Smitherman v. State

• Decision Date: 13 January 1948
• Docket Number: 5 Div. 244.
• Citation: 33 Ala.App. 316,33 So.2d 396
• Parties: SMITHERMAN v. STATE.
• Court: Alabama Court of Appeals

33 So.2d 396

33 Ala.App. 316

SMITHERMAN v. STATE.

5 Div. 244.

Alabama Court of Appeals

January 13, 1948

Omar L. Reynolds and Reynolds & Reynolds all of Clanton, for appellant.

A. A. Carmichael, Atty. Gen., and L. E. Barton Asst. Atty. Gen., for the State.

The following charges were refused to defendant:

'6. The court charges the jury that if you are reasonably satisfied from the evidence in this case that the defendant was at some other place and was not at Billie Branch, at the time and place testified to by the State's witnesses then, under the law, it will be your duty to find the defendant not guilty.

'5C. The Court charges the jury that if you are reasonably satisfied from all the evidence in this case that the defendant was not present at Billie Branch, at the time and on the occasion as testified to by the State witnesses, then it will be your duty, under the law, to find the defendant not guilty.'

CARR, Judge.

This appeal followed a conviction in the court below for a violation of Title 8, Sec. 79, Code 1940.

The prosecution had its inception in the Justice of the Peace Court. It is contended that there is a fatal variance between the affidavit filed in the primary court and the complaint filed in the circuit court. The latter followed the language of the code section, supra, and the affidavit is:

'Before me M. D. Foshee, N. P. Ex Off J. P. in and for said County personally appeared Alton Boulware, who being duly sworn deposes and says, on oath, that within twelve months before making this affidavit in said County one Tom Smitherman did take, catch, capture, or kill, or attempt to take, catch, capture, or kill fish in public fresh waters, in the State of Alabama, Chilton County, by the use of giant powder, dynamite, or other explosive or substance, which did kill fish or render them incapable of self protection, contrary to law and against the peace and dignity of the State of Alabama.'

A comparison of the affidavit with the provisions of the statute will suffice to illustrate our view that the position here urged is not well taken. Clonts v. State, 19 Ala.App. 130, 95 So. 562; Waldrop v. State, 32 Ala.App. 496, 27 So.2d 264.

The situation here is in no manner comparable to that in Hayes v. State, Ala.App., 31 So.2d 306, a case recently decided by this court in which the opinion was written by our presiding judge.

The demurrers basing other grounds were properly overruled. Harris v. State, 32 Ala.App. 519, 27 So.2d 794; Dean v. State, 240 Ala. 8, 197 So. 53.

The warrant for the arrest of the appellant is dated February 29, 1944. Over timely objections of defendant's counsel, the trial court allowed the State to exhibit in evidence 'Application for Vendor's, Purchaser's, or Foreman's License for Explosives or the Ingredients Thereof.' Proof was made by the Circuit Court Clerk of Chilton County that on June 25, 1942, the appellant made application to him as indicated just above.

The evidence discloses that the complaining crime was committed a few days prior to the issuing date of the warrant. It will be observed, therefore, that twenty months intervened between the date on which application was made for privilege to purchase explosives and the day of the alleged offense.

The document of instant concern may be aptly classed as evidence relating to 'preparations and preceding circumstances.' Its admissibility cannot be denied nor controverted unless because of the remoteness of time its immateriality is apparent.

'Generally, evidence of the conduct of accused shortly before the offense which is inconsistent with his innocence is relevant and admissible. Thus evidence of preparation by accused for the commission of the crime charged is relevant and admissible.' (Emphasis ours.) 22 C.J.S., Criminal Law, § 606.

We are faced squarely with the task of determining whether or not the exhibit in question related to a transaction too far removed in point of time to the main event to be material and admissible in the case at bar.

Ordinarily, remoteness of time affects the weight and probative value of evidence rather than its admissibility. It rests largely in the enlightened discretion of the court whether or not such proof will be allowed. Remoteness has regard also to factors and considerations other than mere lapse of time. It results, therefore, that it is practically impossible and not at all accurate to attempt to state a fixed rule or standard with particular reference to the time element. Of course it can be said with certainty that the tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main event. Notwithstanding evidence may be logically relevant, its admissibility does not follow unless it has...