White v. State

• Decision Date: 15 March 1960
• Parties: James Edward WHITE v. STATE. 6. Div. 663.
• Court: Alabama Court of Appeals

Page 179

123 So.2d 179

41 Ala.App. 54

James Edward WHITE v. STATE.

6. Div. 663.

Court of Appeals of Alabama.

March 15, 1960.

Rehearing Denied Aug. 16, 1960.

A. K. Callahan and Geo. W. Nichols, Jr., Tuscaloosa, for appellant.

MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

CATES, Judge.

White takes this appeal from his conviction in the Tuscaloosa Circuit Court of voluntary manslaughter. He was sentenced to two years imprisonment for killing Alton N. Beasley in an automobile collision.

White filed a motion for new trial, assigning forty-one grounds. The motion was overruled.

The prosecution's version of Beasley's death runs:

Alongside State Highway 69 south of Tuscaloosa, there is a gasoline filling station. Mr. R. A. Barks ran an adjoining cafe.

August 23, 1958, about nine o'clock at night, Mr. Barks saw White driving an automobile in a private drive, first at about five to ten miles an hour. As White neared the road, Barks judged he was going about thirty-five miles per hour. Then he heard White's Ford collide with a Mercury station wagon in which Beasley was riding.

One State witness estimated White's speed at thirty-five miles per hour, and another described it as 'high speed.'

The cars collided in a forty-mile speed zone. There were some stores on the roadside.

A number of photographs were introduced in evidence and some of the witnesses illustrated their testimony by referring to them. One State witness was asked to 'point out up there * * * just where you saw that car. * * * You can use that pointer.'

The omission of photographs and blackboard drawings from the appellate record precludes our review as to the sufficiency of the evidence. Hicks v. State, 21 Ala.App. 335, 108 So. 612; Arrick v. Fanning, 35 Ala.App. 409, 47 So.2d 708; Gilliam v. State, 38 Ala.App. 420, 89 So.2d 584; Graham v. State, Ala.App., 115 So.2d 289; Jones, Alabama Jury Instructions, § 759.

White's first contention is that the solicitor, by conduct and questions, created an atmosphere of ineradicable prejudice: (1) by various references, both by question and argument, in which the solicitor is said to have portrayed White as a 'hot rodder' and a 'constant wrecker of automobiles,' and (2) by three times attempting to question White as to his having had a driver's license.

On examination of one of the State's witnesses, the solicitor asked, over objection, whether the witness saw a sticker (not further shown as a gummed label or decalcomania), being removed from White's car immediately after the collision. The witness was also asked if the thing taken was 'one of those drag signs.' The witness did not know.

The solicitor, in cross examining a defense witness as to White's car, was allowed to ask, over objection, the following question:

'Q. Do you know whether it has these things on the--what do they call them--these hot rod things on the sides?'

The witness did not understand the question, and after some verbal sparring it was brought out that White's car did not have twin mufflers or pipes that run around outside of it.

In view of the negative answers, we are unwilling to consider that any of these claimed prejudicial questions were erroneous, either singly or joined together. While we should not confuse the capacity of an automobile for speed with the mental attitude of the driver, we are unwilling on this record to say that references to a 'drag sign,' twin mufflers, pipes running around the sides or 'hot rod things' are per se prejudicial. Marler v. Pinkston, Mo., 293 S.W.2d 385.

Aside from those matters which partake of 'preexisting' prejudice, such as reference to a defendant's race, or some irrelevant description which by common acceptation has, from time to time, been considered prejudicial per se (e. g., 'honky tonk,' Nix v. State, 32 Ala.App. 136, 22 So.2d 449), the effect on a jury of questions, particularly those never answered, and of argument by counsel has been difficult for appellate courts to assess.

Certainly, the State has as much right as the defendant to argue to the jury every matter of legitimate inference from the evidence, and as stated in People v. Mull, 167 N.Y. 247, 60 N.E. 629, 631, 'the evidence may be examined, collated, sifted, and treated in [the solicitor's] own way.' (Bracketed matter substituted.)

In Moreland's Modern Criminal Procedure, p. 266, we find:

'* * * But anything less than an appeal to a pre-existing prejudice is not apt to be ground for a reversal, so long as it comes within reasonable bounds of the evidence. So, emotional appeals, even though dramatically uttered are not ordinarily ground for a reversal, although occasionally an excessive appeal to sympathy or to fear will be held to go beyond the limits of reasonableness to be expected in a fair trial. * * *'

Thus, in Powell v. State, 39 Ala.App. 246, 100 So.2d 38, after pointing out that appellant, under Code 1940, T. 15, § 389, and Supreme Court Rule 45, Code 1940, Tit. 7 Appendix, has the onus of persuasion of both error and injury, we relied on (1) the trial judge's opportunity to observe and (2) rhetorical questions partaking of the nature of argument. We held such questions harmless if, like argument, their substance was taken from matters already in evidence.

The identification of the automobile which White drove, by virtue of the indictment, was an issue in the case. Accordingly, its description was permissible enquiry. Ott v. State, 160 Ala. 29, 49 So. 810 (description of well admissible because scene of crime); Dukes v. State, 210 Ala. 442, 98 So. 368 (description of derringer).

The second element of claimed prejudice by the solicitor arises from the driver's license question, objection to which in its several forms was sustained three times. In Head v. State, 35 Ala.App. 71, 44 So.2d 441, 447, this court, per Harwood, J., said:

'During the cross-examination of appellant he was asked by the Solicitor how many times he had had his driving license taken away. The court sustained the objection interposed to this question.

'He was then asked if he had not been convicted of driving while intoxicated. The court sustained the objection to this question. Defense counsel then moved for a mistrial. The court denied this motion, and instructed the jury as follows: 'Gentlemen, there is no testimony to that effect before you. For all you know he would have said no. That is what you are to presume.'

'Both questions were of course improper. However, in view of the abundant tendencies of the evidence showing appellant's guilt, and the effort of the judge to eradicate the prejudicial effect of the questions, we are unwilling to say that the appellant's rights were probably injuriously affected by the Court's action in denying the motion for a mistrial. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.' (Italics supplied.)

Here White's counsel made no motion for a mistrial, so that the collected effect, if any, of merely posing the questions was never argued to the trial judge. Since objection was sustained, Madison v. State, Ala.App., 109 So.2d 749, does not apply.

White's second claim of error proceeds from the solicitor's cross-examination of a character witness as to whether or not she had ever heard that White had been driving a car for two years without a driver's license. The answer was no. Other character witnesses were asked similar questions.

It is argued that Kelly v. State, 17 Ala.App. 577, 88 So. 180, 181, holds that it is prejudicial to impute guilt to a defendant by asking a witness as to his having heard the defendant was guilty of a certain crime. The Kelly case has this to say 'When these questions are asked, in good faith, they are permissible, to test the witness as to what he considers good character. Nothing appearing to show to the court that the questions were not asked in good faith, the court properly overruled the defendant's objections. In each case the witness answered that he had not, until the day of the trial, around the courthouse, heard of the incidents inquired about and embraced in the questions propounded by counsel for the state. * * *'

In the Kelly case, the lower court was reversed because of an apparent limitation on the defendant of the scope of argument and the failure of the judge to instruct the jury as to the purpose of permitting such cross-examination, i. e., to test credibility and to plumb the depth of character witness's knowledge of Kelly's repute.

There is no claim here that the solicitor asked these questions in bad faith. Such questions are not error and alternatively the negative answer of the witness removes the possibility of injury. Jackson v. State, 38 Ala.App. 522, 93 So.2d 804.

White's third proposition is based upon the solicitor's question asked in cross examining White, 'During the past two years how many cars have you wrecked?' Without going into whether this question was properly objected to or was erroneous, we see no substantial injury since defendant gave a negative answer.

During final argument, White's counsel argued, 'Gentlemen, if you cannot say that he intentionally killed him, then you cannot convict him under the law.' The solicitor objected and the trial judge agreed saying, 'That was not the law.' Mr. Callahan, counsel for White, then pointed out that the indictment read 'unlawfully and intentionally.' The trial judge proceeded to instruct the jury concerning the word 'intentional.' ¹ Thereupon Mr. Callahan reserved an exception 'to Your Honor's oral charge at this time.' Argument was then continued.

The indictment carried the lesser included offense of second degree manslaughter, a case of which can be supported by evidence of negligence. See also Rainey v. State, 245 Ala. 458, 17 So.2d 687, and Smith v. State, Ala.App., 109 So.2d 853, as to intent and wantonness in manslaughter.

Davis v. State, 213 Ala. 541, 105 So. 677, 678, gives the Alabama rule concerning the use of legal texts in...