Wright v. State

• Decision Date: 19 October 1954
• Docket Number: 8 Div. 286
• Parties: William Claud WRIGHT v. STATE.
• Court: Alabama Court of Appeals

Page 66

79 So.2d 66

38 Ala.App. 64

William Claud WRIGHT v. STATE.

8 Div. 286.

Court of Appeals of Alabama.

Oct. 19, 1954.

Rehearing Denied Nov. 30, 1954.

Bradshaw, Barnett & Haltom, E. B. Haltom, Jr., Florence, for appellant.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., Owen Bridges, Montgomery, of counsel, for the State.

HARWOOD, Judge.

The indictment against this appellant charged him with murder in the second degree, in that he 'unlawfully and with malice aforethought killed Ella Wee Tays, by driving an automobile into, upon, over, or against her, but without premeditation or deliberation.'

His jury trial resulted in a verdict and judgment of guilty of murder in the second degree.

His motion for a new trial being overruled appeal was perfected to this court.

The evidence presented by the State tended to show that Miss Tays, a crippled girl, was struck and instantly killed by an automobile which approached from the rear as she was walking along the shoulder of a highway in Lauderdale County. The automobile swerved from its proper side of the highway across the highway and onto the shoulder before striking Miss Tays.

The State's evidence further tended to show that the appellant was driving the automobile when it struck Miss Tays, and that he and his companion, Francis Louis Berness, who was the owner of the car, were drunk at the time. There was further evidence from which the jury could infer flight after the homicide.

Over the appellant's objection that the same was inaudible, or partially inaudible, there was received in evidence at the behest of the State a tape recording of a statement confessory in nature. This statement was made by appellant the next day following the homicide in the presence of Chief of Police Danley of the City of Florence, and two other law enforcement officers.

After the voluntary character of the statement made on the wire recording machine was established, and after the mechanics of making the recording, and the substantial accuracy of machine in recording sounds was shown, the record shows the following during the voir dire examination of Chief Danley:

'Q. You have heard the statement--Is it audible? A. Yes, it will play back.

'Q. Is it audible? A. Some of it is and some you can hardly hear because it is so low because he talks low. It is not very good--I tell you that.

'By Mr. Potts: We ask at this time that it be played.

'By the Court: I think if it is audible, the jury could hear it, but I think if it is not audible, it would be better for the witness to state what it was.

'By Mr. Potts: I would like it played; I think the jury can understand it. I think it can be heard.

'By the Court to the witness:

'Q. In your best judgment, can the jury on close attention get the words from the playing of this record? A. Yes sir.

'By Mr. Barnett: This occurs to me--Part of that may be objectionable and while it is playing we can't object, what is the proper way to do that?

'By Mr. Potts: The State will agree that if there was any objectionable statements in there, they be given the privilege of assigning them on the record after the record is played--Giving them the privilege of interposing objections and having rulings on them.'

The material portion of the statement by appellant was to the effect that at the time Miss Tays was struck: 'I was driving the car, I pulled around a truck and I heard the scream, and I didn't know I hit the girl until--until we got out of the car; they said I hit her. Frank Berness said 'We didn't do it, come on and lets go.' I went back there and looked at the girl and it scared me so I didn't know hardly what I was doing, and I went out and got back in the car and he drove * * * and the red headed boy which I believe was a Dean boy works at S. S. L. store, I am not for sure but I think he is the one. He told me, said, 'Wright, you better, you better wait for the law.' I said 'Well, thats what I told him, the only thing for us to do.' And he said I didn't--he told them we didn't do it, and drove off, and Robertson, Bert Robertson, I believe, overtook us, I believe, at Horton's store, and he got us and took us to jail.'

The evidence presented by the appellant was directed toward showing that Berness rather than he was driving the car at the time Miss Tays was killed.

The appellant testified that he met Berness in Florence on the morning of the homicide, Miss Tays being killed at around 4:00 p. m. He and Berness visited various places in and around Florence and drank beer and whiskey at frequent intervals. Berness bought a pint of whiskey to give to his father-in-law, and it was while going to deliver this that Miss Tays was hit. The appellant denied he was driving the car when Miss Tays was hit, and stated that if he was he was too drunk to remember.

During the cross examination of the appellant he was asked if he had not been convicted in the federal court in Florence of the offense of disposing of property mortgaged to a governmental agency. He replied he had not plead guilty, but was placed under probation 'until it was settled.'

In rebuttal to this evidence the State introduced Mr. M. C. Sandlin, Federal Probation Officer for the Northern District of Alabama. On direct examination Mr. Sandlin was asked if he had knowledge 'whether or not' the defendant had been convicted in the federal court for the crime of disposing of mortgaged property. He replied in the affirmative, and stated on redirect examination that he heard the sentence pronounced, and appellant placed on probation.

The court then permitted a voir dire examination of Mr. Sandlin. On this examination Mr. Sandlin testified he was not present when the case was disposed of, but was present when the appellant was sentenced in open court and placed on probation, and the judge had sent him 'the conclusion of the conferences.'

Counsel for appellant moved to exclude the testimony of Mr. Sandlin on the grounds that it was not the best evidence. This motion was denied. In this ruling the court erred.

The showing of a prior conviction to discredit a witness may be shown by the oral testimony of the witness himself, or by the court record of such conviction, or a properly certified copy thereof. Such prior conviction cannot be established by the oral testimony of another. Thompson v. State, 100 Ala. 70, 14 So. 878; Childers v. Holmes, 207 Ala. 382, 92 So. 615; Ellis v. State, 244 Ala. 79, 11 So.2d 861.

In the event of another trial we wish to note that there was attached to and made a part of appellant's motion for a new trial a certified copy of the record of the case against the appellant in the federal court. This record shows that appellant, with leave of the court, entered a plea of nolo contendere to an indictment charging him with disposing of property mortgaged to the Russellville Production Credit Corporation.

In our opinion a conviction on a plea of nolo contendere is not admissible in this jurisdiction for the purpose of discrediting a witness.

While in a majority of the jurisdictions a conviction or sentence of a witness on a plea of nolo contendere is admissible as affecting credibility, at least two jurisdictions, Massachusetts and New Hampshire, hold that such evidence is not admissible for such purpose. See 146 A.L.R. p. 867 et seq. for authorities.

Writing to this question, Judge Learned Hand, in Pfotzer v. Aqua Systems, 2 Cir., 162 F.2d 779, 784, observed:

'Moreover, as a new question there is plausibility in the argument that the very purpose of the plea, nolo contendere, is limited to disposing of the prosecution in which it is entered; and that, just as it is not to be treated as an admission of the 'operative' facts in another action, so it is not to be treated as an admission of facts which may impeach a witness in another action. Such indeed is the law of Massachusetts and of New Hampshire; on the other hand in a number of jurisdictions it has been held that a conviction on such a plea is as competent to impeach a witness as one entered on a plea of guilty or a verdict. * * * The only relevant question is what are the limitations which the law assures the accused that he will be entitled to invoke, if he files the plea. That is a mere question of what the courts have decided--one alternative is no more rational than the other----'.

We think that the doctrine of Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 231 Ala. 680, 690, 166 So. 604, 613, clearly limits the effect of a plea of nolo contendere, and the judgment entered thereon to the purposes of the case in which it is entered, and to that case only.

The court in the Murphy case, supra, was considering whether a conviction for perjury, entered on a plea of nolo contendere in a federal court, could render a witness incompetent in light of Section 434, Title 7, Code of Alabama 1940, which provides that: 'No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury; but if he has been convicted of a crime involving moral turpitude, the objection goes to his credibility.'

However, as to the general operative effect of a judgment entered on a plea of nolo contendere Justice Bouldin wrote:

'The record shows the judgment entered on a plea of nolo contendere. This is a special and limited plea recognized in some jurisdictions. It may not be filed as matter of right, but only allowable upon acceptance of the court. When so accepted, it has the effect of a compromise agreement between the state and the accused to the effect that a judgment of conviction be entered, but only for the purposes of the particular case, not to become evidence against the accused in any other proceeding. Such a plea, therefore, enters into and limits the judgment of conviction rendered thereon. The sovereign having entered into such covenant with defendant, evidenced by acceptance of such plea, good faith demands that the judgment...