Richardson v. State
111 So. 202
Ala. Ct. App.
1925
Check Treatment

*1 RICHARDSON STATE G39 (21 Ala.App.) pears were examined grand grand or the had before <@=^346 law of sheriff’s —Admission legal documentary evidence, inquiry them into testimony prose- affidavit, basis of sufficiency is in- violating prohibition law, the evidence cution for to show offense, dulged. applicable time of held error. of the 5490, section Code 1923, which, prosecution violating prohibition- this case is section Code law, testimony required by admission of sheriff’s in addition to 8679, section affidavit, alleged prosecution, basis of to show stated, supra, requires, error, commission of state’s held that “no indictment or conviction shall be being jury’s having up case bolstered before had under said section on the uncorroborated them, testimony through admission of such woman whom the se- affidavit, belief of coun- chief executive officerof charged.” evident, duction is fore, port there- ty guilty. to effect that defendant was seduction, sup- case order to indictment, only appear it must not 3. Criminal <&wkey;>858(3)Affidavit, law basis of prosecution, admitted, may grand jury, before the taken to witnesses were jury room and considered. grand legal prosecution, basis of is al- documentary evidence, ap- but it must also jury may lowed in when it to take pear, properly raised, issue entering on consideration of indictment not had on the uncorroborat- may consider it as evidence. prosecutrix. ed We need sufficiency here discuss of evidence <&wkey;7l4 cannot, —Prosecutor necessary trix, prosecu- to corroborate that of closing argument, present case stat- state’s ing for it has been often stated as sufficient that he from notes of court stenographer. “if it extends to material fact and satis- Where, prosecutor’s worthy fies on woman is that he credit.” read would jury Cunningham State, transcribed notes to 73 Ala. 51. closing argument, court, defend- striking the defendant’s motion to objection, ant’s excluded from such state- quash, upon grounds stated, which was ment, proper, prosecutor such conduct seasonably pleading made and before to the being permitted' present- use such method in indictment, precluded merits state's case to offering sup- port motion, 5. which, <&wkey;7l4Prosecutor, if the grounds can tell his recollection of proven thereof had been under the testimony. required rules, complete would have been a Prosecutor his recollec- answer to the indictment. In this there was testimony, closing argument tion to them. case, error. There are other they may not arise on another trial. The &wkey;?1044 6. lav/ make Crimina! —To pointed apparent upon closing argument out is a matter prosecution, reviewable proper, record and this be made renders unneces- exclude must at time of argument. sary a consideration of the motion of the Where, prosecution violating prohi- state to strike the bill of questions and other prosecutor’s law, bition read from court cluded statement that he would contained therein. *2 APPELLATE REPORTS 21 ALABAMA ju- ruling. affirmatively appears It the this conflict that the in conduct of the solicitor question ry for .Miss. of the “time” calls carries with in pression bound Taylor Case, supra, having manufactured believing fense of ease; to a reversal.” facts in issue that there was tor was mony. jection. ception an charging alleged case on trial tending to vit and to fix testimony jury.” said: fense.” This state was and sworn state in this court “The sheriff is an officer “To corroborate “What connection this Even any county [4] reading be burdened Moseley opinion sheriff, and. Attorney General, given commission an indictment warrant this the solicitor stated “he had had the a permitted, which he upon the defendant. defendant, date of part defendant to admitting certainly has * court said: defendant, does of a influence in evidence in court * warrant, dated weight, of his introduced were admissible give immaterial for weight * person defendant’s case admittedly transcribe a this court said: over the this defendant with insisted that “the affida-: proceeded of the offense his to introduce main state’s prohibited (through Samford, this evidence was error whisky. with the appear. is not and when paper not a witness to the opinion, ex representing the objection two authority, order to foster' parte court, his word to read to the knew no he July jury.” The action has with the * to the solici App. 588, 99 liquors.” any purpose, part others, he witness, the in evidence had stated ** n ** of the of- cause for State, with the gives Such * ex- of- J.) is a *3 notes, reading Hare: record to the court jection, asked and ruled the state’s case \ timely fendant, ner stated: jection upon their answers. There consideration of testimony,” be ruled, this matter jury. instruct and not had been disclosed had been cated, 708. As exclude the could not resort to sell v. 845. Lambert by defendant, nor did correctly order that quires . [5, reviewed, of the court authorizing 6] We are of defendant called proceeded correctly Neither this must objection jury “We consider “I overrule the stated: matter overruled, further a exclude this matter answers returned.” improper argument. Boyett then from the consideration of except.” Mr. stating: request that did the benefit of the the invoked, be this court after defendant’s be reserved, However, defendant Hare, record, proceeded “My it. The holding this part argument he interposed, and, paper not followed jury; and the solicitor there- his recollection disregard of the of this character opinion method of he objection only necessary “He presented appears , in his under objection.” 425, 428, ge'neral counsel to defendant; no further ob- and also ruled has the solicitor. as above that the no other so state his the rule re- a motion ,. to exclude The court interposed presenting the status in a man- unable is point, hold. argument from the objection court rule _wh^ matter to his court over- right indi- Rus- , -and The rul- Mr. ob- de- be- . *4 a “bona statement, did not fide” and that facts “such tend to 317) (111So. genuine and in accord with sincere and 486.) (8 Div. ALEXANDER v. STATE. practice.” For rules of know, knowing would as- all sume without 1927.) Feb. Alabama. honest the solicitor was &wkey; to addi- 1059(1) Exception obtain a efforts to conviction. charge insuffi- oral reference tional I dissent. ’ appeal. cient on charge, Exception oral additional authority Affirmed on liquor intoxicating distilling for for ecution (Sup.) Richardson State Paul only, still, possession ficient suf- reference appeal. Court, Appeal Limestone from Circuit (111 Judge. County; Horton, J. Div. v. STATE. WOLF distilling, Fred Alexander was convicted 1, 1927.) Appeals (Court Feb. spirit- making, alcoholic or <&wkey;l144(17) Adjudication of liquors possession of a still to be uous regular finding presumed will be appeals. purpose, Af- used for that sen- /thereof firmed. tence. Rankin, Athens, appellant. J. G. by jury 'regular finding is fol- proper by court, by appropriate sentence lowed argue in refusal of for error Counsel pre- adjudication guilt will, appeal, be cite. affirmative Hobdy sumed. 100 So. <&wkey;363 constituting Cannon —Facts App. 261, gestae distilling pro- part hibited Ballentine v. 732; Gray 96 So. 100 So. res liquors properly admitted. App. 176, distilling prohibited liq- Moon v. constituting part uors, facts and circumstances gestos admitted in evidence. res Gen., Atty. Dávis, for the State. Harwell G. Reporter. Brief of counsel did not reach St. Clair Coun- Steele, O. A. BRICKEN, judgment P. J. From a distilling pro- Theo. Wolf convicted of making, distilling, conviction for turing or manufac- liquors, etc.,, hibited and he Af- liquors, spirituous alcoholic and for firmed. possession'of a be used for that still to Embry, City, Frank B. of .Pell purpose, appealed. The several reserved to the rulings upon admission court’s mony of testi- There is the court of guilt, are each so merit defendant’s the Wells based the verdict of not discuss them. need is erroneous. this trial adduced conflict, sharp were for the White v. circumstantial, up- ample State, ante, p, while 522,109 McMahan v. predicate the verdict on which Davis, Atty. Harwell G. for the State. to sustain the conviction. Reporter. Brief of counsel did not reach the exception reserved to the additional charge of the Court is without merit. RICE, Appellant Moreover, properly pre- was convicted of the distilling prohibited liquors, offense of for consideration sented Key-Numbered Digests other cases see same all and Indexes ®s>Por in. KEY-NUMBER Reversed and remanded. prosecutor subsequent- ly permitted failure of defendant to matter exclude to bar revision of matter. Rice, dissenting. J., (1 Div. 639.)* RICHARDSON v. STATE. Monroe Coun- Leigh, John D. Dec. Rehearing Denied Rehearing June Granted Paul Richardson was convicted of violat- Sept. 7, 1926. Affirmed on Mandate prohibition law, 'he Deb. Affirmed on.mandate. <&wkey;ll79 prosecution I. Criminal —In granted by Supreme Certiorari Court violating prohibition law, amend- technical Richardson v. appeal on circuit of affidavit Hybart Hare, Monroeville, & county which defendant had been tried (Code 1923, 4646). held not error violating prohibition law, permit It was error amendment of amendment, circuit affi- court of affidavit, by omitting “buy,” the word which defendant davit on was tried in without a reverification. Moore v. error; 1923, 4646, per- held 107, 51 357. The introduction in evi- mitting formality, irregularity, prevent in- dismissal for of the affidavit dence which the technicality, ecution Prater having error. af- Ala fected. 538. The Digests KEY-NUMBER, Key-Numbered other cases see same in all Indexes <®=?For dismissed 112 for certiorari * Petition

Notes

from the State, of the therein 85 v. reversal of the case. Davis controversy. 416, in There was 37 So. 1018. dispute upon question no fense here all, if the of the Davis, Atty. Thos. and Harwell G-. complained at of was committed Jr., Knight, Atty. Gen., L. and S. Asst. 1924, December, it of was the month Biggs, Sol., Monroeville, for the of State. county. The defendant’s home in Monroe any gave of fact affidavit amend the witnesses evidence It was not charged. by tending appellant eliminating of offenses one with State, 4646; 1923, charged D. v. 94 Ala. 111 Ala. S. Miles offense Terry were state witnesses 403; Simpson State, Sellman; 106, companion, 11 v. So. B. Perry 22; 6, State, stated, Ala. 78 v. as testified each of these witnesses State, December, 1924, 75 Echols v. The affidavit was admissible establish the time 16 Ala. that alleged the time was tl\e in evidence to was trial was This act committed. affirmatively of offense and the 28,1925. Thus had on March it prosecution. App. elapsed appears only Thomas v. months had three 182; Wynne 99, 187, 96 v. 115 the al of of the commission stated time 176, Simpson leged v. of this case. until necessity Where, therefore, offer in though original even evidence the SAMFORD, orig affidavit [Í] as accom was allowed to do so the panied to be inally made, solicitor, and this defendant which “it is of a statement court, charged was tried the time when of pos buy, sell, ease, defendant did or have in and was in only,” session, prohibited liquors, On this a limiting was it to the the circuit county court, from a in the Do the the solicitor? fide statement bona on motion of ease tend to solicitor, sincere, struck from the affidavit the word genuine statement was “buy.” objected The defendant to the amend of rules in practice? accord being put to trial not. We think statute, controversy. the affidavit as Under the amended. question time was of affidavit amended to meet the disagreement, con There flict, justice, prevent a ,to and to dismissal of ends Under as the time. contention or upon any informality, irregularity, the case aspect conclusion to the are for.ced technicality. any trying We fail see how tendency effect its af of the defendant evidence, illegal where get liberty fected as made. rights property man’s involved. App. 1923, Nelson should character Conduct May p. 186, 102, ante, condoned, courts; be condemned 106 So. 608. hurt it approved, That was commended. Sheriff Bowden and By erro questioned. ful error cannot signed him affidavit the were admissible origi introduction neous nal affidavit question of time. In his important high and statement verified read from a swers, an- county “had their sheriff as the official propounded which he asserted believing, be and does and answered es one of the state’s witness- guilty all or lieve, during his examination as a witness on charged the affidavit.” offenses right during the trial. argument 'Counsel have the allowed said wit- to rehearse the takes rules our under into the consideration As to whether such evidence is cor- nesses. entering upon the jury. rectly is a for the stated considers excluded from the attempted limitation as evidence. that ho read- Thus the abortive. of course “to time” notes. up by the was bolstered state’s case error in There is no officer executive the chief and belief judgment is affirmed. him, to the effect county, sworn charged. Gan it did not affect verdict that this be said [2, Upon clear that the reasonable 3] con jury being ruling to consider sideration ad result to af mitting character would of this in evidence the an affidavit respect excep And verdict. Bowden over their Sheriff tion fect is analogy where it has been cases we have reached the con be, did so affect test held the there was clusion their

tained loquy mony,

Driver

to tell the rulings competent.” To this extent

18 State,

fendant): then occurred: replied:

verdict,

ensued relative to the solicitor the insistences of the court The record shows that Ala.App.

cases

could

Pate,

I move the

hut

notes. He has “I

86 So. 179: cited;

will exclude from the —41 sustained defendant’s ob

might

complain. recollection “Mr. Hare such statement.” being favorable,

Weaver v.

and answers are not court reading

Lakey

the court sus A to withdraw

RICHARDSON v. STATE

(for the follow the testi

Taylor

the testi from the the de col the prepared

so. Ala.App.) to mony

manded.

scribed

clusions. submission the cause invoke cited, requires RIGE, From what has Application granted. rehearing remanded.

which held in his hands

Even if (dissenting). announced the lower SAMFORD, J., amended to the this ease is correct granted, revision.

the statement

the affidavit made said, Reversed and think

had been tran-

be reversed and on the extent

containing

opinions in order to application in its con- opinion

the testi- froni his the and the

opinion above re- 21 ALABAMA APPELLATE REPORTS reg place vigor- appears trial, sheriff had no

[1] ously my finding asserted ular brothers prop rehearing, yet not think its admis- an sentence do appeal, sion, plicit very will, upon ex- er taken connection with the presumed. and in

[2] constitut All facts and circumstances connection trial, conduct of with the whole part gesta of record, the res as shown so hurtful go in evidence. fense are as to call I But if for a reversal of the case. surely view, Thefe is no error in the should do as to this is affirmed. desire to the solicitor’s assert offered in the affidavit was evidence for the the