*1 “MR. NORMAN: We move to exclude merit to the degree points of raising re- grounds given immediately it on versible error. preceding question. judgment below is due to be “THE COURT: Overruled. Affirmed. except.
“MR. NORMAN: We
“Q And charge was that a reasonable peri-
for the use of that car time, your opinion?
od of object
“MR. NORMAN: We
to that as
properly predicated,
not
shown
he had
to use his
object
question
car.
brother’s
We
STATE.
irrelevant,
being incompetent,
and im-
material. Appeals Court of of Alabama. I will overrule. Oct. 1967. happen. think he can tell what did Rehearing Denied Nov. asking He “MR. NORMAN: him if it reasonable, please, if the Court is the question.
“MR. may ZEANAH: You answer. except
“MR. NORMAN: We
“A thought so.
“Q right. All many miles, And ap- how
proximately, you put on that car in period? object
“MR. to that as NORMAN: We
incompetent, irrelevant, immaterial, and
illegal.
“THE COURT: Overruled. except.
“MR. NORMAN: We Approximately
“A two thousand.” think,
We under authorities cited in
McElroy, Ed.), 128.11, (2d Evidence there § overruling
was no error in Thomas’s motion testimony.
to exclude this Farm Industries Quaker Howell,
Div. of Oats v. (hn. 2). 95 So.2d 808
VIII. assignments
We consider the other
argued (No. 10 and 11) No. are without *2 approximately valued $150.00.
The as follows: witness testified “Q. you examine the immediate Did area? Sunday
“A. Yes sir. saw cow my boys morning and went back with cow; after church to remove she up and I saw that the dead and swollen shot twice head cow had been drug steps and a four wheel vehi- about 20 up cle to the location had backed close it, attempt to load looked like an somebody to that I called for is when investigate it.
“Q. drug been Had she towards gate?
“A. sir.” Yes that he was the owner Cotton also stated of this cow. on
Michael Davidson testified behalf of appellant; that knew that State cattle theft “in this been n Minette, Hayes, Bay appel- Wilson case”; pled guilty that he had lant. yet court; been sentenced. but had not appel- The that he was with witness stated Gallion, Atty. Gen., Mar- MacDonald 7, 1967, January night lant on the Atty. Gen., Mooneyham, lin Asst. Davidson, Jerry the witness’ first State. cousin, accompanied The fur- him. witness ther testified as JOHNSON, Judge. you [appellant] “Q. and he What was convicted at night? do that the Circuit Court of Term of “A. a cow. We shot County, for the of cattle Alabama offense “Q. Where? years to a term of ten theft and sentenced Penitentiary. judg- From said the State “A. House Forks. White ment, appeal made. “Q. whose it was? know cow Do that he lived known as Minette, was found leased, cattle; one of his cow Mr. Lewis operated gate going into weighed “about that on Alabama cattle “was “in one a farm there on Cotton testified for the State six miles Beebe twenty about or about in Baldwin “700 Farm”, killed”; steps field”; southwest of January fields or or 750 which from County; he raised this cow pounds” pasture Cotton fence Bay cow how much she “Q. “Q. Whose? “A. Yes sir. [*] “A. Lewis Cotton’s. “A. A “Q. How Do [*] shot? big you have big, approximately, was cow. might have [*] [*] any opinion weighed [*] ? [*] cross-examination, the witness stated pounds. “A. About 700 years age; that he was nineteen “Q. try her in Did to load Mercury; that he the car used trunk ? car killing drove the to Mobile after “A. sir. Yes home; (the went cow and then *3 peach cup of witness) had had about “a “Q. tried to her? Who load brandy” they were all and night that that “A. All us. of except and drinking brandy appellant; he (the witness) that had not discussed “Q. you? all Name case with solicitor but had discussed officer. probation with sheriff Me, Jerry, “A. Horace and De- fendant there.” Mr. State B. M. Rilcard testified for investigator that he is for the State an The further stated that because witness and that he investi- livestock division weight they the cow to were unable gated cow and the death of Mr. Cotton’s dragging load her into the car after her jail appellant had a with conversation car; parked agree- that he an “had Garner, Deputy Chief with Mr. Sheriff ment appellant with” was as to what County, present time and at one cow; done appellant’s with that uncle present He stated solicitor the other. buy was going pound” the cow for “250 him and that “Mr. and I both told Garner him”; and skinning and that “$5.00 right told he had to counsel him that appellant pointed had out which cow to any questions what- before he answered shoot and “Horace shot him first” and that ever”; appellant he “that he that advised (the he actually witness) killed cow. any questions at all didn’t have to answer cross-examination, stated witness to”; appel- he if didn’t that he told want that years old; eighteen he was that he had and that right lant had a sold appellant’s muskrats to about uncle one, employ if he would could not State cow; three weeks the shooting of the him; anything employ and that one for that buy said uncle had stated that he would him appellant against be said could used “any game kind get”; that could said a court testi- of law. The witness further gotten uncle had mad at him had because he freely appellant fied that made a statement squirrels, muskrats; wanted that Hor- hope voluntarily without offer or ace boy Clark was the third who had been inducements; any reward or threats or appellant, pled with and Clark had also that and no not intimidated was guilty; (the witness) that against force was him. The witness used “hoping” get probation but had not made at testified that the statement was talked Hendrix, with Mr. the Circuit Soli- after- about “4:00 or 5:00 o’clock citor, about case. day appellant noon” of the same Mobile, brought jail from was the Horace testified Clark for the State that day He of his arrest. continued: he had also been cattle with theft “in pled guilty; this case” and had that he “Q. he tell at that What did time? only once, night had met the shooting cow; boys the four that sorry “A. He told us he was arrived at place Mr. “about Cotton’s 9:30” that he had lied to tous start with about cow”; “we killed the the wit- picked up, it—when was first ness shot first “Mike shot [Davidson] boys— he was the other three her”, cow; killing they moved the cow but unable to her object were load into the “MR. HAYES: —I would like car weight; her appel- because of and that —This testifying witness is now lant selected the cow which be shot. would there was other —or another conversation brought Mobile” and that from no evidence and we have made previously present at Rikard and the Solicitor that. testimony time. He corroborated objec- Overrule COURT: “THE ap- explanation of Mr. Rikard as to
tion. rights, pellant of his constitutional thought appel- witness) (the stated Except. They HAYES: “MR. voluntarily “freely and lant’s time— him already interrogated one then The rested. made”. State it in You have excep- given record from jury was excluded the court- ahead. tion. Go appellant’s counsel made a motion room and grounds to exclude the evidence on Thomp- by Mr. arrested “A.' He was *4 case”; a has not made out “that the State son— only connecting appellant evidence the tell ahead and Go accomplice”; testimony case of an “is you ? what he told alleged con- else an confession that all is it was because tended to be inadmissible presence the “A. He in told us was in cus- long appellant was not shown how boys cow the other three when the the introduced tody whether statement or help load killed and that he tried was or the was first conversation into evidence it in the back of the car and fact, not, second; it in “because and they go hunting, over to but decided come then stated The court confession”. others— n kill cow instead and these following: Jerry Davison, Davison had come Mike up picked his over to Mobile and uncle why don’t have don’t “I understand uncle at the Cafe and his came Acme they what ought to know the officers-— got around house with them and to his they arrested, day and when man Jerry and him and he came back with interrogated I understand him. don’t they Mike and Horace Clark’s went to testify that they why come in and didn’t got in the him and went out house 8th, 9th, 10th or when- it on or pasture there killed and that the cow deny the going it am ever was. cow first Horace Clark shot In the first reasons. motion several it Mike shot the second time.” more place, don’t know —when accomplice would whether than one Appellant’s then counsel moved to says say law that is uncorroborated —the appellant testimony exclude the statement of on you have the uncorroborated if grounds that “it shows that was not this accom- accomplice you an have three — interrogated time first he was and the plices, two testified qualified first time has not been said defendant Rikard testified proper predicate” Ap had not been hunting, laid. they deer thought going pellant exception reserved when par- get and he agreed go a cow but However, was denied. motion since dragging it and ticipated trying in to load other record reflects no confession all there, appears up and/or and that by appellant, appel statement wc feel deny need and I corroboration we Thus, prejudiced. lant was not there was the motion.” appellant’s overruling no error motion. by the court that The statements “testi accomplices other Garner, Deputy corroborated Chief Sheriff of Willard accomplice” mony were erroneous. County, testified State, Ala.App. 42 of Evans v. The case investigation he had conversation 796, 587, county day “the 172 jail So.2d on
167
n
testimony
accomplice’s
may
“Another
practice making
“The
opening
state-
but cannot be corrobora-
jury
be cumulative
ments to the
ex-
as to
counsel
what
State,
126,
Ala.App.
Morris
17
pect
unnecessary
tive.
v.
prove
the trial
on
but,
82
useless,
So. 574.”
by
when allowed
cqnfihe
court,' counsel should
himself
State,
126,
Ala.App.
Morris v.
See also
17
upon
statements based
facts ’admissible
However, the
HENDRIX,
the
Attorney,
District
discussing
incompetency
the evi-
of
stating
Jury
begin-
the case to the
at the
dence of a conviction
one
of
co-indictee
trial,
ning
following
he made the
against
(after
many
another
citing
deci-
statement:
apt
sions
here), said:
Defendant,
‘This
along with three
Kerley
‘While Powell and
were indict-
boys,
pled
other
already
who have
jointly,
ed
the crime
na-
several in
guilty,
at
were indicted
Ses-
guilt
depend-
ture. The
of one was not
Jury—
sion
the Grand
upon
ent
guilt
other.
If one
pleaded guiltyj
were convicted or
“MR. HAYES:
We move for mis-
would not be
guilt
evidence'of the
right
trial
now. His comment:
‘ALL
other;
acquittal
nor would the
OF WHOM HAVE PLED GUILTY’ is
be
one
evidence
innocence of
’
* * *
to
Defendant —and has
the other.
already done so—
Price,
term, Judge
citing
“At our last
Deny
the motion.
foregoing,
authorities
addition
applied the same rule to reverse
con-
except.”
“MR. HAYES: We
out,
brought
over
viction where the State
by
solicitor,
This statement
in our
accomplice’s plea
objection,
guilt
opinion, prejudiced appellant
eyes
State, 39
same offense. Evans v.
jury.
Ala.App. 498,
State,
The case of Rowland v.
31 Ala.
“This view seems fundamental and
.
605,
881,
App.
part
20
is
(with
exception)
So.2d
but one minor
stated
states
“ * * *
by
major premise
there was
annotation
no statement
as the
of the
1,.
1016,
Solicitor
at 48 A.L.R.2d
find in
effect
the State ex-
for we
§
pected
tending
to offer evidence
the first sentence:
to show
”
* * *
boys”
pled
that these “other
had
joint-
persons are
two or more
‘Where
guilty.
of-
criminal
ly indicted for
several,
State,
nature
Higdon
fense
its
case of
v.
25
of-
209,
separately
for
213,
are
.such
143 So.
or
indicted
guilty.
pleaded
has
This
be-
separate
growing
victed or
offenses
fense or
circumstances,
competent
satisfactory
are
evi-
of the same
cause
out
person charged
against
de-
with an
the fact that one
dence
one
separately,
tried
necessarily
against
an-
pleaded guilty
has been
so
or
offense
fendant has
rule,
charged
inad-
the same of-
is,
general
person
with
as a
other
convicted
other,
against
since
person charged
Each
with
missible as
fense.
competent
satisfactory evidence
be tried
commission
an offense must
person charged
upon
his
legally tending
with
of-
to show
against one
evidence
necessarily
against an-
guilt
so
v.
fense is not
or innocence. See State
Gar-
;
person charged
gano,
(1923)
the same of-
other
with
of this we prejudiced that it
feel that was so by error allow by jury with-
solicitor considered *6 any clarifying
out instruction from court. 204 So.2d is, judgment in cause therefore Johnny Lee MILLER hereby same is due remanded. Reversed and STATE. Application Rehearing Div. 147. Appeals of Alabama. Judge.
JOHNSON, Court of Nov. that the remarks of the The contention attorney opening district to-wit, defendant, along jury, “This hoys, already who three other
pled guilty, indicted at were ” * ** Jury Grand Session appellant is renewed time; however, agree with cannot we
this contention. State, Fla.App., The case of Thomas v. as follows: rule, improper
“As a general prosecuting to disclose been con-
trial that another defendant had