Sanders v. State, 6 Div. 82
| Decision Date | 08 February 1972 |
| Docket Number | 6 Div. 82 |
| Citation | 48 Ala.App. 589,266 So.2d 797 |
| Court | Alabama Court of Criminal Appeals |
| Parties | Tommy William SANDERS, alias v. STATE. |
Parker, Wilkinson & Montgomery, William T. Kominos, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.
The appellant appeals from a conviction by the Circuit Court of Jefferson County of robbery with a sentence of ten years imprisonment.
On the night of March 14, 1969, Smith T. Murphy was driving his automobile at the intersection of Avenue F. and 5th May in Birmingham when something struck his automobile as it was passing through the intersection. He immediately stopped, got out of his car and was confronted by Jasper Hall and Melvin Pye. After a few words between the parties, it appears that Hall and Pye grabbed Murphy, overpowered him and stabbed him several times as he was wrestled to the ground. At the time, one of the two took from Murphy's pocket his billfold containing a five dollar bill, along with some personal papers. During the stabbing, or just afterwards, under some tendencies of the testimony, appellant ran up to the parties above mentioned and sat on the feet of Murphy shortly before the billfold was takenBut Murphy did not see appellant at all. Afterwards Hall and Pye left the scene down a side street. However, before leaving it appears that Hall attacked one of the State's witnesses who had witnessed the entire incident and had run up on the porch of a residence nearby to have someone call for assistance.
At the time of the encounter, State's witnesses Watson Brown and Charles James Jones walked up to the opposite side of the street where the difficulty was taking place and saw the appellant at the scene of the encounter. Immediately after Hall and Pye had left the scene with the billfold of the victim, the appellant raised Murphy up and attempted to find out whether he was conscious or not. The appellant stayed around the scene of the difficulty for a few minutes before he and the other witnesses left.
The appellant admitted his presence at the scene of the difficulty but insisted that he went up to the parties with the intention of assisting Murphy and he had no part in the robbery; that he knew nothing of it beforehand and received none of the proceeds; but that he was merely an onlooker who attempted to do what he could to stop Hall and Pye in their attack upon Murphy. He did not try to hold Murphy down. He claimed he did not try to stop Hall from attacking State's witness Watson after Watson had gone up on the porch of the nearby house to call for the police. This is an outline of the evidence.
At the conclusion of the State's testimony the appellant made a motion to exclude the evidence, which motion was overruled.
After the verdict of the jury, appellant also filed a motion for a new trial, which was also overruled by the court.
From the facts above set out, a jury question was presented.
The appellant, in brief, strenuously argues that the court committed reversible error in allowing the State's witness Charles James Jones to testify over the objection of the appellant that the witness thought the appellant was attempting to help Jasper Hall and Melvin Pye take the money from the victim. In support of this contention the appellant insists that the witness could not testify as to what he thought and understood another person was doing, since it is violative of the opinion rule as being an attempt to determine the intent or purpose of another person, which is for the jury, after considering the facts. This is a correct statement of the law and is supported by many cases from the appellate courts of Alabama, including the following: Stewart v. State, 27 Ala.App. 315, 172 So. 675; Prince v. State, 215 Ala. 276, 110 So. 407; Deloney v. State, 225 Ala. 65, 142 So. 432; and Hembree v. State, 20 Ala.App. 181, 101 So. 221.
The following excerpts from the transcript indicate the questions and answers on re-direct examination of State's witness Charles James Jones involving this question:
'Now I am not trying to dissuade you from the subject matter, but if you will just ask a question and put it as a question I will let you question him.
However, on cross-examination of Charles James Jones by the appellant, the following appears:
'A. Huh?
'Q. Tommy Sanders was trying to help Mr. Murphy, wasn't he?
Still further, on cross-examination of Jones by the appellant:
The rule with regard to opinion testimony above referred to no longer applies in a case where the illegal evidence complained of is offered to rebut illegal evidence offered by the adversary, whether objected to or not.
The testimony quoted above shows clearly that the question of the intent of appellant in his actions during the difficulty was first testified to and brought out on cross-examination by the appellant and that the testimony objected to by the appellant was clearly in rebuttal of that first brought out by appellant.
It has been held many times that irrelevant, incompetent or illegal testimony may be admitted to rebut illegal testimony even though it was not objected to. Cunningham v. Lowery, 45 Ala.App. 700, 236 So.2d 709; St. Clair County v. Bukacek, 272 Ala. 323, 131 So.2d 683. See also The Law of Evidence in Alabama by Judge McElroy, Vol. 1, § 14--01, on page 13 where many cases enunciating this principle are set out.
Therefore, the action of the appellant in first bringing in illegal and inadmissible testimony has the legal effect of cutting him off from objection to a rebuttal of that testimony by the State.
While appellant was on the witness stand during cross-examination he was asked by the district attorney if he had been arrested for breach of the peace by assault and was allowed to answer over the objection that he had been. The appellant insists that therein the court committed error under the general rule obtaining in Alabama that evidence of a distinct and different offense is not admissible in the trial of a person accused of an offense. Brasher v. State, 249 Ala. 96, 30 So.2d 31.
The court recognizes this to be the law but upon an examination of the record in this case it appears that the appellant's counsel, on direct examination, asked the following question, 'Have you ever been in trouble before?', and received the answer, 'no, sir.' The testimony of the former arrest of the appellant was properly allowed by the court on rebuttal to the...
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