Robinson v. State, 1 Div. 163.

CourtSupreme Court of Alabama
Writing for the CourtLIVINGSTON, Justice.
Citation11 So.2d 732,243 Ala. 684
Docket Number1 Div. 163.
Decision Date28 January 1943
PartiesROBINSON v. STATE.

11 So.2d 732

243 Ala. 684

ROBINSON
v.
STATE.

1 Div. 163.

Supreme Court of Alabama

January 28, 1943


Rehearing Denied Feb. 18, 1943.

Appeal from Circuit Court, Mobile County; D.H. Edington, Judge. [11 So.2d 733]

[243 Ala. 685] The following charges were refused to defendant.

7. The court charges the jury that if there is a single fact proved to the satisfaction of the jury, which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit him.

8. The court charges the jury that if, after looking at all the evidence in this case and considering it fully, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt that the defendant is guilty of the offense charged, then this is such a doubt as would entitle the defendant to an acquittal and you should so find.

9. The court charged the jury that it is the policy of the law that no innocent person should be convicted and that it is better that many guilty go unpunished than that one innocent person be convicted.

10. The court charges the jury that if under the evidence in this case there are [11 So.2d 734] two theories, one consistent with innocence of the defendant, and the other consistent with the guilt of the defendant, then you should acquit the defendant.

[243 Ala. 686] 11. The court charges the jury that the only foundation for a verdict of guilty in this case is that the entire jury shall believe from all the evidence beyond a reasonable doubt and to a moral certainty, that the defendant is guilty as charged in the indictment to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and if the prosecution has failed to furnish such measure of proof and to so impress the minds of the jury of his guilt they should find him not guilty.

Wm. V. McDermott, H.M. Aldridge, and G.A. Tonsmeire, all of Mobile, for appellant.

Wm. N. McQueen, Atty. Gen., and John O. Harris and Walter W. Flowers, Asst. Attys. Gen., for the State.

[243 Ala. 687] LIVINGSTON, Justice.

The appellant, Curtis Robinson, was indicted, tried and convicted of the offense of having forcibly ravished Zeola Mae Armstrong, a woman, and sentenced to suffer the death penalty. One Henry Daniels, Jr., was indicted separately, tried separately, and convicted for the same offense. His appeal is presently pending in this court.

Appellant entered a plea of not guilty, and waived the drawing of a special venire for the trial of this cause. McSwean v. State, 175 Ala. 21, 57 So. 732; White v. State, 209 Ala. 546, 96 So. 709.

In his opening statement to the jury the solicitor for the State said: "I expect to show by the evidence that just prior to this transaction they (we interpolate Curtis Robinson and Henry Daniels, Jr.) entered into an agreement about 'getting a white woman' to have sexual intercourse with * * * at another time this defendant talked again to Henry Daniels about getting a white woman. * * * about another conversation this defendant had with another man about 'getting a white woman' and ravishing her. * * * This defendant had a conversation again on Texas and Dearborn Street about getting some white woman."

Appellant insists that the trial court committed error to reverse in overruling his separate objection to the foregoing separate statements.

The effect of our decisions on the question here presented is stated in the case of Wilkey et al. v. State ex rel. Smith, 238 Ala. 595, 192 So. 588, 589, 129 A.L.R. 549, as follows:

"In Loeb v. Webster, 213 Ala. 99, 104 So. 25, to unduly limit the opening statement of counsel was held to be error. In Birmingham Baptist Hospital v. Branton, 218 Ala. 464, 118 So. 741, it was held not to be improper to state the facts or to remark that the mother would suffer by baby's death. In Brown v. Leek, 221 Ala. 319, 128 So. 608, it was held that immaterial and prejudicial matter may not be introduced in opening statement of counsel, that the time, manner and character of said statement was within the discretion of the trial court. In Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561, it was held that opening statements may disclose the basis of the suit and the source of title. In Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837, it was held that counsel may, in good faith, show the theory on which the proceedings were had and state the facts of the res gestae.

"In Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 188, 153 So. 261, 264, this Court said: 'The right of counsel to make a preliminary or opening statement to the jury is fully recognized in this jurisdiction, but this right is not unlimited. The purpose and function of such a statement is to advise the jury of the facts relied upon to make up his right of action or defense, "to define the nature of the questions involved, and advise them of the issues to be tried so as to enable them to understand the case to be tried." Counsel, of course, may, in a reasonable way, outline what he expects to prove, unless it is manifest that such proof would be incompetent, or the offer or statement is made for the purpose of improperly influencing the jury. * * * ' " See, also, 64 Corpus Juris p. 235, section 251; 38 Cyc. 1475.

The following rule was expressly approved in the case of Handley v. State, 214 Ala. 172, 106 So. 692, 694: "No Right to Rehearse Facts Which Cannot be Proved.--Counsel has no right, in his opening statement, to rehearse before the jury facts which he is not in a condition to prove. It is the duty of the judge to see that this rule is not overstepped, and therefore he has a right to ask the counsel [11 So.2d 735] if he means to prove what he has stated. As was well said by Mr. Justice Graves: 'The decisions unite in substantially denying the right to get before the jury a detail of the testimony expected to be offered, and especially any not positively entitled to be introduced, and deny the right to use it as a cover for any topics not fairly pertinent.' 1 Thompson on [243 Ala. 688] Trials § 263." And in the same case, it was said: "Failure to prove a particular thing, proposed in good faith, will not ordinarily work a reversal. People v. Gleason, 127 Cal. 323, 57 P. 592."

It was neither necessary nor proper for the solicitor to detail the evidence by which he intended to prove his opening statement to the jury.

Specific supporting evidence is found in the signed confession of the defendant, admitted over his objection and exception. The confession is, in part, as follows:

"I have been knowing Henry Daniels, Jr., for about one week. He and I are good friends and go together. We have been working at Turner Terminal together.

"One occasion he and I talked about * * * some white woman. He said he would like to go with a white woman and I said I would like to go with one.

"He and I went to the C.I.O. hall yesterday about 9 P.M. on Elmira and Warren. This was about one hour before he and I attacked the white lady in the alley above named, about 50 feet north of Texas Street.

"We left the C.I.O. hall about 9:30 or 9:45 last night and went west on Elmira Street to the alley and turned south and went south in the alley to my house. We went into my house. We stayed there about 15 minutes and came out and went south, down the alley, towards Texas Street. My house is about one hundred feet from Texas Street and on the east side of the alley. When we got to the north side of Texas Street we looked towards Dearborn Street, which was about 125-150 feet from the north side of Texas Street. She was about 100 feet from us. It was dark but we could see that she was a white woman. We did not go out on the sidewalk, but just peeped around the fence. He, Henry Daniels, Jr., said here comes a white woman let us * * * her and I said 'you catch her' and he said 'alright and you grab hold of her too.' We then stood back in the alley and kept quiet until she got to about the center of the alley we jumped out and grabbed her from behind. Daniels put one arm around her neck and his other hand on her mouth and pulled her close to him. I grabbed her wrists. When we first grabbed her she said 'who is this that has got me.' We said nothing. She began to fight with her whole body, kicking, scratching and begged us to let her alone. We dragged her about fifty feet up the alley. He pulled one arm around her neck and I held...

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52 practice notes
  • United States v. Lovely, Cr. No. 17107.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • May 14, 1948
    ...1943, 243 Ala. 675, 11 So.2d 756, writ of certiorari denied in 1943, 319 U.S. 755, 63 S.Ct. 1168, 87 L.Ed. 1708; Robinson v. State, 1943, 243 Ala. 684, 11 So.2d 732, writ of certiorari denied in 1943, 319 U.S. 755, 63 S. Ct. 1168, 87 L.Ed. At page 593, in the same Volume (167 A.L.R.), it is......
  • Parsons v. State, 6 Div. 697.
    • United States
    • Supreme Court of Alabama
    • December 23, 1948
    ...home, they were material in connecting defendant with participation in the robbery, and admissible for that purpose.--Robinson v. State, 243 Ala. 684, 11 So.2d 732; Sweeney v. State, 25 Ala.App. 220, 143 So. 586, certiorari denied, 225 Ala. 381, 143 So. 588. Proposition numbered IV. We do n......
  • Brown v. State, 6 Div. 238
    • United States
    • Alabama Court of Appeals
    • June 18, 1946
    ...190 Ala. 14, 67 So. 431. It now appears with authoritative certainty that the charge no longer warrants approval. See, Robinson v. State, 243 Ala. 684, 11 So.2d 732; Wilson v. State, 243 Ala. 1, 8 So.2d 422; Daniels v. State, 243 Ala. 675, 11 So.2d 756; Mitchell v. State, 28 Ala.App. 119, 1......
  • Perkins v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 19, 1999
    ...So.2d 857 (1975). See Aaron v. State, 271 Ala. 70, 83, 122 So.2d 360 (1960)(cuts consistent with fingernail scratches); Robinson v. State, 243 Ala. 684, 690, 11 So.2d 732 (1943)(injuries could have been caused by having been struck with a hand or fist and by having been choked); Wilson v. S......
  • Request a trial to view additional results
52 cases
  • United States v. Lovely, Cr. No. 17107.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • May 14, 1948
    ...1943, 243 Ala. 675, 11 So.2d 756, writ of certiorari denied in 1943, 319 U.S. 755, 63 S.Ct. 1168, 87 L.Ed. 1708; Robinson v. State, 1943, 243 Ala. 684, 11 So.2d 732, writ of certiorari denied in 1943, 319 U.S. 755, 63 S. Ct. 1168, 87 L.Ed. At page 593, in the same Volume (167 A.L.R.), it is......
  • Parsons v. State, 6 Div. 697.
    • United States
    • Supreme Court of Alabama
    • December 23, 1948
    ...home, they were material in connecting defendant with participation in the robbery, and admissible for that purpose.--Robinson v. State, 243 Ala. 684, 11 So.2d 732; Sweeney v. State, 25 Ala.App. 220, 143 So. 586, certiorari denied, 225 Ala. 381, 143 So. 588. Proposition numbered IV. We do n......
  • Brown v. State, 6 Div. 238
    • United States
    • Alabama Court of Appeals
    • June 18, 1946
    ...190 Ala. 14, 67 So. 431. It now appears with authoritative certainty that the charge no longer warrants approval. See, Robinson v. State, 243 Ala. 684, 11 So.2d 732; Wilson v. State, 243 Ala. 1, 8 So.2d 422; Daniels v. State, 243 Ala. 675, 11 So.2d 756; Mitchell v. State, 28 Ala.App. 119, 1......
  • Perkins v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 19, 1999
    ...So.2d 857 (1975). See Aaron v. State, 271 Ala. 70, 83, 122 So.2d 360 (1960)(cuts consistent with fingernail scratches); Robinson v. State, 243 Ala. 684, 690, 11 So.2d 732 (1943)(injuries could have been caused by having been struck with a hand or fist and by having been choked); Wilson v. S......
  • Request a trial to view additional results

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