Smith v. State, 6 Div. 439.

• Citation: 248 Ala. 363,27 So.2d 495
• Decision Date: 25 July 1946
• Docket Number: 6 Div. 439.
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

27 So.2d 495

248 Ala. 363

SMITH v. STATE.

6 Div. 439.

Supreme Court of Alabama

July 25, 1946

Rehearing Denied Oct. 24, 1946.

E L. Dodson, of Tuscaloosa, for appellant.

Wm. N. McQueen, Atty. Gen., and Jas. T. Hardin Asst. Atty. Gen., for the State.

SIMPSON Justice.

This is the second conviction of rape and the death penalty for the defendant. The first appeal is reported in 247 Ala. 354, 24 So.2d 546. The defendant was a twenty four year old negro and the victim, a middle-aged white woman.

In deference to the insistence of his appointed counsel that a new trial should be granted, we will observe that, although accused denied the charge, the evidence adduced entirely sufficed to warrant the jury's verdict. A little of the evidence will be noticed to sustain this conclusion. Soon after the crime, the accused was apprehended from a very positive identification and description furnished by the victim and, when he was brought before her, she was then, as well as at the two successive trials, certain about the accuracy of this identification. Many other reputable witnesses in the neighborhood also placed him at or near the scene at the time of the attack, and his vacillating assertions, in support of an alibi, to various interrogators after his arrest, together with his suspicious movements on that day, are also strong corroborating factors. To conclude the damaging evidence against him was the testimony of the State toxicological expert that an examination of his undergarment revealed the presence there of semen and a hair of a white person. On these, and other pertinent facts not necessary to detail, the conclusion of guilt reached by the jury will not be disturbed on appellate review.

The insistence is again made that the clothes of the victim, held legal evidence in the first trial (supra, 24 So.2d at page 548 [11]), were erroneously admitted.

It is only when the introduction of garments or other demonstrative evidence would tend to corroborate or elucidate no material inquiry that such articles have been ruled inadmissible and declared prejudicially erroneous if tending to inflame the jury. Boyette v. State, 215 Ala. 472, 110 So. 812; Moore v. State, 30 Ala.App. 552, 557(10), 9 So.2d 146, and cases cited; Kabase v. State, 31 Ala.App 77, 12 So.2d 758.

If, however, it conduces to the proof of some pertinent hypothesis, which if sustained would bear probatively on an issue on trial, such evidence is admissible. 6 Ala.Dig., Criminal Law, k404(4); Rollings v. State, 160 Ala. 82, 49 So. 329.

And its admissibility is not to be challenged if such is its effect, though it be only cumulative and have a tendency to inflame the jury. Reedy v. State, 246 Ala. 363(10), 20 So.2d 528; Puckett v. State, 213 Ala. 383(4), 105 So. 211; Robinson v. State, 243 Ala. 684(5), 11 So.2d 732.

These principles control the introduction in evidence of the clothing of the prosecutrix and our previous holding, ruling them admissible, is reaffirmed.

Deputy Sheriff Chism testified that while the defendant was under arrest, the following conversation took place between defendant and himself: 'I (Chism) asked him the question if he thought that we didn't know that he was guilty of the crime that he was charged with, and he didn't say anything. And, then, I said to him, I says, 'You know that God knows you did it, don't you?' and he says, 'I sure do.' Then, I told him, I says, 'Well, Johnnie B., the best thing that I think you can do is to get down on your knees and tell God about it.' He says, 'I have already prayed to him twice,' and I asked him what he said to the Lord, and he said he told the Lord that if he would get him out of this this time that he would never do it any more. And that is about the only statement he made that night.'

It is argued, with much earnestness, that defendant's statement was confessory and that, although testified by the witness to have been voluntary, the circumstances of its rendition, in fact, show it to have been involuntary.

It hardly needs to be restated that, though the defendant was at the time a prisoner and in custody of an officer or officers of the law, while a circumstance to be considered, this of itself does not render a confession involuntary, although made to or in the presence of the officer and in response to his questioning. Lester v. State, 170 Ala. 36, 54 So. 175; McAdams v. State, 216 Ala. 659, 114 So. 39.

The circumstances here reveal the statement to have been made by the defendant free from duress or compulsion, or any hope of reward or benefit as respects the crime charged. The witness was alone with defendant and testified that neither did he, nor any one else, 'in the defendant's hearing or presence, make any threats against him, or hold out any hope of reward or inducement or promises to him to get him to make a statement.'

Substantially this same evidence, with a similar predicate, was given consideration in the first case, and it was there held to be proper under the rule that 'if a confession is made in response to a promise of collateral benefit, with no assurance of benefit to the defendant in respect to the crime under inquiry, such promise will not suffice to show that the confession was not voluntary when it otherwise appears to be voluntary. McCullars v. State, 208 Ala. 182, 94 So. 55; Curry v. State, 203 Ala. 239, 82 So. 489; Hunt v. State, 135 Ala. 1, 33 So. 329; Huffman v. State, 130 Ala. 89, 30 So. 394.' Smith case, supra, 24 So.2d at page 548 (7).

The propriety of this character...