Williams v. State
| Decision Date | 09 December 1975 |
| Docket Number | 6 Div. 865 |
| Citation | 326 So.2d 686,57 Ala.App. 158 |
| Parties | Eva Austin WILLIAMS, alias Coony Williams v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Ralph C. Burroughs, Public Defender, James P. Smith, Third Year Law Student, Tuscaloosa, for appellant.
William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
On separate indictments, one charging defendant-appellant with an assault with intent to murder Leonard M. Euler and the other with the crime against nature with Leonard M. Euler, the cases were consolidated for trial by agreement of the parties and the jury returned verdicts of guilt in both cases. His punishment was fixed at imprisonment in the penitentiary for twelve years in the assault with intent to murder case and for five years in the crime against nature case. The cases are submitted on appeal on a consolidated record and briefs of attorneys for the parties.
Euler was a patient at Bryce Hospital and, in an effort to go therefrom to his home in Birmingham he asked one of a group of men in an automobile for a ride. According to Euler, defendant was asleep in the back seat of the automobile and appeared to be intoxicated at the time. Euler further testified that he offered the men some money to take him to Birmingham and that they agreed to take him to Bessemer, but that they drove him to what he afterwards learned was appellant's home in Brookwood, in Tuscaloosa County. During the trip Euler said he consumed several beers. As they arrived at appellant's house, it seemed that appellant had locked himself out of his dwelling and that some of the occupants of the automobile attempted to break into the house. One occupant, Gary Mahan, gave Euler a tire tool in order to attempt to break the lock on one of the doors. Meanwhile, appellant, who had gained entrance through the back door, observed Euler trying to break the lock with a tire tool, took the tire tool away from Euler and hit him on the head. Thereafter, they all went into the bedroom of the house, where Mahan proposed sexual intercourse in the presence of defendant and Cecil Higginbotham, who had been in the automobile with them. Mahan started beating on him; the others did not hit him. He said there was some anal penetration by Mahan.
Mahan testified as a witness for the State, he having been indicted in a separate indictment for carnal knowledge of Euler. He said he was drunk at the time. Although defendant did not personally commit the unnatural act, Mahan, as well as Euler, testified in detail that defendant was present at the time and aiding Mahan in his criminal conduct. Mahan testified that the defendant made the proposal to Euler. He testified that all had been drinking. He further testified that he applied a lighted cigarette to defendant's buttocks, which according to a physician who examined Euler after the incident:
The other occupant of the automobile, Cecil Higginbotham, testified that after they went into the house defendant told Euler that he would teach him 'the way they do it in prison,' referring to the particular form of sexual perversion involved. He said he was not in the house at the time of the alleged act of carnal knowledge. He said he saw defendant hit Euler with the tire tool, which he testified that defendant obtained from the automobile.
We see no need to discuss further the repulsive testimony as to the crime against nature charge. To be added to our summary of the evidence as to the assault with intent to murder charge, we note that pictures of Euler taken soon after he went to the hospital for his injuries show that he received a severe injury to his head. We are convinced that the evidence amply supports the verdict of guilty in each case.
Before arraignment of defendant was completed, he was presented a written detailed explanation of rights in each case, which he and his appointed attorney acknowledged in writing. In the crime against nature case, it was erroneously stated that the minimum punishment was imprisonment in the penitentiary for 'one year' instead of 'two years' as provided by Code of Alabama 1940, Title 14, Section 106. In all other respects the explanation of rights in each case was accurate. Appellant urges that the mistake made in this particular constituted reversible error in the crime against nature case. Communication to an accused of information of minimum and maximum possible sentences is a prerequisite to the acceptance of a guilty plea. Carter v. State, 291 Ala. 83, 277 So.2d 896. The principle was subsequently applied in Moore v. State, 54 Ala.App. 463, 309 So.2d 500, and appellant seeks to avail himself of language in that opinion wherein the court, in emphasizing the reason for requiring such information before accepting a plea of guilty, said that defendant would thereby have an opportunity to give as adequate consideration to the possible extremity of the consequence if he pleads not guilty as if he pleads guilty 'so that he can determine voluntarily and intelligently whether he is willing to risk such punishment by a trial on a plea of not guilty.' This, however, was said in the context of a plea of guilty. A similar reason does not apply to the acceptance of a plea of not guilty. In fact, the court has no discretion in the matter of the acceptance of a plea of not guilty. A trial judge is not required to inform defendant as to the consequences of a plea of not guilty when there is not before the court a proposal or an offer to plead guilty. There was no such proposal or offer in this case. In this circumstance the action of the court in advising defendant on the subject of the minimum and maximum punishment was supererogatory. By no stretch of reason can we find that defendant was in any way prejudiced by the inaccuracy.
If Euler consented to the unnatural intercourse by Mahan, as to which there was evidence that defendant was an abettor, Euler would have also been guilty of a crime against nature. As to defendant, he would have been an accomplice, but if he did not consent, or if his consent was forced or coerced by fear or duress, he was not an accomplice, and his testimony did not require corroboration to sustain a conviction of defendant on that charge. LaBryer v. State, 45 Ala.App. 33, 222 So.2d 361. There was strong evidence that Euler was not an accomplice, that he did not voluntarily consent to the carnal act.
In connection with the question whether Euler was an accomplice, appellant urges that certain written charges requested by him as to an accomplice should have been given. In Charge X, Euler is categorized as an accomplice, which of itself justified its refusal. In VIII and IX, Mahan and Higginbotham are referred to respectively as accomplices. The testimony of neither should have been singled out as that of an accomplice requiring corroboration. Where one witness who is not an accomplice testifies as to all essential facts, there is no necessity for an attempted application of the rule to another witness who is an accomplice. 1 In none of the requested charges does the defendant in effect request that the court instruct the jury that if Euler was an accomplice the jury could not convict defendant of the charge of the crime against nature on his testimony alone or upon his testimony without corroboration. Nor was any charge requested substantially the same as the charge (Charge 2) that was held to have been erroneously refused in LaBryer v. State, supra.
At the conclusion of the oral charge, defendant excepted to 'the fact the court failed to charge the jury as to an attempt in the case of sodomy.' The trial court did not charge the jury as to an attempt to commit sodomy or a crime against nature. Appellant urges that the court's failure to so charge the jury constituted prejudicial error. The State urges that the evidence would not support a finding of a mere attempt, that if the testimony as to what occurred is believed, the crime expressly charged was consummated. The evidence showed that Mahan had entered a plea of guilty to the charge of 'sodomy' and that he testified in this case. Euler testified that there was penetration. We see...
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