Williams v. State

• Decision Date: 29 July 1975
• Docket Number: 6 Div. 904
• Citation: 55 Ala.App. 436,316 So.2d 362
• Parties: Robert Eugene WILLIAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 362

316 So.2d 362

55 Ala.App. 436

Robert Eugene WILLIAMS v. STATE.

6 Div. 904.

Court of Criminal Appeals of Alabama.

July 29, 1975.

Hanes & Hanes and Michael F. Bolin, Birmingham, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of robbery. Defendant was sentenced to imprisonment in the penitentiary for thirteen years in accordance with the verdict of the jury.

In urging that the judgment should be reversed, appellant directs his contentions exclusively to the action of the trial court in admitting into evidence, over the objections of defendant, testimony to the effect that defendant had been convicted of the crime of sodomy. This testimony of defendant himself was admitted after he had taken the stand as a witness in his own behalf and while he was being cross-examined by the State.

It would serve no useful purpose for us to summarize the evidence. However, we have reviewed it, as we have the entire record, and are convinced that the evidence was sufficient to support the verdict of the jury and the judgment of the court in overruling a motion for new trial, and that in our search for any prejudicial error not urged on appeal we have found none.

Appellant's main contention is summarized in the statement 'that under the laws of the State of Alabama, the credibility of a witness cannot be impeached by a prior conviction of sodomy, or a crime against nature.'

The parties are in agreement that in accordance with Code of Alabama 1940, Title 7, §§ 434, 435, the credibility of a witness cannot be impeached by evidence of a prior conviction of a crime unless such crime involves moral turpitude.

Appellant says that the particular issue is one 'of first impression in the State of Alabama.', and appellee states that it is 'the impression of the appellee that the appellate courts of this State have not defined sodomy as a crime involving moral turpitude or not involving moral turpitude.' Neither side has called our attention to any case in Alabama in which the precise question has been categorically answered.

Notwithstanding the apparent dearth of authorities on the specific question, we have no hesitancy whatever in arriving at the conclusion that a crime that consists of sexual relations between persons of the same sex, or with beasts, or between persons of different sex in an unnatural manner, whether denominated specifically as sodomy, buggery, beastiality, cunnilingus, or otherwise, or whether described generally as a crime against nature, involves moral turpitude. Alabama chooses to call it 'a crime against nature, either with mankind or with any beast,' and to make it punishable by confinement in the penitentiary for not less than two nor more than ten years. Code 1940, T. 14, § 106.

A better summary of the meaning of moral turpitude can hardly be given than that found in McElroy, Law of Evidence in Alabama, Vol. I, § 145.01(7) as follows:

"Moral turpitude signifies an inherent quality of baseness, vileness, depravity.' Gillman v. State, 165 Ala. 135, 51 So. 722. Moral turpitude 'implies something immoral itself, regardless of the fact whether it is punishable by law. The doing of the act, and not its prohibition by statute fixes the moral turpitude.' Pippin v. State, 197 Ala 613, 73 So. 340. Moral turpitude means 'something immoral in itself. * * * It must not be merely Mala prohibita, but the act itself must be inherently immoral. The doing of the act itself and not its prohibition by statute, fixes the moral turpitude. * * * It is the nature of the act itself, and not its legislative characterization or punishment which must be the test in determining whether or not it involves moral turpitude." Ex Parte Marshall, 207 Ala 566, 93 So. 451 (471).'

Doubtless having in mind various definitions of moral turpitude throughout the United States and elsewhere, a conclusion is reached, with which we fully agree, in 70 Am.Jur.2d Sodomy, § 2, as follows:

'The practice of sodomy is inherently inimical to the general integrity of the human person, and Is clearly an offense involving moral turpitude whether defined by common law or by statute, the control of which is within the reserved and police powers of the several states under Articles IX and X of the United States Constitution.' (Emphasis supplied).

We do not think appellant is entitled to comfort from cases cited by him that hold that a felony does not in and of itself involve moral turpitude. The cases so holding in Alabama are referable to some offenses made felonies by statutes of Alabama, not felonies at common law, which sodomy in a limited form (buggery) was, beginning with 25 Henry VIII, c. 6 (1533) repealed during the reign of Bloody Queen Mary by 1 Mary, c. 1 (1533) 1st Session, but reenacted by 5 Eliz., c. 17 (1562). In this connection, it is to be noted, as interestingly observed by Judge J. Russell McElroy in his article, Conviction of Crime to Impeach Witness in Alabama, 2 Alabama Lawyer 37, that the provision that a conviction of a crime involving moral turpitude shall be admitted to discredit a witness was first made law in Alabama by Section 4008 of the Code of 1907, which changed the language from Infamous crime to a crime Involving moral turpitude. He called attention to the...