382 So. 2d 1187 | Ala. Crim. App. | 1980
Charles Morrison was charged by indictment with the second degree burglary of the Albertville Country Club. The jury found him guilty as charged and the trial court entered judgment which set sentence at three years imprisonment in the penitentiary.
The facts in this cause are as stated in the companion case of Trammell v. State, Ala.Cr.App.,
Terry Lynn Posey, a neighbor in a trailer adjoining that of Doris Nix, told of his conversation on the morning of September 24, 1978, with the defendant, Charles Morrison, who opened the trunk of the automobile in which he had been riding the night before and discussed the possibility of selling some golf clubs and a bag which were in the trunk of the car. Mr. Posey indicated in response to a question (R. p. 86):
"Q. Describe what you saw in the trunk of the car. *1188
"A. A red toolbox, gold clubs, golf bag, some little towels and some cigarettes, a pup tent and some sandwiches and a bottle of liquor and some beer."
Posey stated that the defendant gave him a beer and offered him some sandwiches which were packaged and in the trunk of the car.
At the close of the State's case, the defendant moved to exclude the State's evidence on the ground of failure to present a prima facie case and also requested the affirmative charge. The trial court denied both.
The trial court then granted a five minute recess at the request of the district attorney and allowed defense counsel to be present during the ensuing conversation between the district attorney and the prospective witness, Mrs. Morrison (R. p. 22).
The record then discloses the following colloquy (R. pp. 22-23):
"(WHEREUPON, the Defendant present in open court with his attorney, the following proceedings were had and done outside the presence of the Jury:)
"THE COURT: Ma'am, you have discussed the matter with the District Attorney and Ms. Bush, the Defendant's attorney who was present with you.
"THE WITNESS: Yes.
"THE COURT: Have you decided whether you wish to testify?
"THE WITNESS: Yes, I will.
"THE COURT: You are going to testify?
"THE WITNESS: Yes.
"THE COURT: All right. That is your choice.
"Was there any coercion or anything used against you that would make you testify?
"THE WITNESS: No.
"THE COURT: This is a voluntary choice on your part?
"THE WITNESS: Right.
"THE COURT: All right. Bring the Jury in.
"We would like the objection still noted.
"MR. THOMPSON: We would like to make sure that the record shows that during this recess Ms. Bush was present, the Defendant's lawyer was present in our discussion.
"THE COURT: All right.
"MS. BUSH: Please instruct the witness not to answer if an objection is made.
"THE COURT: Now, Mrs. Morrison, if a question is asked and an objection is made, give me a chance to rule on it, and then you may answer when it is ruled on.
"THE WITNESS: Okay.
"(WHEREUPON, the Defendant present in open court with his attorney, the following proceedings were had and done in the presence and hearing of the Jury.)"
Appellant's counsel asserts that the appellant's wife was coerced or intimidated into testifying against the appellant, citing us to §
We have carefully examined this record, including the colloquy above set forth, and are of the opinion that the trial court property determined that Mrs. Morrison wished to testify, and that such a voluntary act on her part, after full explanation of her right not to testify against her husband, *1189 was in accordance with the Code section in question. While the appellant's counsel asserts that such was not voluntary and was the result of intimidation, such as "mere argument in brief" and not substantiated by the record in this cause.
We believe the following statement by Mr. Justice Harwood, then Harwood, J., of the Court of Appeals, in Wyatt v. State,
"There is a duty on every person to testify in judicial proceedings, as the public has an interest in the proper and just conclusion of cases brought into the courts of a sovereign power. In the interest of certain policies certain classes of witnesses may be exempted from this duty, even though such exemptions may tend to interfere with full disclosure of facts. Among such classes of witnesses who may be exempted from testifying are attorneys who stand in relation of attorney and client to one of the parties litigant, priest in relation to confessor, etc., and since the enactment of Section 311, Title 15, Code of Alabama 1940, providing that husband and wife may testify either for or against each other in criminal cases, but shall not be compelled to do so, there may be added to this exempted class of witnesses, husband and wife. "This testimonial exemption is however a privilege, purely personal to the witness, and is solely a matter between the witness and the court.
"Thus even though Mrs. Wyatt had told the Solicitor she did not wish to testify against her husband, this was but an expression of her then existing intent, in no way binding on her and subject to being changed the next moment."
There was no error in the trial court's ruling on this question.
We have carefully examined this record and find no error. The judgment is therefore
AFFIRMED.
HARRIS, P.J., and BOOKOUT and BOWEN, JJ., concur.
DeCARLO, J., not sitting.
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