Roberson v. State

• Decision Date: 15 December 1925
• Docket Number: 4 Div. 189
• Citation: 106 So. 696,21 Ala.App. 196
• Parties: ROBERSON v. STATE.
• Court: Alabama Court of Appeals

106 So. 696

21 Ala.App. 196

ROBERSON v. STATE.

4 Div. 189

Court of Appeals of Alabama

December 15, 1925

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Andrew Roberson was convicted of assault to rape, and he appeals. Reversed and remanded.

C.O Stokes, of Ozark, for appellant.

Harwell G. Davis, Atty. Gen., Thos. E. Knight, Jr., Asst. Atty. Gen and Sollie & Sollie, of Ozark, for the State.

SAMFORD, J.

The party alleged to have been assaulted was a deaf mute about 19 years old, but she could read and write. When she came to defendant's store there was a conversation between her and defendant carried on in writing, she writing one side of the conversation and defendant writing the other. This conversation contained suggestions or an invitation that the girl should go into the rear part of defendant's store to look for some salmon, which she sought to buy. The alleged crime was consummated, if at all, in the rear part of defendant's storehouse behind the counter, and in continuation of the conversation above alluded to. Objection was made that the conversation, being in writing, was inadmissible without first accounting for the absence of the writing. The conversation being entirely in writing was as if the parties had conducted a correspondence by letter, and the admission of the contents of the writing should be and is governed by the same rules as that of letters and telegrams etc. That the conversation was preliminary to and a part of the alleged crime can hardly be questioned. It was not alone the fact of a conversation, but the contents of the writing which was desired in evidence.

In Peek's Case, 19 Ala.App. 370, 97 So. 374, in admitting oral proof of a search warrant, the court said: "The existence of the search warrant, rather than its contents was the matter desired." The general rule says Mr. Greenleaf in his work on Evidence, volume 1 par. 89 is: Where a written instrument is only a collateral incident to the matter in issue and its existence, rather than its contents, is the matter desired to be proved, the rule which in general requires the production of the writing, as the best evidence of its contents, is not applicable. Allen v. State, 79 Ala. 34; Griffin v. State, 129 Ala. 92, 29 So. 783. In the instant case the conversation, which was in writing, was so closely related to the alleged crime as to be a part of the res gestae, and the contents of the writing, rather than its existence, was the matter desired. The general rule is that in such cases secondary evidence will not be admitted without proof of the loss or destruction of the original. 1 Wharton, Crim.Ev. par. 162; Bell v. State, 156 Ala. 76, 47 So. 242. The foregoing, as it relates to written conversations by deaf mutes, is supported by the opinion in State v. De Wolf, 8 Conn. 93, 20 Am.Dec. 90, though the soundness of the rule when applied to written conversations by deaf mutes has been questioned by a note in Underhill Crim.Ev. (2d Ed.) par. 45, note 59. Upon the best authority we have been able to find, we hold that the written conversation between defendant and the...