Shadle v. State

• Decision Date: 26 January 1967
• Docket Number: 1 Div. 323
• Parties: Lawrence W. SHADLE v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 538

194 So.2d 538

280 Ala. 379

Lawrence W. SHADLE v. STATE of Alabama.

1 Div. 323.

Supreme Court of Alabama.

Jan. 26, 1967.

Harry H. Riddick, Mobile, for appellant.

Richmond M. Flowers, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.

SIMPSON, Justice.

This is an appeal by Lawrence W. Shadle from the Circuit Court of Mobile County, where he was convicted by a jury of the crime of rape and sentenced to life imprisonment.

It is a case where the defendant does not deny that the crime was committed, but he does deny that it is he who is the guilty party.

Upon the trial of the case the evidence disclosed that on the afternoon of January 1, 1965, the victim, aged 12, and her 2 eleven year old companions were riding their bicycles in the Navco Shopping Center located at the intersection of Navco Road and McVay Drive in Mobile, Alabama. At the rear of the shopping center they found several coupons, of the type which, when placed in water, revealed a number on its face. They then proceeded to wash the coupons in a branch located directly behind the shopping center. Testimony from all three girls showed that a man whom they subsequently identified at the trial as the defendant, accosted them from behind, grabbed the victim by the arm and then by the use of threats forced the three girls into the woods for a distance of approximately 150 feet behind the shopping center. There he ordered all three girls to disrobe which they did. He then proceeded to have sexual relations with the victim in the presence of the other two girls. After this he left, taking the girls' clothing and telling them to count to 200 before moving. Shortly thereafter, the girls made their way through the woods to the home of one of the other two girls. Her mother telephoned the victim's mother. The police were summoned and each child gave a description of the man who had ravished the victim.

Some three weeks later the police picked up the defendant. Each of the three children was called and each was brought to the jail in Mobile and each separately made an identification of the defendant as the man who had committed the rape. One of the girls pointed out the defendant where he was sitting in a room, dressed in street clothes, amidst several detectives. The other two girls picked the defendant out of a six man line-up.

The defendant did not testify, but called six witnesses to establish an alibi. Their testimony was that the accused was visiting in his employer's home, a place far removed from the scene of the crime, during the period or just shortly before the attack took place, which made it improbable or impossible for him to have committed the attack. The defendant's wife testified that she was with her husband while they visited his employer and also while they visited a neighbor shortly thereafter, whose abode was likewise a considerable distance from the scene of the crime.

The defendant was arrested in the same neighborhood as that in which the rape occurred.

Counsel for the defendant assigns and argues 19 errors. We have not confined ourselves to a study of these points alone, but in accordance with Code of Ala. 1940, Title 15, § 389, we have examined the entire record for reversible error.

Defendant first argues the trial court erred in refusing the following requested charge:

'I charge you gentlemen of the jury, that the Defendant sets up an alibi in this case, and the burden of proof is not changed when he undertakes to prove it, and, if by reason of the evidence in relation to such alibi, when considered with all other evidence, the jury entertain a reasonable doubt as to the Defendant's guilt, he should be acquitted, although you may not be able to find that the said alibi has been fully proven.'

Without deciding what other defects might exist in connection with this charge and without deciding whether it might be otherwise error to refute, it was not error here for the simple reason that the court's oral charge expressly covered the question of burden of proof, reasonable doubt, the law regarding inconsistent testimony, and in addition, the court gave the following charge at the request of the defendant which adequately explained to the jury the law on the issue of alibi:

'I charge you gentlemen of the jury, that evidence to support an alibi should be weighed, considered by the jury just as other evidence and in connection with all the other evidence, and, if, upon consideration of the whole evidence there is a reasonable doubt of defendant's guilt, he should be acquitted.'

It was not error either to refuse defendant's requested charges numbered 3 and 6 since the proper hypothesis for a requested charge in a criminal prosecution is rested on 'belief' from the evidence, and not 'reasonably satisfied'. Thus the refusal of the charges not so hypothesized does not constitute reversible error. Garrett v. State, 268 Ala. 299, 105 So.2d 541; Payne v. State, 261 Ala. 397, 74 So.2d 630; Wesson v. State, 251 Ala. 33, 36 So.2d 361. Then, too, charge number 6 contained several misspelled words. The appellant says in reply brief that the spelling errors were made in copying the charge in the transcript. This may well be true, but the burden to file a correct record is on the appellant. Rushing v. State, 40 Ala.App. 361, 113 So.2d 527. If the transcript is incorrect, the proper mode of correction is by a writ of certiorari, not by an ex parte statement in the brief of counsel. Morris v. State, 268 Ala. 60, 104 So.2d 810; Cash v. Usrey, 278 Ala. 313, 178 So.2d 91; Code 1940, Title 7, § 827(1), 824(4).

The defendant's assignments of error numbers 4 through 10 are based on the trial court's refusal to give 7 requested charges which seek to instruct the jury on the presumption of innocence and the doctrine of reasonable doubt. We feel these matters were substantially and fairly covered in the court's oral charge and in defendant's charge number 14 which was given. Code of Ala. 1940, Title 7, § 273.

Defendant next argues by assignment of error 11 that the court below committed reversible error when it sustained an objection to the following question asked by defendant's counsel to the victim's mother:

'You got the idea from your conversation that the police thought that they had the man?'

The defendant sought to show by this question that the witness had conveyed to her daughter the belief that the police thought they had the attacker in custody, and that this so operated on the daughter's mind she being of tender age and impressionable, so that she was mentally conditioned to pick a man out of the line-up who looked like the assailant.

We agree that the jury was entitled to know the conditions under which the three girls identified the defendant, but not at the expense of illegal evidence. The record shows that the defendant was allowed to put in evidence the conversation between the witness and the police. But the question which inquired of the witness what the police 'thought', and asked her to express her 'idea' from the conversation was patently objectionable, for in this state a witness may not testify to the uncommunicated intent of another (Holmes v. Holmes, 212 Ala. 597, 103 So. 884; Casualty Reciprocal Exchange v. Wallace, Ala., 189 So.2d 861); nor may a witness testify to his own intent, motive, reason, belief, or the like. Casualty Reciprocal Exchange v. Wallace, supra; McElroy, 'The Law of Evidence in Alabama', 2d Ed., Vol. 1, § 102.07, and cases there cited.

Assignment of error 12 is predicated on the action of the trial court in denying defendant's motion for a mistrial based on the cross-examination by defendant of a police officer. The officer was being questioned about a composite made from descriptions given by the three little girls. When asked by the defendant's lawyer to read what the composite said, the officer answered: 'Well, this composite was made in two separate cases'. The trial court denied defendant's timely motion for a mistrial. The defendant argues in brief that the answer indicated or implied that the accused was involved in another case besides that for which he was being tried. Of course, it is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury's ability to decide the defendant...