*1 explains nonapplication of where Augusta Bank
the rule in National Co., supra,
Baker Hill Iron state- Riley
mеnt De Graffenried Justice Fletcher, supra, charge in his discussion
3 in case. We find no record principle quoted
above subsequent de-
has ever been followed
cisions, regarded merely as and must notice failing to take
an inadvertence in Boast, supra, Fletcher,
Long Riley
supra.
According due consideration to find- indulging ing learned case, presumption in required such we escape the that the trial
cannot conclusion granting into the relief fell error
prayed in the bill. It is our considered hold, appellees
opinion, and we so granted entitled the relief
were not ap- the decree decree. results
pealed from will and one here be reversed bill last amend- dismissing
rendered lands quieting
ed title suit appellant.
favor of
Reversed and rendered. LAWSON,
LIVINGSTON,- J.,C. GOODWYN, JJ., concur.
SIMPSON
MYHAND Div.
Supreme Court of Alabama. 30, 1953.
Rehearing Aug. 6, 1953. Denied *2 Geneva, Mulkey, appellant. A.
Jas. Garrett, Gen., Straub, Atty. Si Robt. Gen., Atty. Asst. for the State. were in accord with the verdict. Motion appeal for new trial was overruled. appeal is under the here automatic statute. *3 15, 382(1) 382(13), 1940, Title Code §§ — Part, pp. 1951 Cum.Pocket 100-104. alleged The locale of the crime is a farm- ing community part in the eastern County Geneva where and prosecutrix both lived. Prosecutrix, Shelby Edmondson, is young a girl, white daughter of a tenant quite farmer. She was years thirteen age at the time the crime is. said to have been committed.
Appellant, Myhand, Reuben young ais Negro twenty man who was years about age at the time of the alleged crime. He parents, lived with his who were also tenant farmers and who lived on the farm of Mr. Clyde Merritt, a short distance from the home of the Edmondsons.
We see
necessity
no
for making a de-
tailed statement
evidence. For the
purposes
appeal
of this
we think the fol-
lowing summary will suffice.
prosecutrix
The
testified
shortly
af-
ter
May 21,
two o’clock on
afternoon of
1952,
two-year-old
when she and her
way
brother
on
to a field where
parents
her
and another brother were
working,
stopped by
she
Negro man,
a
who had a handkerchief over his face and
pushed
who
and shoved her
deep
a
into
ditch,
growth.
bordered
thick
While in
the ditch she removed her underclothes as
PER CURIAM.
the result of threats made
the Negro
appeal
man,
The
is from a
private
con-
thereafter
inserted his
rape,
part
with
vagina.
viction for
infliction of
death
into her
While in the ditch
penalty.
the handkerchief
fell from the man’s face.
replaced the
He
handkerchief
face,
over his
alleged
crime
date of
was fixed
gotten
but not until after she had
good
a
21,
Appellant
May
was indicted
look at him. The man was wearing a
County
grand
July
of Geneva
on
safety pin
shirt with a
brown
in it and over-
1952,
24,
arraigned
day.
on
He
pants.
employ
prior
counsel,
was unable to
so
pro-
arraignment
the trial
under the
After she was released
assailant,
her
15,
Code
as she and her
visions of
Title
little brother returned to their
§
amended, appointed
represent
remaining
home and after
there a few min-
ap- utes,
Upon arraignment, Myhand,
him.
went
the field
par-
where her
pellant,
guilty
guilty
working,
reported
ents were
where
pleaded not
and not
she
above,
insanity. As shown
thе fact of the attack.
reason of
Prosecutrix was taken
imposed
Slocomb,
town,
nearby
guilty
found him
the to
where the at-
reported
penalty.
Judgment
police
death
sentence tack
authorities
alone,
ele
Penetration
other
prosecutrix was examined
where
rape
concurring,
vagina
the ments of the crime
The fact
physician.
completion
penetrated
regard
actual
recently
without
girl had
young
1940;
testimony.
Title
Code
sexual act.
by medical
definitely
§
established
1019;
Posey
143 Ala.
Clyde
tеstimony Mr.
According to
325;
Herndon v.
Waller
appellant, who was
Merritt,
employer of
Ala.App.
Harris
So.
witness,
talked
saw
as his
called
Ala.App.
So.
four o’clock
appellant at about
only
The evidence was not
sufficient
have been
is said to
crime
afternoon
*4
charge
the
the
take
case to
to
appellant
talking to
While
committed.
rape,
amply
support
but was
sufficient to
of
by
name
the
man
a colored
home of
the
jury.
the verdict of the
through
heard
Merritt
Taylor, Mr.
of
upon
alleged attack
person
the
of
another
very little,
any,
There was
evi
Merritt
im-
girl.
young Edmondson
the
plea
tending
support
to
the
of not
dence
home,
the Edmondson
mediately
to
went
insanity.
by
guilty
reason of
Certain it
by
description
the
given
he
the
heard
where
say
that we cannot
was not
had attacked
man
the
who
girl of
young
justified
appellant
fully
finding
in
officers,
police
who
the
He contacted
her.
upon
the
which
failed to meet
burden
was
home,
Taylor
the
accompanied him back to
clearly prove
him
this defеnse
the
to
to
rea
gone to his home
left and
appellant had
but
422,
satisfaction of the
sonable
§
away
distance
from
just
short
situate
1940;
15,
State, 81
Title
Code
Parsons v.
Mr. Merritt
Mr. Merritt.
of
residence
854;
577,
Wingard
State, 247
2 So.
v.
Ala.
appellant at his
police
found
and the
170;
State,
25
Hall
248
So.2d
v.
Ala.
wearing
similar to
clothes
He was
home.
566;
Lakey
State,
26
v.
258
Ala.
So.2d
alleged
by
worn
have been
to
said
those
116, 61
Ala.
the Ed-
Appellant was taken to
rapist.
appointed
were
The able counsel who
to
by
he
identified
where
was
home
mondson
Myhand in the court below have
defend
placed
he was
girl and where
young
represent
appointed to
him on
been
this
arrest.
under
appeal, and we thinls it
order
observe
to
arrest, appellant
Shortly
appointed
after his
was
point
patrol
point
car
highway
responsibilities
to
in a
seriously
driven
have taken
Geneva,
county seat
city
of
duty
of
full
intelligently
near
have done their
County.
having
been determined
Geneva
and well.
appellant in
confine
advisable to
it would
main,
appellant
cоunsel for
In the
brief
jail,
placed'
County
was
the Houston
argue
judg-
for reversal
filed here
of
patrol car and driven
highway
to
another
by
of
ment below because
admission
Dothan.
court’
by
trial
of certain evidence offered
because of
State and
positive identification
from the
Aside
State’s counsel.
prosecutrix,
the State in-
appellant
guilt
admissions of
evidence
troduced
appear
Reversible
does
error
and also introduced
by the defendant
permitting
action of
trial court in
tend-
a scientific nature
certain
questions
leading
the solicitor to ask
party
appellant
ing to show
Edmondson,
prose
Shelby
witness
June
young girl.
attacked
who
cutrix, who at the time of the trial was thir
State,
years
age.
teen
91
Brassell v.
Ala.
Myhand
guilt
denied his
theOn
679;
State,
45, 8
Puckett v.
213
So.
Ala.
alleged
con-
repudiated the
211;
State,
105 So.
Stewart v.
26 Ala.
him
they were extorted from
tending
112;
App.
Ballew v.
23
sought
He
to establish
methods.
coercive
Ala.App.
So.
alibi,
we read
but as
the record
an
undergarments
at the time
worn
Shelby
as to his whereabouts
alleged
to have
com-
Edmondson at
attack
the offense
properly
mitted stands uncorroborated.
identified
shown
were
were
wanted
keep
expert witness to con-
clothes
testimony
an
for evidence.
undergar-
Moss
the confessions or Arrington to refuse answer. State, properly before 43 Phillips Ala. and cases Extrajudicial confessions cited. inadmissible involuntary and prima facie instance on first duty in the rests suspect questioning The of a while whether or determine court to custody in the of law enforcement officers it voluntary so and unless confession prohibited either law is not common Thom admitted. appears, it should Amendment, nor Fourteenth is a or 124, 57 So.2d as v. solely by inadmissible confession rendered that it was made while virtue the fact per trial court would Before custody in the of such offi the accused introduction mit of this the decisions Under cers. confession nature of statements is made while the de that a confession appellant, fact made alleged to have been does not render was under arrest fendant for the treat required to account State was inadmissible, a confession rendered nor is from ment accorded fact merely because inadmissible custody. Before the into taken
was first
County
com-
are to be
citizens of Geneva
the confession
to whom
plimented.
many
Too
have we heard
supra,
times
Phillips
made
were armed.
this character
result
of cases of
which
and cases cited.
ap-
lynching.”
what we call
Counsel
In this
state
confession is not in
pellant duly objected
statement
to the
solely
admissible
because it was made after
over-
for a
moved
mistrial.
arrest
an officer and before the accused
following-
making
ruled
motion afer
was taken
committing magistrate.
before a
jury:
statement to the
Such is the
Ingram
effect of our holding in
“Gentlemen, you will not consider
423 jury. counsel, In cy the minds of the next was to had inflame who 81, State, appointed Bridges perform 225 Ala. 142 So. v. the court to solemn duty of representing compara Likewise, of the the second statement tively ignorant man who is without funds here under con- county solicitor which counsel, employ with which to directly improper. highly was a sideration charged with the knowledge guilt of the concerning could which solicitor remark client, just who had taken the stancí possibly any knowledge and in no have who, upon counsel, examination matter which could that be a event would professed had his innocence in no uncertain State, jury. 242 v. concern Johnson terms. 632; Ry., 278, Birmingham Ala. Drennen, 175 Ala. In Light Co. the other & Power statement counsel for the 338, State in effect calls to the attention of the jury fully packed courtroom and asks frequently has condemned ar- This court them persons not to let presеnt down the of counsel similar to that made gument courtroom, as well as those closing circuit solicitor in the State’s community. Blue v. 246 Ala. argument. All of this in a case where a Negro man Johnson 105, and cases cited. is on trial 22 So.2d for his life jury before a men, white charged with the commission of apparent that the learned court It is a crime of this character. excluding these statements and in ad- jury disregard monishing the them I am unwilling say that the admoni- trial, throughout sought, he did to tions of the trial court to though rights of the protect forceful, defendant. And clear and could eradicate from the remarks clear from of the trial the minds it is the cumulative effect judgment in his overruling improper included arguments court of State’s coun- trial that he the motion new entertained sel. prejudicial effect of the view recognized This court has the cumula- eradicated his instructions remarks improper effect arguments tive and re- versed though conviction In So.2d the trial had court instructed the jury to Johnson dis- judg- did reverse regard improper such statements. In Blue conviction when the ment of solicitor stat- 19 So.2d where the ed to the counsel for charge rape was not and the difference in doing “though could to present, races was not we said: defendant, acquit yet down in their determining “In before they knew he hearts deserved the death we not think do that each penalty”, for the reason that the effect of above statements must be ana- improper sufficiently such remarks was re- lyzed separately not, to see whether or by the trial moved court’s rebuke to the so- *9 standing alоne, it would create an licitor his admonishment to the prejudice. ineradicable bias or We disregard remarks. To like effect is the think, contrary, that these vari- case of Norris v. ous statements should be considered So. 69. not, together to determine whether or But here we have three statements made effect, they in their cumulative created counsel the State the course of prejudicial atmosphere. may which, all of as we that some of the statements of the shown, improper.
have repliеs solicitor were in kind to state- first, lynch- In the reference is made to ments made counsel for the defend- practice ing, ant, which the fully recognize, solicitor indicated and we said in as resorted to had been “in cases of this char- Arant v.
acter,” is, 540, 544, battle, Negro legal cases where a is ‘a trial is a a com- charged raping sense, parlor a white woman. bat in a and not a social
42á pre- shows The record
affair.’ patience judge great
siding exercised what incidents did in most these possible as far
he could to disabuse any prejudicial jury of the minds duty to see to imрression; is our but it prejudice from are free that trials the courthouse and that passion ob- a conviction that where
means impartial tained, in an it is obtained foregoing remarks
atmosphere. jury. presence of the cumulative
Considering them in their effect, were calcu- think that we inject poison of bias and
lated minds of the prejudice into atmosphere of bias an
They created by the no prejudice which remarks jus- This eradicate. court could prejudicial error has been
tice and State, 244 Ala. Kabase v. shown. 79-80, 19 So.2d 766.”
16. excellent appreciation of the full
With in which the learned
manner the trial below and the course of
conducted rights protect of the de- efforts fendant, conclusion I am constrained improper preju- because for the arguments
dicial conviction should re-
versed.
DENNISON STATE.
Supreme Court of Alabama. Aug. 6,
Rehearing Denied