that the disclosure of such records is prohibited by his regulation.'

There had been previously a somewhat similar order.--Section 65, Rules of the Division of Investigation.--See, 165 A.L.R. 1348, note.

Of course, the Revised Statute, supra, could not authorize a rule whose effect was to deprive one of his constitutional rights, and it does not give such authority in terms. The regulation must not be inconsistent with law, to be supported by that statute. The United States Constitution is superior to all other laws in these United States.--Article 6, Clause 2, Constitution of the United States.

The Fourteenth Amendment prohibits a state from depriving any person of life, liberty or property without due process of law. Our State Constitution is to the same effect, Article 1, section 6, and the Fifth Amendment to the Constitution of the United States restricts the federal government in respect to due process. 16 Corpus Juris Secundum, Constitutional Law, § 568, page 1146; Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288.

'It is settled by many recent decisions of this (United States Supreme Court) court that a regulation by a department of government, addressed to and reasonably adapted to the enforcement of an act of Congress, the administration of which is confided to such department, has the force...

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    • March 14, 1968 this case. We do not believe the Smith case, supra, is applicable here. That case is somewhat similar to our case of Parsons v. State, 251 Ala. 467, 38 So.2d 209, where we were concerned with the right of a State court to obtain certain articles and reports in the possession of a United ......
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    ...50.21, the accused is not always entitled to prove his financial worth in order to show an absence of motive. Parsons v. State, 251 Ala. 467, 478, 38 So.2d 209 (1948). Whether a defendant's strong financial condition is material in "peculative cases" to show the absence of motive, depends u......
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