Wilder v. State
| Decision Date | 12 February 1974 |
| Docket Number | 6 Div. 448 |
| Citation | 290 So.2d 225,52 Ala.App. 157 |
| Parties | Larry WILDER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Richard A. Thompson, Jr., Tuscaloosa, for appellant.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
Robbery: sentence, ten years imprisonment.
The State's proof tended to show, if believed to the required degree, i.g., beyond a reasonable doubt, that Wilder and another bound and gagged the manageress of a branch laundry. Wilder tied the woman up while the accomplice held a gun on her. Then the two rifled the till and stripped her purse.
Since appellant in brief has not complied with Rule A (49 Ala. XXI) we neither delineate the evidence nor burden this opinion with a step by step recital of appellant's brief. See Lawson v. State, 51 Ala.App. 704, 286 So.2d 914. Rather we take up under Code 1940, T. 15, § 389, rulings below adverse to the appellant which are not rendered harmless by Supreme Court Rule 45. Wilder is here represented by counsel other than his trial attorney.
The court below denied defense counsel's oral motion to charge the jury as to assault with intent to rob being a lesser included offense. The record is unprotected on this point: Code 1940, T. 7, § 273 prescribes that charges must be moved for in writing. Where the supposed fault of the oral charge is an omission merely this cannot afford a basis for an appellate court's exercising revisory power, unless a written charge is tnedered. Davis v. State, 246 Ala. 101, 19 So.id 358.
II
On cross examination of the State's witness Detective Adolph South, defense counsel elicited details of the arrest of Wilder's accomplice. In the course of this cross examination South was asked as to various conversations he had with the accomplice including statements tergiversating between incriminating Wilder and exonerating him.
In this questioning defense counsel asked among other things:
'Q All right, sir, did you have a conversation on January the 28th, 1972, with Charlie McClyde (the alleged accomplice) in the presence of Mr. Lackey in Judge Nicol's Courtroom?
'A Yes, sir.
'Q In that conversation with Charlie McClyde did he repudiate his earlier implication of Larry Wilder as being involved in this robbery?
'A Yes, sir.' (Bracketed material added.)
Thereafter the District Attorney took Mr. South on redirect examination and went further into the conversation between South and McClyde.
Initially the State could properly have objected to exploring the conversation with McClyde as hearsay made in the absence of the defendant. Without objection it became lawful evidence. See Chastain v. State, 36 Ala.App. 186, 54 So.2d 623.
Further, the defense having brought out part of the conversation, the State was then entitled to complete it by eliciting the remainder pertinent to the subject matter first developed. Drake v. State, 110 Ala. 9, 20 So. 450; McElroy, Law of Evidence (2d ed.) § 316.01.
The Record, p. 81, shows the following:
'THE COURT: Overruled.'
While grounds might have assigned (such as bringing the question under the prohibition of Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847) we are not prepared to disregard the lack of a specification of a ground for the objection. Circuit Court Rule 33; Israel v. State, 35 Ala.App. 317, 47 So.2d 234; Brown v....
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Watson v. State
...845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974). Hearsay evidence which is admitted without objection becomes lawful evidence. Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974). "The fact that evidence which is introduced in a case may be, if objected to, incompetent evidence under some one or ......
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Morrison v. State
...added). There was no objection to this testimony. "Without objection [hearsay becomes] lawful evidence." Wilder v. State, 52 Ala.App. 157, 158, 290 So.2d 225, 227 (1974). Girsch received this note on August 3, 1990. R. 404, 653. He identified the note as "appear[ing] to be in the same or su......
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...or motion to exclude. The error, if any, is thereby deemed waived and objection cannot be initially raised on appeal. Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974); Jones v. State, 52 Ala.App. 184, 290 So.2d 251 (1974); Wilson v. State, 52 Ala.App. 680, 296 So.2d 774, cert. denied,......
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...845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974). Hearsay evidence which is admitted without objection becomes lawful evidence. Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974). 'The fact that evidence which is introduced in a case may be, if objected to, incompetent evidence under some one or ......