Thomas v. State

• Decision Date: 06 March 1923
• Docket Number: 3 Div. 435.
• Citation: 96 So. 182,19 Ala.App. 187
• Parties: THOMAS v. STATE.
• Court: Alabama Court of Appeals

96 So. 182

19 Ala.App. 187

THOMAS v. STATE.

3 Div. 435.

Court of Appeals of Alabama

March 6, 1923

Rehearing Denied April 3, 1923.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

J. T Thomas, alias J. T. Latham, was convicted of an assault, and he appeals. Affirmed.

Brassell Brassell & Brassell, of Montgomery, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

The defendant in this case was charged with having violated the person of a 10 year old girl by feeling of her person in a vulgar and indecent manner and against her will, and the evidence for the state makes out the case in such detail as to warrant the remark of the solicitor, as a conclusion from the evidence, that defendant was a moral pervert, and, it being in evidence that defendant was a married man, the court did not err in overruling defendant's motion to exclude the remark. The other remarks of the solicitor were on motion excluded.

The defendant having been arrested at the complaint of the child, on a description of a man given by her, it was proper for the state to show by the officer that he took defendant to the home of the child, that she might see him. Besides, this testimony was already in without objection. Franklin v. State, 18 Ala. App. 374, 92 So. 526.

Proper predicate having been laid, statements of an incriminating nature were properly admitted. 4 Michie's Dig. p. 175, par. 251 (3).

The fact that when defendant was out of employment he stayed at home most of the time was immaterial and properly excluded.

The question asked defendant on cross-examination, "After they identified you and after you were tried, didn't you turn to Judge Thorington and say, 'Judge, what they say is true; I am guilty'?" was admissible on cross-examination to show an admission of guilt, and, if denial was made as a predicate for impeachment purposes, by the testimony of those who were present at the trial in the inferior court.

The fact that defendant was not represented by counsel in the inferior court was testimony in the interest of defendant and of which he could not complain. Besides, this testimony had already and was afterwards given without objection.

As to what Pauline Solomon testified to in the inferior court with reference to the identification of defendant would as an independent fact have been inadmissible, but, in the connection in which it was given, it became a part of the admission of defendant of his guilt. In other words, this evidence discloses an accusation made by the little girl in the presence of defendant and his admission of its truth, which, if true, was material and proper.

The original warrant was admissible as tending to fix the time at which the crime was committed.

Much has been said in brief of counsel in criticism of the testimony of Judge Thorington, judge of the inferior court before whom this defendant was first tried, and of the testimony of Avant, the city detective making the arrest, both of whom testified to unqualified confessions of defendant made at different times. There is nothing in the testimony to warrant the criticism or to indicate a motive in giving their testimony other than that of officers of the law in the discharge of their duty. The one is a judicial officer, learned in the law, elected by the people, and sworn to uphold the Constitution and laws of the state. The other is not the ordinary hired detective, whose livelihood depends on convictions obtained by his efforts and testimony, but is selected by the city government as a man worthy and courageous enough to guard the welfare of the people of the community. We see...