Summers v. State, 7 Div. 945.

• Decision Date: 13 May 1948
• Docket Number: 7 Div. 945.
• Citation: 251 Ala. 38,36 So.2d 574
• Parties: SUMMERS et al. v. STATE.
• Court: Alabama Supreme Court

36 So.2d 574

251 Ala. 38

SUMMERS et al. v. STATE.

7 Div. 945.

Supreme Court of Alabama

May 13, 1948

Rehearing Denied June 30, 1948.

A A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty Gen., for the petition.

Merrill, Merrill & Vardaman, of Anniston opposed.

BROWN Justice.

The defendants Conrad Summers and Horace T. Pope were indicted by a grand jury empaneled in the Circuit Court of Calhoun County for the offense of rape committed on the person of Ruby Williams. After severance on motion of state was granted, by consent defendants were jointly tried and were convicted by a petit jury as charged in the indictment. The punishment of Summers was fixed by the jury at imprisonment in the penitentiary for a term of ten years and that of Horace T. Pope at imprisonment in the penitentiary for a term of fifteen years. After judgments of conviction and sentences duly entered in accordance with the verdict, both appealed to the Court of Appeals where said judgments were reversed and the causes remanded for a new trial. The sole basis for the reversal is stated in the opinion of the Court of Appeals, 36 So.2d 572, as follows:

'The prosecutrix testified both at a preliminary hearing and at the trial below. As a witness in the trial below she testified that she had never before been out to the Holly Springs Church, the locus of the alleged offense; that she thought they got to the church shortly before nine o'clock and that she had told the defendants she had to be home by nine, but that she did not ask anyone what time it was when they got to the church; that during her struggle Conrad Summers had his hand over her mouth and his fingers in her mouth in an attempt to stifle her outcries; and that she bit Summers' fingers.

'In an attempt to impeach this witness as to the above portions of her testimony, a proper predicate was created for the impeachment of the testimony that she had not testified to facts different from the above at the preliminary hearing, or that she did not remember so testifying.

'Later in the trial and for the purpose of impeachment as to the above testimony, the defendants offered to introduce into evidence excerpts from the testimony of the prosecutrix at the preliminary hearing after such excerpts had been checked and certified as correct by the official court reporter who took such testimony. The court sustained the States' objection to such evidence. In this connection the record shows the following:

"Mr. Vardaman: The defense offers to have the Court Reporter check the transcript written out on several pieces of paper as to being true and correct copies of the excerpts read to the witness, Ruby Williams, on cross examination, and upon same being certified as being true by the Court Reporter, introduce them in evidence.

"Mr. Cockrell: Object to that unless they introduce the whole record.

"The Court: I will sustain the objection and will give you permission to offer in evidence----

"Mr. Cockrell: (Interrupting) You mean you will admit in evidence any pages they refer to?

"The Court: The official transcript, but not any excerpts.

"Mr. Vardaman: Will Your Honor permit us to introduce the pages?

"The Court: No. You may mark any section of it and note the pages you want to offer, and offer the whole transcript.

"Mr. Merrill: We except.

"Mr. Vardaman: We rest.

"The Court: Any rebuttal?

"Mr. Cockrell: Yes, sir.'

'Thereafter the defendants called Mr. Thomas V. Barry, the official Court reporter for the Seventh Judicial Circuit. Mr. Barry testified that he took down the testimony at the preliminary hearing of these two defendants. He was then asked to refer to his shorthand notes taken as such hearing, for the purpose of refreshing his recollection. An attempt was then made to show by this witness that the prosecutrix had testified differently at the preliminary hearing from the testimony given by her at the trial concerning the matters above mentioned. The court sustained the State's objection to all such questions.

'In our opinion the above evidence was material to the issues involved in this case. The strength or weakness of its probative force does not affect its competency. The testimony of the prosecutrix on the above points being material, the defendant, after establishing the proper predicate for impeachment, as they did, should have been allowed to offer her testimony at the preliminary hearing which would tend to impeach her testimony at the trial below. Stewart v. State, 27 Ala.App. 315, 172 So. 675; Davis v. State, 30 Ala.App. 562, 10 So.2d 35; Mullins v. State, 31 Ala.App.

571, 19 So.2d 845; Pearce v. State, 226 Ala. 436, 147 So. 617.

'It is allowable for any competent person who heard the former testimony of a witness sought to be impeached to testify as to what was the former testimony.--Woods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681, 27 A.L.R. 834. Nor is his competency affected by the fact that he may first have refreshed his recollection from notes made during the former hearing.--Morris v. State, 23 Ala.App. 448, 126 So. 612. Furthermore, only such portions of the former testimony as tend to contradict the testimony at a second hearing are admissible.--Woods case, supra; Tyler v. State, 19 Ala.App. 380, 97 So. 573; Ex parte State ex rel. Davis, 210 Ala. 96, 97 So. 573. Certainly the entire record of the preliminary hearing was not admissible under the defendants' attempt to impeach the proxecutrix as to certain portions of her testimony, though the State would have had the right to introduce any further portion of her testimony at the preliminary hearing that tended to clarify or explain that portion of her testimony sought to be impeached. It is our conclusion therefore that the trial court erred in sustaining the State's objections to the questions of the defendants seeking to impeach the testimony of prosecutrix given at the trial below. * * *'

On the state's application for the writ of certiorari to review said rulings the writ of certiorari was granted and the case set down for oral argument under Rule 44, Supreme Court Practice. Code of 1940, Tit. 7, p. 88.

On oral argument at the bar the statement in the opinion of the Court of Appeals set out above was clarified and in the light of the argument it is permissible for us to examine the record for a more complete understanding of these features of the cases treated by the Court of Appeals and look at the predicate laid for the impeachment of the witnesses. John E. Ballenger Const. Co. v. Joe F. Walters Const. Co., 28 Ala.App. 353, 184 So. 270; Id., 236 Ala. 548, 184 So. 275; Brown v. State, 249 Ala. 5, 31 So.2d 681; Mutual Savings Life Ins. Co. v. Osborne, 247 Ala. 252, 23 So.2d 867.

The attorney general, aided by the solicitor of the circuit in which this case was tried, in argument strenuously insisted that in the absence of a showing that the testimony at the preliminary hearing was not reduced to writing by the committing magistrate or under his supervision and approval and signed by the witnesses, as required by § 135, Title 15, Code of 1940, or its absence otherwise accounted for, the transcript produced by the defendants on the trial was subject to the objection that it was not the best evidence of what the witnesses testified to on the preliminary trial and it was not permissible to use the same to lay the predicate to impeach the witness nor to support any such predicate laid. That the use of such unofficial transcript for any purpose violates the best evidence rule as laid down in the authorities. Davis v. State, 168 Ala. 53, 52 So. 939; Blanks v. State, 30 Ala.App. 519, 8 So.2d 450; Jones v. State, 30 Ala.App. 360, 6 So.2d 26.

In the light of the authorities cited, the court is of the opinion that this contention of the state should be sustained, and we hold that the court did not err in rejecting the transcript which was brought into court by the defendants, nor in sustaining objections to parol testimony offered by the defendants to meet the predicate laid in the instant case.

On this point all of the Justices concur.

The writer, however, is further of opinion that inasmuch as the defendants brought into court a transcript of the testimony of the prosecutrix taken by the court reporter on the preliminary hearing, though not official, and that defendants used the same in laying the predicate to impeach the witness and to sustain that predicate, it was fair to the witness and to the jury for said transcript to be used to meet the predicate, and the defendants could not resort to parol testimony or excerpts copied from the transcript to sustain the predicate.

Looking to the record, I find that the following occurred in laying the predicate: 'Let's see if they did--'Did you bite his hand when he put it in your mouth' and you answered 'No.' And then I asked you 'Why didn't you?' and you said 'He had his hand like this.' And 'And you didn't try to bite his hands?' and you answered 'No, I was screaming.' 'How do you mean he had his hands in your mouth?' Answer 'He had them on my mouth like this (demonstrating).' 'And you never tried to bite his hands?' and you answered 'No.' * * *. * * *

'Q. But you told us on the preliminary hearing that you didn't? A. I don't know--I did bite his fingers.

'Q. Can you read? A. Yes, I can read.

'Q. Will you start right here and read and tell me whether you said you did bite them or not? (Hands transcript of preliminary hearing to witness.) Now, what does that say? A. It says I said it.

'Q. Did you or not bite them? A. Yes, it says that.

'Q. What did he do when you bit his fingers? A. I don't know--they were just fighting and cursing me.

'Q. Did you make the blood come out of them? A. I don't know, it was dark.

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