Wilcutt v. State

• Decision Date: 05 April 1960
• Docket Number: 6 Div. 702
• Citation: 123 So.2d 193,41 Ala.App. 25
• Court: Alabama Court of Appeals
• Parties: Herbert Eugene WILCUTT v. STATE.

Page 193

123 So.2d 193

41 Ala.App. 25

Herbert Eugene WILCUTT v. STATE.

6 Div. 702.

Court of Appeals of Alabama.

April 5, 1960.

Rehearing Denied June 30, 1960.

Rogers, Howard & Redden and Wm. H. Mills, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.

PRICE, Judge.

The indictment, in three counts, charged the violation of Section 123, Title 14, Code 1940. the trial resulted in defendant's conviction, and he appeals.

The state's evidence tended to show that about ten o'clock on the night of July 17, 1958, an explosion occurred at the home of William Blackwell, Jr., in the Fountain Heights section of Birmingham. Considerable damage resulted to the house, in which were Blackwell and his family at the time. Just prior to the explosion Ernest Coppins, who lived across the street from Blackwell, saw four white men on the street near Blackwell's home and later saw four men at his own fence corner, lighting something with a match. One of the men came to his gate with something smoking in his hand. Coppins yelled and the men left. A short time thereafter the explosion occurred. None of the men were identified.

Shortly after the explosion police officers found Cranford Neal and Ellis Houston Lee huddled together in a nearby alley. They had been beaten and were cut and bleeding. A large group of Negroes were around them. After Neal and Lee were taken to the police station defendant was picked up at his home. He first told the officers he had placed the bomb on Blackwell's front porch, but on further questioning he denied going to the Blackwell house, and stated the only reason he had said he went there was to take some of the pressure off his two companions, Neal and Lee. Later, in a written statement, defendant stated that he had made a bomb from eight sticks of dynamite which he had found; that on the night of July 17, defendant, Neal and Lee had driven to 11th Street and 12th Avenue North in defendant's car; that they circled the block until five minutes of ten, when all three left the car and went to a Negro's house; that defendant stopped fifty feet from the door and the others went on toward the house. One of the others was lighting the fuse when someone hollered; that all three men ran until they reached 12th Avenue and 13th Street. Defendant went back for his car and looked for the others but failed to find them. He waited for them awhile at King's Drive-In, and then went home.

As a witness in his own behalf, defendant repudiated the written statement. He also introduced evidence of his good character and evidence tending to establish an alibi.

The first insistence of error is the court's overruling of the motion for a new trial. The motion contained 78 grounds. For convenience we will consider the arguments made by counsel for error in the order in which they appear in the brief.

Ground 7 of the motion for new trial challenges the court's ruling in this instance: Mr. Rosenfeld, Birmingham City Fire Marshal, testified he lived a little less than five blocks from the 1100 block of 12th Avenue North; that before midnight on the night of the 17th of July his attention was attracted to an unusual sound. In response to a request to describe the sound, he answered: 'A. It was a dynamite sound. I have heard it before in that area, about ten times before. There was one explosion * * *.' Thereupon, the following occurred:

'Mr. Rogers: We move to exclude that and ask the Court to instruct the jury not to consider that. It is an ex parte remark made by Mr. Rosenfeld, who is an experienced witness and knows better, and is not called for in the question.

'The Court: I do exclude the statement, that he had heard it a number of times in the neighborhood. Gentlemen, that is an improper statement and I ask the jury not to consider it.

'The Witness: I am sorry.

'Mr. Rogers: At this time, we move for a mistrial on the ground that the statements made by the witness is so uncalled for it would prejudice the jury and jeopardize the rights of this defendant to a fair and impartial trial.

'The Court: Overrule.'

The court's exclusion of the volunteered information, and his specific instruction to the jury to disregard it, removed any prejudicial error in the witness' answer. See 7 Alabama Digest, Criminal Law, k1170 1/2(6), for numerous cases. The motion for a mistrial was properly overruled.

The defendant was asked on cross examination if he was present at the City Hall on the morning of July 18, 1958, when Ellis Houston Lee made a statement which was taken down in writing. The defendant answered that he remembered being in the room. The solicitor then read from the written statement questions propounded to the said Lee and his purported answers made thereto, and asked defendant if he heard such questions and answers. The following statement of the trial judge made during such questions is made the basis of the assignment as to Ground 42 of the motion for new trial:

'The Court: Does that lead up to or tie it to further questions which would tend to bring this man into the picture? There is a continuous objection to this line of questions. It has been my intention to confine the questioning as to what might have been asked Lee as to something which might tend to incriminate this defendant, is what I had intended to confine it to.' The defendant reserved an exception to the court's remarks. The solicitor stated: '* * * As I understand it, you want me to skip down to some part that has a direct reference to the defendant?' The court answered: 'Yes, sir.'

'It is not improper for the court to make remarks in the presence of the jury, giving its reason for admitting or excluding evidence, or to state the purpose for which the evidence is offered or admitted; * * *.' 23 C.J.S. Criminal Law § 992, p. 347.

We cannot agree with defendant's insistence that by its remarks the court expressed an opinion, in the presence and hearing of the jury, that the portions of the statements previously admitted tended to incriminate the defendant. The court also, in its oral charge, fully and carefully instructed the jury as to the purpose for which such evidence was admitted.

Exception was reserved to the following portion of the court's oral charge to the jury: 'Gentlemen good character alone, even when proven to your satisfaction, is never sufficient to create a reasonable doubt as to the defendant's guilt.' On this question the court further charged: 'But good character, when proven to your satisfaction, and when taken into consideration with all the other evidence in the case, may generate a reasonable doubt as to the defendant's guilt, whereas, without that proof of good character, there would not be any reasonable doubt in your minds as to his guilt.'

This instruction was a correct statement of law. Gettings v. State, 32 Ala.App. 644, 29 So.2d 677; Kilpatrick v. State, 37 Ala.App. 165, 66 So.2d 441. Scott v. State, 211 Ala. 270, 100 So. 211.

The basis of insistence of error as to Ground 51 of the motion for new trial is the following portion of the court's oral charge, to which exception was reserved: 'Now, as I say, the duty of determining whether the confession was fully and voluntarily made rests with the court alone, and when the court determines the confession is admissible, the jury must accept it as competent evidence. They are not at liberty to reject it because under the facts they deem it to be involuntary.'

The portion of the charge objected to is a correct statement of the law. 'When a confession is admitted in evidence by the court, it is not within the province of the jury to inquire into its competency. Their only duty is to determine its credibility and effect. They cannot reject it as inadmissible.' Scott v. State, 211 Ala. 270, 100 So.211, 213. See also Fikes v. State, 263 Ala. 89, 81 So.2d 303; White v. State, 260 Ala. 328, 70 So.2d 624.

The jury was fairly and accurately instructed that in determining its credibility and probative effect they might look to the surrounding circumstances under which it was made. Godau v. State, 179 Ala. 27, 60 So. 908, Robinson v. State, 38 Ala.App. 315, 82 So.2d 815, and cases there cited.

The court in its oral charge explained to the jury the purpose for which the testimony as to accusatory statements of Ellis Houston Lee, made in defendant's presence and hearing, and which defendant failed to deny, were admitted in evidence. Scott v. State, 249 Ala. 304, 30 So.2d 689. We find no merit in appellant's argument that such instruction singled out and emphasized this portion of the evidence.

The exception reserved to 'all that portion of the court's charge relating to a conspiracy' is not sufficient to invite our review. Exceptions to the court's oral charge should set out the particular parts which are objectionable to the defendant, and not merely refer to the charge on a particular subject. Robinson v. State, 38 Ala.App. 315, 82 So.2d 815; McGhee v. State, 178 Ala. 4, 59 So. 573; Corder v. State, 32 Ala.App. 584, 28 So.2d 651; Head v. State, 35 Ala.App. 71, 44 So.2d 441; Favors v. State, 32 Ala.App. 139, 22 So.2d 914.

Ground 54 of the motion for new trial takes the point that the court erred in re-reading the indictment to the jury. The reading of the indictment was not prejudicial to the defendant. The jury was instructed that the indictment was not evidence against the defendant, but constituted a mere formal charge. They were further instructed that they were to decide the case solely on the evidence presented from the witness stand and that defendant's guilt must be established by the evidence beyond a reasonable doubt.

Ground 55 of the motion asserts error on the fact that the court charged the jury as follows: 'Now, gentlemen, in regard to the count that I just read to you, there, I will say this: If you believe from the evidence beyond a reasonable doubt that the defendant willfully set off or exploded...