Register v. State

• Decision Date: 10 May 1949
• Docket Number: 4 Div. 62.
• Citation: 42 So.2d 519,34 Ala.App. 505
• Parties: REGISTER v. STATE.
• Court: Alabama Court of Appeals

42 So.2d 519

34 Ala.App. 505

REGISTER v. STATE.

4 Div. 62.

Alabama Court of Appeals

May 10, 1949

Rehearing Denied June 21, 1949. [Copyrighted Material Omitted]

C. L. Rowe, of Elba, for appellant.

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

The following charges were refused to defendant:

'C-2. The Court charges the jury that a probability of defendant's innocence is a just foundation for a reasonable doubt, and, therefore, for his acquittal.

'C-20. The court charges the jury that if the evidence for the state consists of testimony as to the truth of which the jury have a reasonable doubt, the jury must not convict the defendant although they may not believe the testimony of the defendant's witnesses.

'C-22. The court charges the jury that if you believe that any material part of the evidence of the witness Aubrey Smith is wilfully false you may disregard his entire testimony, and should you do so, this defendant must be acquitted.'

HARWOOD Judge.

This appellant was indicted for the offense of buying, receiving, or concealing stolen property, knowing that the same was stolen, an offense denounced by Section 338, Title 14, Code of Alabama 1940.

The property alleged to have been stolen was a typewriter belonging to the Alabama Warehouse Company, of Troy, Alabama. The value of the typewriter appears from the evidence to have been between $50 and $100. Appellant at the time of this alleged offense operated a radio repair shop in Troy, and also received for repair typewriters, adding machines, etc.

The evidence presented by the State tended to show that during a weekend beginning on or about July 16, 1945 a Royal typewriter was taken from the office of the Alabama Warehouse Company, in Troy. On the Monday following it was discovered that a window had been raised by someone, and the typewriter was missing.

Aubrey Smith, a witness for the State, and who has been adjudged guilty and sentenced for the theft of this typewriter, testified that he entered the warehouse office on a Saturday night in July 1945, and stole a typewriter therefrom. He carried the typewriter to a place behind the Commercial Hotel in Troy and concealed it. About a week later he met appellant at a picture theatre in Troy. The two of them went to where he had hidden the typewriter. They then returned to the theatre where they were joined by appellant's wife. After the show the three of them returned in appellant's automobile to the place where the typewriter was hidden. Smith placed the typewriter in appellant's car and the three then drove to appellant's shop. There Smith sold the typewriter to appellant for $15. Smith testified that he told appellant at the time of the transaction that he had stolen the typewriter from the Alabama Warehouse Company.

In October 1946 a Royal typewriter was found in appellant's shop. Its serial numbers had been removed, and the resulting depression filled in with solder, and painted over. This typewriter was received in evidence as a State's exhibit.

Through Mr. Panhorst, Secretary of the Alabama Warehouse Company, two typewritten reports of meetings of the directors of said company, dated March 12, 1945 and May 14, 1945 were received in evidence as State's Exhibits A and B, over defendant's objection.

Prior to the introduction of these reports Mr. Panhorst had testified that these reports were typed under his direction and supervision, and that they were typed on the Royal typewriter that was taken from tha Alabama Warehouse Company. No other typewriter was in the office of the Alabama Warehouse Company at the time these reports were typed up.

On cross examination Mr. Panhorst testified that he did not actually see the reports typed, but that he had written the reports in longhand, then handed them to his secretary who had later during the same day returned them to him in typewriten form. Mr. Panhorst stated further he was positive these two reports received in evidence were written on the Royal typewriter later taken from the office of the Warehouse Company.

C. D. Brooks, in charge of the Birmingham Division of the State Department of Toxicology and Criminal Investigation, and who qualified as an expert in the examination of questioned documents, written and typed, testified that he had made writings on the typewriter found in appellant's shop, and upon analysis and comparison with the two typewritten reports of the directors' meetings which were in evidence as State's exhibits, it was his opinion that the same typewriter was used in preparing all of such writings.

The evidence introduced by the appellant in the trial below was directed toward showing that the typewriter found in his shop had been brought there by one Cliff Barnett for repairs sometime in July 1945. Barnett was a stranger to appellant, and when he did not call for the typewriter after some time the appellant began to use it. Barnett was not produced as a witness at the trial below. The appellant denied knowing that the typewriter was a stolen one, and also denied that he had bought it from State's witness Aubrey Smith.

In our opinion the lower court did not err in admitting into evidence the typewritten reports of the directors' meetings (State's Exhibits A and B). Prior to their introduction Mr. Panhorst, Secretary of the Alabama Warehouse Company, had testified that they were prepared under his direction and supervision, and that they had been written on the Royal typewriter that had been stolen from the office of the Warehouse Company. Only a general objection was interposed to the admission of Exhibit A. Exhibit B was objected to on the ground that Mr. Panhorst 'didn't see the typing done, and it could have been done on another typewriter outside of the office.' At the time these grounds were asserted there was no evidence, by voir dire examination of the witness or otherwise, tending to give them validity. Only Panhorst's testimony that the exhibits had been typed on the Royal typewriter was before the court.

A trial court is justified in presuming that a witness has knowledge of the matters about which he positively testifies.

When it appears later that the witness may have no such knowledge, or that he has stated conclusions rather than positive facts, then a motion to exclude such testimony is necessary to raise the point for review. Johnson v. State, 16 Ala.App. 453, 78 So. 716; Lowery v. State, 25 Ala. App. 529, 149 So. 726; Martin v. State, 30 Ala.App. 54, 200 So. 575; Graham v. State, 153 Ala. 38, 45 So. 580.

It its broader aspects, we also think the court properly submitted these exhibits to the jury. Mr. Panhorst had testified that he had written the reports in longhand, given them to his secretary, and she had later, during the same day, returned the typewritten copies to him. There was only one typewriter in the office. We do not know the distance between Mr. Panhorst's office and his secretary's office or desk. To say that he did not know that these reports were written on the Royal typewriter, we would have to assume that Mr. Panhorst did not hear them being typed, or that his secretary, on two separate occasions took material given her to some other typewriter outside of her regular office building. The probability of this latter event is slight. On the other hand the probability growing out of the natural and obvious course of office conduct would strongly indicate that Exhibits A and B, under the facts and circumstances of this case, were typed on the only typewriter in the offices of the Alabama Warehouse Company. Such conclusion involves such a slight degree of conjecture, as to justify and render admissible as a statement of fact Mr. Panhorst's assertion that the two exhibits were typed on the Royal typewriter stolen from the Warehouse Company, Certainly the probative value of these exhibits is obvious, and ponderously outweighs the casual and indeterminable risks to defendant's rights that might be involved in their admission. The probative wright of such evidence was of course for the jury.

In his brief appellant's able counsel further contends that Exhibits A and B were not admissible in that not being handwriting, the provisions of Section 421, Title 7, Code of Alabama, which permits the admission of disputed handwriting for comparison with writing admitted to be genuine.

This being so appellant's counsel contends that we must look to the common law rule pertaining to admission of disputed writings for comparison purposes. This rule was that comparison of a given handwriting with that of different submitted writings having no connection with the matters at issue, is not permissible. See Sulzby v. Palmer, 194 Ala. 524, 70 So. 1, and cases therein cited. As to handwriting this rule was changed in 1915 by enactment of the progenitor of Section 421, supra, and the relevancy of the contents of the disputed...