11 So. 2d 756 | Ala. | 1943
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *677 The offense is rape, the verdict guilty, and the sentence death.
The appellant Henry Daniels, Jr., was separately indicted with one Curtis Robinson by the October Term, 1941, Grand Jury of Mobile County, charging him with having forcibly ravished Zeola Mae Armstrong, a woman. Being unable to employ counsel, two practicing attorneys at the Mobile Bar were by the court on October 22, 1941, appointed to represent appellant on his trial below. Appellant was arraigned upon said indictment on November 4, 1941, at which time he pleaded "not guilty" and his trial was set for November 25, 1941.
On November 17, 1941, in open court in the presence of appellant and his counsel, a special venire for appellant's trial was ordered and drawn, and a copy of the indictment was ordered to be forthwith served on the defendant, together with a list of the jurors constituting such venire. The case proceeded to trial on November 25, 1941, and not being completed on said date, the trial was recessed until the next day for its conclusion, after which the jury brought in its verdict of guilty as charged in the indictment, fixing appellant's punishment at death by electrocution. The lower court remanded appellant to jail to await the action of the court, and two days later the lower court entered its judgment of guilt upon the verdict against appellant for said offense of rape, and at said time, duly sentenced appellant to suffer death by electrocution. Notice of appeal was immediately given, and request made for a suspension of execution of the sentence pending appeal, which was granted.
The record fails to show that the sheriff served on defendant copy of indictment and venire in pursuance of the order of the court. It is declared: "Where the record shows that the court has ordered the sheriff to serve a copy of the indictment and venire upon the defendant in compliance with this section the presumptions are in favor of the sheriff having faithfully discharged his duty in the absence of any showing in the record. Hughes v. State,
Appellant's counsel state that the court erred in overruling the objections of appellant to the preliminary statements of the state solicitor, viz:
"That the two defendants Henry Daniels, Jr., and Curtis Robinson, have gone together and often discussed and talked about, and expressed the desire to have sexual intercourse with a white woman. * * *
"This defendant and Curtis Robinson, who is not being tried here today, often talked about their desire to have sexual intercourse with a white woman. * * * *679
"Henry Daniels, Jr., and Curtis Robinson were together that night and again expressed this desire."
The nature and scope of respective statements by counsel to the jury have been discussed in many jurisdictions. The general rule is thus stated in 64 Corpus Juris, p. 235, § 251:
"Although it may be omitted if desired, a party is entitled as of right, in a case involving issues of fact, to make an opening statement to the jury. Its purpose and function is to advise the jury of the facts relied on by the party to make up his right of action or defense, to define the nature of the questions involved, and advise them of the issues to be tried so as to enable them to understand the case to be tried. In the statement counsel may outline what he expects to prove (Brown v. Leek,
See, also, 38 Cyc. 1475; Handley v. State,
In Wilkey et al. v. State ex rel. Smith,
"In Loeb v. Webster,
"In Atlanta Life Ins. Co. v. Ash,
In this connection, we observe that there were objections and exceptions to the introduction of the confession in evidence, and in the closing arguments of the state's solicitor to the jury he said, "These boys were going about talking about getting some white woman," referring to the conversations and actions of the defendant in question, and of Curtis Robinson, the defendant in another case presently before this court. The specific evidence on which this argument rested was before the jury by way of the confession of defendant, that:
"Curtis Robinson and I were talking about getting a white woman. This happened about one week ago while he and I were working at Turner Terminals. We *680 agreed to sometime get a white woman, and on last night when we started out of the alley and saw this white woman coming Curtis said 'here comes a white woman let us * * *' and I said all right and we did what I have told."
Both of the remarks were relative to the woman in question.
"About three o'clock yesterday afternoon Curtis Robinson and I were at the C. I. O. Hall on Warren and Elmira Streets and he and I talked about getting a white woman. We agreed to get one last night and when he and I left his house last night we were going to look for a white woman and the lady whom we took in the alley is the first one whom we saw."
When the defendant was on the stand as a witness in his behalf he made denial of the matter above indicated in his written confession as follows: "I did not see this white lady coming along the street and I did not say, 'Here comes one now. Let's get her.' I never saw her before until she came to the City Jail. I never saw this woman until they brought me to the jail. * * * No, sir, Robinson wasn't scratched on the chest and the arms, he was scratched right up here and there. No, sir, this white lady is not the one who scratched him in an effort to get away from him and me, his wife scratched him. * * * As to whether Josephine Jones sat there and pointed her finger at me and said I was the one who had raped this white lady, she said she saw us run. * * * No, sir, I never denied it when Josephine Jones told you that me and Curtis Robinson ran out of this alley because I didn't do it. As for when I was brought in the Police Station where you say Mrs. Zeola Mae Armstrong was sitting on a bench with her husband, and you say she said, 'Yes, that is one of them,' and that I never denied it, she didn't say it. * * * In answer to your question, 'At the Police Station, didn't they bring Curtis Robinson into your presence and he said, "I have already told them all about us attacking that white woman", and then you said that you did too, didn't you', and my answer is, he didn't tell me that. * * *."
Was the action of the state's counsel, in stating the case to the jury and in the argument indicated, an unnecessary and prejudicial and unwarranted appeal to race prejudice? Loeb v. Webster,
Where there was a conspiracy to rape some white woman made by this defendant and a coconspirator in the crime, important facts for the consideration of the jury are the intent and the identity of defendant as to the commission of a crime against a female of another race.
In Jackson v. State,
We are brought to the reconsideration of the later decisions touching the immediate case. In Johnson v. State,
In Wilkins v. State,
On this criminal assault by a negro upon the white woman passing that way, it was an unnatural and unusual act, making competent the evidence indicated illustrating the purposes of the two defendants to commit such a crime and the remarks immediately preceding as to their intent and to identify the accused. In Davis v. State,
The foregoing is sufficient to justify the statement of counsel to the jury of what he expected to show by the evidence of the unusual and unnatural crime and of the identity of this and the defendant in the other case now before this court, which they confederated and conspired to commit on a white woman. It results that there was no error in the preliminary statement of the state's counsel to the jury or that of the several rulings on the same by the trial court as to the introduction of the evidence, and of the observations in argument of state's counsel predicated on such facts.
We have examined the record and hold that the confession made by this defendant and in evidence, over his objection and exception, was properly introduced, a sufficient predicate having been previously laid for its introduction under the many decisions of this court which obtain. Redd v. State,
We may observe of the exhibits of clothing worn at the time and place in question which were offered in evidence, that they were material by reason of the fact some of them were marked or printed in the name of the defendant and further the evidence showing that at the time it was drizzling rain and the shirt was wet in the back and the pants were soiled below the knees. The tests or analyses made of the different and significant stains on defendant's clothing tended to show the recent sexual intercourse, and the more specific stains and soiled places on the front of defendant's pants and those from the knees down were to like effect. 22 C.J.S., Criminal Law, p. 1216, § 713; Crenshaw v. State,
The articles of wearing apparel were properly identified by the evidence. Pate v. State,
There is an assignment of error based upon the ruling of the trial court in this: that the state's witness Rollins, being cross-examined by appellant's counsel, had testified that "after this boy (appellant) was confronted with the other one (we interpolate Curtis Robinson), and admitted his guilt, we decided to get them over in the county jail for safekeeping," and "we brought him (appellant) over to Dr. Grubbs' office in a car. * * * Dr. Grubbs' office is on the ground floor of the jail." Following this the question was asked by defendant's counsel, "You stated that these defendants were taken to Dr. Grubbs' office, which is right on the street, in order that they would be safer there than they would in the police station?" This question sought to elicit facts without *682 the record, and the objection of the state's counsel that the same was incompetent, irrelevant and immaterial and argumentative was properly sustained.
The witness John W. Corsey was examined on direct examination by appellant's counsel and testified that he was in the C. I. O. Hall on the night of August 19, 1941, when a lady, the prosecutrix, came in with some police officers and was asked the question, "Did she at that time identify a person in the C. I. O. Hall as one of the persons who attacked her?" and "Did she at that time point out a boy in that hall as the one who attacked her?" To these questions, the state's counsel objected, objections were sustained and exceptions duly reserved. These questions called for a collective fact as to her having identified or pointed out some other person than the two defendants or the one of them now on trial as being the perpetrator of the crime in question. The many cases of shorthand rendition of fact from this jurisdiction are set out in 69 A.L.R. 1169. We also refer to a line of our cases on this subject from Reeves v. State,
No doubt the court was ruling under the law that obtained before the Acts of 1927, p. 636, now Code 1940, T. 7, § 445, and it was not made plain to him, nor what the answer of the witness would be or its materiality. This, however, was not the rule at the time of this trial. The state's solicitor then examined the witness as to the matter and he fairly answered the question denied by the ruling of the court. Thus, it is shown, and we may here observe, the brief of attorney general informs us, that this question is not presented in the case of the coconspirator, which case is now on appeal here.
Further indicating that the ruling adverted to and made as to witness Corsey was without error, it should be noted, the prosecutrix testified that detective Brown with officer Smith went out to Elmira's Alley that night (the alley in question) between ten and ten-thirty, and the scout car officers took the prosecutrix to the C. I. O. Hall (the time and place indicated in the Corsey testimony), where they had arrested a man by the name of Louis Joseph Pezant, who was there, and she at such time and place and in their presence and hearing, pointed to Pezant and said, "He looks like one of them." This statement was verified by the defendant's witness Pezant, and was the matter sought to be inquired about from witness Corsey, and was as stated by Corsey on further answer.
A further error insisted upon was the action of the solicitor for the state in opening his argument, and in paying a verbal tribute to jurors for coming into court and serving with the court without excuse, and thus discharging an important civic duty, and further stating that he took such occasion, while representing the state, to say this to the jury.
Appellant's counsel urges that the foregoing remarks of the solicitor amounted to an unwarranted and improper appeal, such as was condemned in Stewart v. State,
The able brief filed by counsel, other than that appointed by the trial court on the arraignment, does not specifically discuss the several charges that were refused to the defendant. We have tried to follow the argument of that counsel in determining whether the record discloses error and are of the opinion that when the oral charge of the court is taken with appellant's written charges, the law of the case was properly presented to the jury.
Refused charge 3 is fully and fairly covered by the oral charge of the court.
Refused charge 4 was held good in Prater v. State,
Refused charge 7 was held bad in Wilson v. State, Ala.Sup.,
Refused charge 8 was held good in Elmore v. State,
Refused charge 9 was dealt with in Wilson v. State, Ala.Sup.,
Charge 11, refused to defendant, is incorrect in that it usurped the province of the jury. There are two theories under the evidence in this case. The jury are the judges of the credibility and sufficiency of the evidence. And under this charge the jury would be required to acquit the defendant even though they might believe beyond a reasonable doubt of his guilt after considering all of the evidence. Carpenter v. State,
Refused charge 13 was approved in Edmonds v. State,
Refused charge 14 was held to be a proper instruction in McLeroy v. State,
Refused charge 15 was criticized by Mr. Justice Sayre for the court in Ducett v. State,
Refused charge 12 is bad for the reason stated in Sanders v. State,
In McCoy v. State,
Adverting to the evidence, we may observe that, one cannot carefully consider the testimony of the prosecutrix Mrs. Armstrong, her immediate complaint to Laura Walker, her physical condition detailed by that witness, the testimony of the druggist Cain, of Dr. Newman, of Josephine Jones and of witness Brown (all of which corroborate the statements contained in the written confession of the defendant), together with admissions of facts contained in defendant's testimony, without being convinced that there can be no doubt of defendant's guilt as charged in the indictment and so found by the jury on the trial.
As to the confession in evidence, we observe as was done in the case of Johnson v. State,
"In the cases noted the Supreme Court of the United States reached the conclusion that the confessions were clearly shown to have been involuntarily obtained and in addition constituted a vital chain in *684
the State's case for conviction. Indeed these authorities are rested upon the doctrine that the accused was in this manner deprived of due process of law as guaranteed by the Federal Constitution. Illustrative is the expression of the court in Brown v. Mississippi, supra (297 U.S. [278], 279, 56 S.Ct. [461], 465,
"Nothing similar to such a situation is here presented."
It results from the foregoing that the judgment of the circuit court should be, and it is hereby, affirmed.
The date set for the execution of the sentence of the law on the defendant having passed pending this appeal, it is hereby ordered by this court, that Friday, the 26th day of March, 1943, be and the same is hereby set for the execution of the sentence of the law on this defendant.
Affirmed. Date of execution set for Friday, March 26, 1943.
All the Justices concur.