Jarrell v. State
50 So. 2d 767
Ala. Ct. App.
1949
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*1 alleged press approval disapproval was com- our or these offense shortly after the insistences, clearly as to for mitted, manner and we are like also testified opinion prevailed of the that errors if any and cross exam- her direct condition. On struck admitted he ination the defendant connection with the by statements said the woman, inflicted he court, counsel, the but denied not they and State’s were referred to. upon her above severe wounds erroneously injure calculated to de- the injured he testified party did. fendant since conviction for mis- only; appeared and demeanor even if error battery, case, and In this as assault injury are we satisfied no that resulted jury province duty and was the Therefore, therefrom to the defendant. un- evidence, from and determine consider statute, supra, justi- der the we would be not inflicted whether or the defendant judgment reversing fied of conviction woman, and also upon wounds serious appeal which this from was taken. contrib- defendant had determine toup which led and situation uted Affirmed. difficulty. caused the any all or reciting refrain from sordid voluminous and careful upon From a the trial. adduced testi- of all the attentive consideration and full, are we mony, which we read fully jury was opinion that clear 50 So.2d 767 returning their verdict. warranted in JARRELL v. STATE. appellant fact, the court it occurs to 5 Div. 272. thankful very grateful and should be Appeals Court of of Alabama. a misdemeanor was for

his conviction May 24, 1949. felony, the indictment for which charged. Rehearing 21, 1949. Denied June the law appeal appellate courts to the Affirmed on Mandate March character, no provides, in cases of this Rehearing April 11, 1950. Denied in errors joinder or assignment of errors court upon the necessary, places but it questions ap- duty considering all by record, reserved upon or parent judgment

exceptions, and must render such provides also This law

as the law demands. conviction must not judgment

that the error, when the because reversed

be injury that no resulted satisfied court is 15, Sec- to the Title defendant.

therefrom of Alabama

tion Code duty required performed our as

We have duly We have 'foregoing statute.

by the in the every question record to

considered reserved, of which exceptions were majority A hundred. several

there upon alleged exceptions based were these jury;

improper remarks alleged improper state- also numerous argument and otherwise

ments pending the trial prosecutor special upon feel called do not rape. We *3 Walker, A. Walker and Walker & Jacob Opelika, R. Wallace C. C. S. Moon, LaFayette, appellant.

CARR, Judge. This is appeal the second of this case. *4 36 So.2d 336. Jarrell After remandment of the iby cause Supreme Court, appellant was convicted of murder in degree. the second review of appeal, former Justice Lawson delineated the evidence with con- siderable care and in much detail. In the proved main the appear facts in the instant record without change, material with the exception that the testify defendant did not in his behalf at the first trial. Statements and declarations which he others, made to after the wife, death of his appear as a part description of the facts in the opinion. former This constituted in a large measure the effect his trial of instant concern. We entertain the view that facts incident testimony of the ac cused the case at bar do not alter the factual issues extent general that the affirmative charge was appellant. due the think, also, that we would be out of harmony holding with the in the former opinion to here declare that the court was Gen., Carmichael, Atty. A.A. and Jas. ei;ror denying the motion for a new Gen., Atty. Hardin, T. for the State. Asst. trial.

Appellant’s counsel asked two wit questions by nesses several sought he show had a fainting deceased spell days prior about three to the time she subject died and she was spells. to such urged proof is that this sup would have ported the defendant’s’ statements that he thought his wife had night fainted on the of her death. materiality We cannot see the of this in- quiry. any event, appellant In testified, objections,

without that his wife was af- flicted in this manner and that she had been physician’s under a care for the ailment. the' self-serving or disputed to the rule declaration therefore, any not, relate It did hearsay doctrine. matter evidence. proof in refusal admit is a “self-serving A declaration” error, instance, was rendered_ the first fav statement made out court which subsequent by the to the accused harmless of the declarant. orable to the interests effect. of the facts in substantial disclosure Unless, recognized reason, it 1940, Tit. 45, Code Court Rule exception general to the comes within Appendix; Pressnall v. rule, admissible such a declaration by the when favored tendered party, gestae. if not a res direct examina- connection In .proof prime objection to this character of sister, occurred: appellant’s tion hearsay rule. is that it does violence to the “Q. early morning August Further, opens door to the introduc brother, Jarrell, your Seaborn 26th did untrustworthy per declarations tion of Yes, your home? A. sir. come to evi party mits manufacture own you? “Q. Did he make statement dence. *5 Boyd: object, if the Court “Mr. We course, successfully it cannot be Of please. that the of instant contended statement “The Court: Sustained.” part gestae. a the concern was of res We self-serving that it amounted to a dec hold have, Unquestionably could court the susceptible was of laration. It infer an propriety, the allowed witness legal with that, afterthought, an the appellant ence as However, we “yes” or “no.” are answer up building false was factual structure error for this charge not authorized favorable to which was defense. The his appellant on is The burden failure. effect of its admission would have been to prejudicial and harm error that was show permit accused, proof the of own his v. Garrett rights. to his substantial ful subsequent declarations, to make evidence 612, 8; State, Stallings 29 Ala. So.2d 248 for himself. 236; 580, Ala. 32 State, 249 So.2d v. 152, Ala.App. 31 State, So.2d 33 Brown v. preceded proof facts had No in the that 652. exempting would have the effect of the general the matter from rule of nonadmis- review, full counsel afford To sibility. hold, therefore, We that it was inquiry further pursued the have should properly Hall State, disallowed. v. 40 Ala. answer the court what advised and then 698; State, 80, Holmes v. 136 Ala. 34 So. materiality of the mat expected. The 180; State, 11, v. German 181 61 So. content of the appear the from did not ter 326; State, 82, v. 12 Ala.App. Pollard 68 State, 37, 202 79 question. v. Sanders 494; State, Ala.App. 2, v. Key 8 So. 62 So. State, supra; Berry v. 375; Stallings So. 335; Ray State, Ala.App. 382, 29 197 v. 151, So. 663. 145 Dannelly, 226 Ala. v. So. 70. the this same visit connection In general objections Over of counsel the that the defend- mother testified appellant’s' permitted prove by court the State to the fainted. had his wife that told witness ant appellant on cross examination that his solicitor, the court by the motion wife obtained divorce from him on the statement. the cluded cruelty. grounds of counsel urged brief of cogently It is appears couple It that the had subse- al- have been should evidence this that quently living remarried together and were attempt the to establish as an lowed, as wife man and the time of at decedent’s assertion, support rather to but of the truth death. thought that he appellant of contention aspect In this wholly had fainted. The evidence this case wife is of circumstantial. When admission this is made that is insistence factual situation, question done not have violence motive is would a matter statement State, true, v. shown Harden on very being him redirect. concern. This material State, he v. left 656, privilege without 101 So. Jones proof of the complaint facts about which Ala.App. So. is made. Court Rule Mathis State, 21 In case Earnest State, Ala.App. 245, 73 So. 122. court Ala.App. this The solicitor failed adhere to the rule showing a motive for “As to said: when he was cross examining some of the offense, says it an the law commission appellant’s character witnesses.- Instead of prove necessary is not order asking they them if had not heard of cer- crime; always of motive is but prior tain misconduct on the of the words, permis admissible. other accused, counsel framed his case every criminal show sible fact”, this form: “Isn’t it a etc. inducement, influence, op an there was an accused, may led erating We procedure discussed this rule tempted him to commit the offense. or length in the case of Mullins v. gain, may spring from the lust of or 19 So.2d Clearly passion, from gratification of an unlawful the rule pronounced therein was not fol will, hatred, revenge. animosity, ill or The lowed in instant case. will look magnitude motive, or of such wheth extent to the record to determine whether or not small, proper inquiry. or also a great er injury rights inured of the accused. rulings upon subject State, supra; Brown Garrett v. free from reversible error.” supra; Stallings supra. appellant fact and de *6 It is there disclosed that on the remarried, and thus ceased had evinced a comparatively objec occasions when few of their former reconciliation domestic dis interposed tions were and overruled cord, may have rendered the in replied court the witnesses in a manner impotent question on the of conclusive and prejudicial not that to the was defendant. however, This, proba to motive. went its State, Ala.App. 306, ; Minto v. 8 62 So. 376 admissibility. to value rather than its tive Murray State, Ala.App. 253, v. 17 84 So. proof properly hold that was al We 393; Supreme Court Rule 45. State, 451; Ala. Baalam 17 Dun lowed. v. We come now consider the written in- 31, 104; State, 7 Ala. Fowler can 88 So. v. which were appel- structions refused 21, 913; Streety State, 45 So. 155 Ala. v. lant. 415; State, 71, Ala. 51 So. Brothers 165 v. 433; 448, 183 State, 236 Ala. So. Mc v. We have hereinabove pro- illustrated State, 101, 183; 238 Ala. 189 v. So. Dowell priety general of refusal affirm- 226, State, Ala.App. v. 25 144 So. Vaughn charge. ative State, 458; 453, 32 Ala.App. Kozlowski v. 6, 7, 9, 13, Those numbered 12, and 811. 27 So.2d substantially 22 are each covered Complaint urged that on is redirect charge court’s oral or given written in the accused was not allowed free amination 7, 273, 1940; structions. Title Sec. Code privilege explaining the circumstances State, Gettings Ala.App. 644, v. 32 29 So.2d related the divorce matter. 677. legal It that a truism a prop Instruction number 8 was party brings of a into the evidence erly State, 270, v. refused. Scott Ala. 211 transaction, opportunity afforded should be 211; State, 100 21, So. Fowler v. 155 Ala. person explanation give effected 913; Bailey State, 155, So. v. 45 Ala. 133 light reference thereto. In the of this 57; State, 32 So. Goodman v. 15 Ala.App. given familiar we rule due consider have 161, 72 687. So. ap aspect. ation this record in pears appel that on cross examination the charge Refused number 10 is not lant, objections, substantially gave predicated without on the evidence. Edwards v. sought 160, the information State, all be 179; that 205 Ala. 87 So. v. Jones (cid:127)262 reappear 867; They likely Scott v. view. will not 655, State, So. Ala. 96 209 they present trial or 670. their form another Ala.App. 18,

State, 37 So.2d 34 minor merit. refusing error There was no error, that For indicated it is ordered State, 13 Campbell 11. v. charge number judgment reversed and the be below 322; Anderson v. 70, Ala.App. 69 So. remanded. cause 429, Ala.App. So. Wilson State, 93 18 Reversed and remanded. 591, 28 State, So.2d 32 35, State, Ala.App. 36 So.2d Ledbetter v. BRICKEN, sitting. J.,P. not 564. charge number 14 We find that Rehearing. On State, 115 Ala. approved in Pickens predicated Error was 551. 22 So. CARR, Judge. State, Hannigan its refusal original we reversed the submission Spencer Ala. court on account judgment the lower In the latter two So. charge of the refusal written number however, pointed out cases, the court purposes comparison and For illustra- abstract, the evidence charge was since charges will set tion we it out: “The entirely circumstantial. was not jury in this the evidence case of Parsons v. In the recent case you circumstantial and that before can con- 209, our 38 So.2d vict the defendant on such charge. very reviewed a similar Court Jus- proof strong cogent, must be very so court, Foster, writing for the cited tice every much as to so exclude reasonable support of authorities con- number probability doubt and of his innocence.” import charges of should clusion counterpart to charge exact This is an be the evidence given cases where of Pickens v. number 1 the Gase entirely circumstantial. is not 42, 22 So. 551. indicated, in the instant As case we subsequent reviews noted relied a conviction on State evi- *7 opinion. original instruction our entirely was circumstantial. dence The charge in his oral omitted to Attorney ap- instruct General on Assistant The charge purports the doctrine which the directs our atten- plication rehearing for convey; any given nor are to there instruc- the case McDowell 238 tion to v. any aspect. 183, refer presses tions which to rule 101, He Ala. implication by position that case this over- inescapably It follows that must we base in the Pickens holding rules the case in charge on the court’s refusal of error num- charge of instant respect to the concern. ber 14. instruction the McDowell The case is: misleading number 15 Charge that, justify are to Jury “The instructed a v. Pickens lacking in exactness. and of crime on evi- conviction circumstantial 42, So. alone, very it strong dence must be and contains number 17 a Instruction any cogent and must inconsistent be with unquestion error. This typographical theory of innocence.” reasonable typist. How the fault to ably due Anderson, writing Chief for the we are unau Justice remains ever, fact court, disapproved charge for these its for refusal. charge error thorized faulty “It is for the reasons: use of the 1940; Fealy City 273, Code Title Sec. Moreover, ‘very.’ was word Ala.App. 73 So. Birmingham, 15 entirely not circumstantial.” Lile, 154 R. & N. Co. Louisville 556, 45 Walker So. “Very” when used as an adverb means: 36 So.2d 117. high degree; extent; “In to no small ceedingly; respond extremely.” omitted Webster’s We have New Dictionary. for our re- presented International also, are See which Benoist Mo., reference to Mo.App., testimony. S. his former Driveaway Co. of these queries the attention of the witness'' was' W.2d 86. replies directed certain specific ques- applied, the use of With this definition tions, and inquired the solicitor whether or charge Pickens in the adverb > not these answers were made. faulty. the instruction case rendered objections After were overruled the wit- at bar contains charge in the case The not replies. ness did admit he made the He expression cogent”, “very strong and either stated that he did or that he did qualifying and limit- but there follows the not remember. ing every to exclude term "so much so as The matter (Emphasis ours.) pressed. doubt” etc. was not reasonable further say, That tois the solicitor did not make jury, therefore, not left in doubt any attempt prove that the did witness “very”. meaning as to the of the word Its testify to a state different facts purport specifically and restricted lim- former trial. by qualification explanation ited interpretation A which fair followed. in- record inquiry cident to this leads to the conclu- must, course, gov- Our decisions be sion that the prosecuting officer was not at- by erned controlled the decisions of tempting predicates to lay impeachment' Supreme Court. Title Sec. purposes. is true that he did not ex- Code 1940. pressly announce a surprise, unques- but doWe not conclude that the McDowell tionably he realized disadvantage by case, implication, the holding overruled had inured to unexpected State de- are, therefore, in the Pickens case. We parture and variance in the testimony of impelled adopt the-latter and follow the witness. authority. as our application for rehearing is over- Our authorities committed to ruled. party no right that a has to im view witness, peach his nor to own show contra BRICKEN, J., sitting. P. dictory statements made the witness. rule, however, prohibit does not This

After Remandment. by surprise, taken party, when or for the purpose refreshing memory, to ask his CARR, Judge. not he witness whether or had made certain certiorari Court held previous statements which were inconsist in error ordering we were a re- present testimony. ent *8 judgment below. The versal cause our review We think should be made has been remanded this court for fur- approach, from rather than to hold ther consideration. there effort made the solicitor original submission of the On the case it impeach a State’s witness. allowed, that the solicitor was insisted Clearly the prosecuting attorney timely objections, impeach over one of given privilege been should to at the State’s witnesses. We entertained the clarify tempt the inconsistencies that will not likely view that this situation re- developed by calling had the attention of trial, we did not occur at another so re- to his former testimony witness spond to it. refreshing his recollection therefrom in question witness testified at a possible. following sup authorities trial cause. former port Campbell this view: 23 Ala. examination in case at bar On cross 44; Hemingway Garth, 530; 51 Ala. gave evidence was in witness Hall, Alabama Power Co. v. aspects pre- variance with his 867; 103 So. Louisville & N. R. Co. v. given. viously Scott, 232 167 So. Duncan examination the Ala.App. 209, On redirect solicitor v. questions witness several asked the with Griffith 8 So. 812. responded to opinion we original In our merit discussion. other

all authority It follows that Jarrell judg- 50 So.2d State, Ala.Sup., affirmed.

ment ordered below

Affirmed. So.2d 712 v. STATE.

AGNESIA Div. 976. Bishop, Birmingham, for Maurice F. Appeals Alabama. Court appellant. April *9 Carmichael, Gen., Atty. and L. E. A. A. Atty. Gen., Barton, appellee. Asst.