Smith v. State

• Decision Date: 06 January 1953
• Docket Number: 6 Div. 547
• Citation: 36 Ala.App. 646,62 So.2d 473
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

Page 473

62 So.2d 473

36 Ala.App. 646

SMITH v. STATE.

6 Div. 547.

Court of Appeals of Alabama.

Jan. 6, 1953.

Skidmore & Finnell, Tuscaloosa, for appellant.

Si Garrett, Atty. Gen., and Maury D. Smith, Asst. Atty. Gen., for the State.

Charge 1 (pertinently similar to charges 2 and 3), refused to defendant, is as follows:

'1. I charge you, Gentlemen of the Jury that in this case as in all criminal cases the defendant is presumed innocent until proven guilty and that [if] by any reasonable construction of the evidence in this case some one other than the defendant could have or might have done the things which the defendant is charged then it is your duty to give the defendant the benefit of the doubt and find him not guilty.'

CARR, Presiding Judge.

The indictment in this case is framed in two counts. The first charges manufacturing whiskey and the second possessing a still.

The court sustained the demurrers to the first count and overruled them as to the second.

There is no merit in the insistence that the court was in error in overruling the demurrers. The second count is in code form. Title 15, Sec. 259, Subsec. 76, Code 1940; Masters v. State, 18 Ala.App. 614, 94 So. 249; Neville v. State, 23 Ala.App. 121, 123 So. 895; Aldridge v. State, 20 Ala.App. 456, 102 So. 785.

The state anchored its prosecution on the testimony of the two officers who raided the still. According to their testimony they observed the appellant and two other persons at the still place for about fifteen or twenty minutes. During this time each of the trio was occupied in doing various things in preparation for the manufacture of whiskey.

The defendant did not testify at the trial below nor offer any evidence in his behalf.

Appellant's attorney interposed many objections during the progress of the trial. We will consider the questions presented in this manner which in our view merit comment.

It was within the sound discretion of the judge to allow one of the state's witnesses to be excused from the rule. Cobb v. State, 20 Ala.App. 542, 103 So. 387; McKenzie v. State, 26 Ala.App. 295, 158 So. 773.

What the defendant and his associates did at the still, while the officers were hidden and waiting, and a description of all the articles found at the place constituted a part of the res gestae. Traffenstedt v. State, 34 Ala.App. 273, 38 So.2d 619; Aldridge v. State, supra; Bruce v. State, 22 Ala.App. 440, 116 So. 511.

Each of the state's witnesses had been engaged in raiding illicit whiskey stills for many years. It was established that during this time they had become acquainted with the methods employed and the parts and equipment used in the manufacture of whiskey. Clearly they were qualified to explain to the court and jury the use made of the various parts and to state that when these were assembled the outfit was suitable for the purpose of manufacturing whiskey. Traffenstedt v. State, supra; Weeks v. State, 21 Ala.App. 397, 109 So. 117; Copeland v. State, 27 Ala.App. 405, 173 So. 407.

During the cross examination of one of the officers the record shows:

'Q. Did you know this boy, Jack, here (indicating), before this occasion? A. I had caught him two or three times before on stills.

'Mr. Skidmore: If Your Honor please we ask for a mistrial on this case on the ground of that statement. It was not responsive, it is highly prejudicial and we ask for a mistrial in this case, if Your Honor please. This statement is of such a nature that it cannot be removed from the Jury's mind, so as to give this defendant a free and impartial trial.

'The Court: Gentlemen of the Jury you will not consider that statement, he had caught the Defendant at other times at stills. In passing on this case be sure you don't consider that statement, that is excluded by the Court and do not consider that part of it at all in making up a verdict in this case, and I will overrule a motion for a mistrial.

'Mr. Skidmore: We except with Your Honor please and we submit that Your Honor has done everything that a Judge could do to eradicate that statement from the minds of the Jury but we submit that a statement of that kind can not be eradicated from the Jury's mind and we respectfully except to Your Honor's ruling.'

Appellant's counsel urgently insists in brief that we should predicate error on account of the court's refusal to declare a mistrial.

Every person charged with a crime should be afforded a fair trial. This is a response to the humane provisions of our criminal law.

In the case of Stephens v. State, 252 Ala. 183, 40 So.2d 90, 92, Justice Lawson had this to say:

'A mistrial will not be ordered on the motion of the defendant on account of illegal questions asked by the solicitor, where the court sustained the defendant's objection, unless it clearly appears that the rights of the defendant have been so prejudiced as to render a fair trial a matter of grave doubt.'

The same test should be applied if the prejudicial matter arose on account of a voluntary statement of a witness.

In the fairly recent case of Miller v. State, 34 Ala.App. 483, 41 So.2d 432, 434, we reviewed a question presented on the basis of a somewhat analogous circumstance. We held that the voluntary statement, 'We had information about this nigger bootlegging down there', when properly and forcefully excluded from the jury's consideration, did not deprive the accused of a fair trial.

In the case of Mosely v. State, 19 Ala.App. 335, 97 So. 247, 248, a witness volunteered this statement: 'We have had Molly Mosely (appellant) in every court for three years.' We concluded that the clear, emphatic, and explicit instruction given the jury by the trial judge removed the injurious implications, and we did not declare error on the action of the court in refusing to order a mistrial.

Counsel in brief lays much stress on the conclusions reached by this court in the case of Emerson v. State, 30 Ala.App. 248, 4 So.2d 183, 185.

The evidence in the case was in sharp conflict. Presiding Judge Bricken, writing for the court, observed that the solicitor 'upon several occasions undertook to inject into this case foreign and adverse matters not within any of the issues involved.'

The distinguished jurist was impressed that on account of the injection of these prejudicial matters the accused was denied the right to a fair and impartial trial.

The opinion points out specifically the voluntary statement of a character witness to wit: 'He is known as a whiskey seller and gambler.' We predicated reversible error on the failure of the trial court to grant the motion for a mistrial on account of the assertion.

In the case at bar the reply of instant concern was not as harmful and accusatory as the statement in the Emerson case.

In the instant case the guilt of the defendant as charged was established by undisputed evidence.

We are clear to the conclusion that the jury was in no manner influenced in their verdict by the voluntary statement of the officer.

Counsel also argues that the holdings in the cases of Cobb v. State, 20 Ala.App. 542, 103 So. 387, and Mitchell v. State, 22 Ala.App. 300, 115 So. 149, if followed, would necessitate a reversal of the judgment below in the instant case.

We think that because of the distinguishing factual...