6 Div. 430. | Ala. Ct. App. | Apr 7, 1925
From a judgment of conviction for the offense of robbery and a sentence of 10 years' imprisonment in the penitentiary, defendant appeals.
The evidence in this case discloses without dispute or conflict that Benton Burchfield, the alleged injured party named in the indictment, was robbed of the sum of $50 in lawful currency of the United States of America; that is to say, that the said sum of money was feloniously taken from his possession and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same.
The indictment charges that this defendant committed the act complained of, and the vital question is whether or not the crime was committed by the defendant. Several witnesses gave testimony which tended to show that this defendant and another white man, one Chapin, held pistols upon Burchfield and took the money away from him, representing at the time that they were officers of the law. There was also evidence of inculpatory statements by defendant, voluntarily made; and the defendant was shown without dispute to be a man of general bad character. On the other hand, the defendant denied that he was the man who robbed Burchfield, and also denied that he made the statements attributed to him. He also offered the testimony of one Monicue Morris, colored, to the same effect. This conflict in the testimony presented a question for the determination of the jury.
There is no merit whatever in the motion to quash the venire. The demurrers to the indictment were also properly overruled; and, for the reasons stated as grounds of demurrer to the plea of autrefois convict, the demurrers to said plea were properly sustained.
The record is replete with innumerable objections and exceptions, and, while each of the exceptions has been examined and considered, as the law requires, we shall not attempt a detailed discussion in this connection, as no good purpose could be subserved by so doing, and to undertake a discussion of the insistencies of error here made would extend this opinion beyond bounds, and would of necessity entail upon this court arduous and unnecessary labor.
Defendant offered himself as a witness in his own behalf, and upon cross-examination was asked by the state:
"Q. I will ask you if you didn't swear down there that you had had trouble down there at *4 Burchfield about some liquor and some money, and that the liquor was outlawed stuff, and you would like to see them sons of bitches do anything with you about it?"
Defendant answered:
"I did not."
And further testified:
"It is not a fact that in coming from Birmingham in the automobile with Reeder and Mullins that I first asked them what they had me for, or that they told me they didn't know, or that I told them that I knew what they had me for, that they had me for some trouble down at Taylors Ferry, that I did that that son of bitches liquor down there and that liquor was outlaw stuff and that I would like to see them do something with me — I didn't tell them any such thing."
He also testified on cross-examination that "he had had no trouble with Mullins and Reeder." The above questions and answers were over the defendant's objections and exceptions, and defendant also excepted to the rulings of the court in allowing said witnesses Reeder and Mullins to testify in rebuttal that defendant did make such statement. There was clearly no error in any of these rulings, and the insistence of appellant in this connection cannot be sustained.
On further cross-examination of defendant, and over his objection and exception, the following occurred:
"Q. Do you know these officers you had summoned down here from Birmingham? Ans. Why, yes, sir; I know them when I see them.
"Q. You used to work with them on the force up there? Ans. No, sir; the names of the officers I had summoned down here are these — one is named Disheroon and the other is named Mr. Walker and the other Mr. Green; I don't know their initials."
In this connection the following is shown by the record:
"Thereupon the case was argued to the jury by counsel for both the state and the defendant, and during the course of the solicitor for the state's closing argument, he argued the following: 'I asked him who those witnesses were, and he said Disheroon, and Walker and Green, and after they got down here he didn't put them on the stand, but he swore that he had summoned them.' Thereupon the defendant objected to said argument of the solicitor, and moved to exclude it from the jury, on the ground that it was highly inflammatory to the jury, and is taking advantage of the defendant, because the defendant didn't put those witnesses on the stand, and didn't vouch for them; that they were state's witnesses, put on the stand for the state, and testified for the state. The court overruled said motion, and to this action of the court the defendant there and then, in open court, duly reserved an exception."
That this argument was not necessary to a conviction in this case is apparent. That it was unfair and of doubtful propriety cannot be doubted. That it had no place in this trial is manifest, for a defendant may in all good faith cause a subpœna to issue to witnesses from whom he expects to secure evidence favorable to his cause. The fact that he was mistaken, and that the testimony of the witnesses was adverse rather than favorable, and he failed to put them on the stand for that reason, should not be emphasized in argument or otherwise; nor should it be referred to, or considered in order to injuriously affect the substantial rights of the defendant. The fundamental law is that, in all criminal prosecutions, the accused shall not be deprived of life, liberty, or property except by due process of law; and due process of law means that he shall be tried according to the law and evidence in the case. However, here we are not prepared to predicate reversible error on the rulings of the court in this connection, for the reason of the overwhelming trend of the testimony tending to show the guilt of the defendant as charged, and we cannot say that we are satisfied that injury resulted to defendant in this connection, or that it prejudiced the jury against him. Code 1907, § 6264; Sup. Ct. rule 45.
After duly considering each and every exception reserved to the rulings of the court upon the admission and exclusion of the testimony, we are not willing to predicate reversible error upon any of them. We think in such instances as error may appear that such error did not injuriously affect the substantial rights of the defendant. Code section supra. This section of the Code provides that this court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.
From what has been said, charge 1 was refused without error.
There was no error in refusing charges 2, 3, and 4, requested by defendant. They were either abstract or do not state correct propositions of law.
After a consideration of the entire case, we find no error of a reversible nature, and as a consequence the judgment appealed from is affirmed.
Affirmed. *5