100 So. 307 | Ala. Ct. App. | 1923
Lead Opinion
This appellant, defendant in the court below, was charged by indictment with an assault to ravish Alma McNeal. He was convicted as charged and was duly sentenced to imprisonment in the penitentiary for an indeterminate terms of not less than four years or more than five years. From this judgment he appeals.
Numerous exceptions were reserved to the rulings of the court upon the admission and exclusion of evidence introduced or offered in the progress of the trial of this case. In every instance, however, the objection to the testimony and the motion to exclude were of a general character, and as shown by the record, in no instance in this connection were any grounds assigned; not even the usual general objection "because illegal, irrelevant, immaterial and inadmissible." Here, the counsel merely "objected." It follows therefore that none of the rulings of the court upon the testimony are presented in a manner authorizing a revision of the court's action in making any of the rulings. Circuit Court Rule 33, Code 1907, p. 1527, provides:
"When, in the progress of the trial of any cause in a court of original jurisdiction, objection and exception are reserved to the introduction of testimony that is not patently illegal, or irrelevant, such exception will not be considered an error, unless the record shows that the grounds of objection were specified. * * * And the appellate court, in revising such decision, must consider only the grounds of objection which are shown to have been clearly specified."
As provided in above rule, of course, if any of the testimony offered was manifestly, or, as stated in the rule, patently illegal or irrelevant, a formal general objection would suffice. But here, none of the evidence was of this character, as under the theory of a conspiracy as contended by state it was not manifestly illegal or irrelevant, and incapable of being rendered admissible in connection with other evidence. Adams Hardware Co. v. Wimbish,
"The court is not bound to cast about for the grounds of the objection. * * * The rule requires that the party appealing must affirmatively show error."
Under the testimony in this case there is no theory upon which the defendant was entitled to the general affirmative charge; therefore the court properly refused to give charge 1 requested by him.
Charges 2, 3, and 15, refused to defendant, state a correct proposition of law, and the appellate courts of this state have many times so declared. But error cannot be predicated here upon the refusal of these charges for the reason that given charges 6 and 7 fully cover these charges. The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court's general charge, or in charges given at the request of parties.
Charge 4 was properly refused. It is objectionable in that it singles out a part of the testimony, and is bad in other respects. Even if the witness Alma McNeal had been successfully impeached, the court would have no authority to instruct the jury as a matter of law to wholly disregard all of the testimony of this witness. If said witness had been impeached, it was the duty of the jury to weigh the evidence given by her in the light of that fact, and if after so weighing her testimony, they arrived at the conclusion that it was untrue, the jury in that event would have the right to disregard it. But under no circumstance would the court be authorized to charge the jury as a matter of law that they should wholly disregard the testimony of this witness. Pentecost v. State,
Under the authority of Worthy v. State,
Charge 7 was properly refused; it singles out a part of the evidence, and is invasive of the province of the jury.
Charge 13 refused to defendant was fairly and substantially covered by the oral charge of the court. *653
Refused charge 14 is wholly abstract, there being no semblance of testimony showing, or tending to show, consent by prosecuting witness Alma McNeal.
Charge 16 was fairly and substantially covered by the oral charge of the court, and by given charge 7 requested by defendant. See, also, Koch v. State,
The oral charge of the court was an excellent exposition of the law applicable to the facts in this case. It was clear, able, forceful, and fair; and the able counsel representing this defendant reserved no exception to any portion of the charge, nor did they complain of this charge in any manner. We are of the opinion that this defendant has been accorded a fair and impartial trial, and that by no ruling of the court has his substantial rights been injuriously affected.
The record is also free from error. Let the judgment appealed from stand affirmed.
Affirmed.
On the rehearing we have reached the conclusion that there was error in the trial court which necessitates a reversal of the judgment of conviction, and consequently of granting a rehearing and of modifying the opinion of this case as follows:
We have reached the conclusion that the giving of charge 1 at the request of the state was error to reverse. That charge reads as follows.
"If the jury are satisfied beyond a reasonable doubt that defendant assaulted Alma McNeal, then the jury cannot acquit him."
The main error in this charge is that it does not base or predicate a conviction upon a "belief of the evidence" by the jury beyond a reasonable doubt. Charges requesting a conviction or acquittal must be based or predicated upon a belief of the evidence, and in criminal cases, in order to convict, the jury must believe beyond a reasonable doubt from the evidence in the case that the defendant is guilty. The belief or satisfaction of the jury to support a conviction in a criminal case must be based or predicated upon the evidence. The jury might be satisfied of the guilt of defendant beyond a reasonable doubt, although the evidence in the case might show the defendant to be innocent, or at least create a reasonable doubt in the minds of the jury as to his guilt. The jurors might have personal knowledge of the guilt of the defendant, or they might be satisfied beyond a reasonable doubt from mere rumors or gossip, yet such satisfaction would not justify a verdict of guilty. The oath of the jury is to well and truly try the issue between the state and the defendant and a true verdict render according to the evidence. They are not authorized to render verdicts of guilty unless the evidence in the case satisfies the jury beyond a reasonable doubt. Consequently, the charge was erroneous and could not be cured by the giving of other charges predicated or conditioned on the verdict upon the belief of the evidence beyond a reasonable doubt.
An erroneous charge cannot be cured by giving a correct one. The jury would be left in doubt as to which charge to follow — the correct or incorrect one. The error in refusing a correct charge may be cured by the giving of other correct charges; but the giving of an erroneous charge cannot be so cured by the giving of court charges. The error of the giving of misleading charges may also be cured by the giving of other charges, but not so as to the error in giving erroneous charges. The repeated rulings of this court have held that it was error to give charges, and not to refuse them, which fail to predicate or base the verdict of guilty or not guilty upon the evidence in the case. Davis v. State,
We decided on the original hearing that charges 2, 3, and 15, refused the defendant, state correct propositions of law, and that the appellate courts of this state had many times so declared; but we held that error could not be predicated upon the refusal of those charges for the reason that the given charges, 6 and 7, fully covered those charges. On further examination of the question of authorities, we have reached the conclusion that the error in refusing these charges was not cured by the giving of charges 6 and 7 or by the oral charge of the court. It will be observed that each of these given charges required the jury to be "reasonably satisfied from the evidence." This, of course, was a higher degree of proof than is required in criminal cases. If the evidence had generated a reasonable doubt in the minds of the jury, it was the duty of the jury to give the defendant the benefit of that doubt; and yet each of these charges required the jury to be reasonably satisfied from the evidence. Consequently, the error was not cured by the giving of charges which required higher degree of proof. If the jury had a reasonable doubt as to whether or not Alma McNeal swore falsely as to any material facts on the trial of the case, then the jury had a right to disregard her testimony. The law did not require them to be reasonably satisfied that she had testified falsely.
In Conners' Case,
In the case of Barnett v. State.
We have also carefully examined the oral charge of the court to see if the error in refusing these charges was not corrected by the oral charge, and we have reached the conclusion that this error was not corrected. In fact, at page 46 of the transcript we find that the trial court in its oral charge where he sums up the law of the case and instructs the jury says as follows:
"But after weighing and considering all the testimony in the case, if it is your fixed conviction and judgment, giving to the testimony of the state's witnesses and the defendant's witnesses the weight and credit you deem it entitled to, that the defendant is guilty of neither an assault with intent to ravish or an assault and battery, then in that event the verdict would be not guilty."
It will be observed that in this part of the oral charge the court instructed the jury that they should have a fixed conviction and judgment that the defendant was not guilty in order to return a verdict of not guilty.
It is true that no objection or exception was taken to this part of the oral charge, and we merely refer to it to show that the error in the refusal of the defendant's charges, which we hold to be correct, was not cured by the oral charge. A higher degree of proof was again required by the court in order to support a verdict of not guilty.
As the case must be reversed and remanded for another trial, it is unnecessary to treat specifically other questions which may not arise and which were insisted upon in the application for rehearing. We deem it proper to say, however, that the testimony of the witnesses on the preliminary trial should not be introduced in evidence on the next trial by the state if the witnesses are present and testify on the trial. If, however, the defendant had offered a part of that testimony, then, of course, the state would have a right to introduce the whole; but unless the defendant had offered a part of the testimony in evidence on the preliminary trial, it would be error to allow the whole of the testimony of these witnesses on the preliminary trial when they were present in court and could testify orally.
It therefore result that the judgment of affirmance in this case must be set aside and one here entered reversing and remanding the cause for another trial.
Reversed and remanded.
Dissenting Opinion
I cannot agree with the position taken by BRICKEN, P.J., in his opinion on rehearing in the following particulars:
First. I am of the opinion that charge 1 states a correct proposition of law as based upon the evidence in this case, and that it is not subject to the criticism stated, that it is not based upon a "belief of the evidence." True, the charge as written and presented to the court is not so hypothesized, and, if the charge had been refused by the court, the criticism would have been correct; but such was not the case. The court gave the charge as requested, and thereby not only inferentially, but in express terms, adopted it as a part of the court's oral charge, which several times stated and referred to the evidence in the case. Nor does the rule that the giving of a correct charge does not cure the error of giving an incorrect one apply here. The charge given becomes a part of the oral charge, based upon the evidence in the case, and, when so taken and considered, is cured of a defect in phraseology which would have justified the court in refusing to make it a part of his charge. The charge in Davis' Case, 188. 59, 66 So. 67, and in Edwards Case,
"The written charges given you are not in conflict with the court's oral charge and are to be considered by you along with and as a part of the court's oral charge."
Second. I am still of the opinion that given charges 6 and 7 correctly state the law, and that the defendant had, in those charges, every benefit to which he was entitled. The jury has not the right to reject the testimony of a witness, unless the jury is reasonably satisfied from the evidence that such witness has intentionally and corruptly sworn falsely to a material fact in the case. The maxim of the law, "falsum in uno, falsum in omnibus." must be applied with great caution. Grimes v. State,
Third. I am also of the opinion that the court did not commit reversible error in admitting the testimony of Bob Strickland and James Mason, taken on the preliminary hearing of this case before the justice of the peace, and offered in evidence by the state. These witnesses were examined on cross-examination by defendant's counsel as to what these witnesses testified on the preliminary trial of this case. This was done in the most minute manner, the examining counsel ostensibly reading the questions from the stenographic report of the preliminary trial. In some instances the witnesses admitted, and in some denied, having so testified. Where one party has brought out a part of a conversation or transaction, on the trial of a case, the other party is entitled to the whole and to prove the entire conversation or transaction by the best available evidence. The stenographic report of a witness' testimony, when properly identified and attested, is the best evidence of what transpired on the examination. As was said in Kennedy's Case,
"The court did not err in refusing to allow him to be cross-examined as to garbled extracts taken from the writing, with a view of contradicting or impeaching him. The court properly required that the entire writing should be shown, or read to the witness, and go the jury." Wills V. State,
The objection being general, if the testimony was relevant for any purpose the objection was properly overruled.
I am of the opinion that this court reached a correct conclusion in affirming the judgment, and the application should be overruled.
Addendum
The application for certiorari having been granted in this case, and the decision of this court being reversed and the cause remanded for further consideration, this court, of course, will only consider the questions not heretofore decided by the court. It was suggested by this court in its former opinion that it was error to introduce in evidence the testimony of two witnesses, James Mason and Bob Strickland, given on the preliminary trial of this case. We declined to decide this question, for the reason that it might not arise on another trial; the case being reversed on other grounds. But it now becomes necessary to decide this question before the cause can be finally affirmed or reversed. It is our opinion that it was reversible error for the trial court to allow this testimony introduced in evidence by the state. So far as the record shows, it was introduced as independent proof, notwithstanding both of the witnesses were then present in court and had testified. The law is well settled that testimony of witnesses on a former trial is never admissible except in case of necessity, where the witness is dead, incapacitated to testify, or his presence cannot be obtained. Kirkland v. State,
It is equally well settled that such testimony is not admissible to corroborate witnesses who testified on the trial. It is never permissible to corroborate witness by proving that he made similar statements prior to the time of his testifying, or that he testified in the same manner on a previous trial. See Long v. Whit,
It therefore results that the judgment must be reversed, and the cause remanded.
Reversed and remanded.
SAMFORD, J., dissents. *656
