Roden v. State

59 So. 751 | Ala. Ct. App. | 1912

PELHAM, J. —

Pick Roden, who prosecutes this appeal, was tried and convicted in the court below on an indictment charging him with bribery. The facts alleged as the gravamen of the offense are to the effect that the defendant corruptly solicited or attempted to influence a public officer in the discharge of his official duties. It is averred that one W. B. Stallings, who is described as the marshal of the town of Guntersville, Avas promised by the defendant $10 per month, “and all the whisky and beer he could drink,” if he Avould not arrest or interfere Avith the defendant in carrying on an illegal business in selling prohibited liquors.

The demurrers to the indictment are not well taken; nor are they insisted upon by counsel in brief. The indictment properly charges the offense described in section 6411 of the Code of 1907. It is no ground for demurrer to an indictment for bribery that it fails to aver the Christian name of the officer alleged to have been corruptly solicited, or an attempt made to influence him in his official actions, or that it fails to aver that the Christian name of such officer Avas to the grand jury unknown. — Crittenden v. State, 134 Ala. 145, 32 South. 273; Knight v. State, 152 Ala. 56, 44 South. 585. In describing third persons in an indictment, it has been held to be a sufficiently certain designation to use the initials of their Christian names. — Thompson v. State, 48 Ala. 165.

The evidence narrated by the witness Stallings on the trial in behalf of the state tended to show that during the time he Avas marshal of the town of Guntersville he Avent to the defendant’s store on a certain occasion with one Jack Grayson, and that the defendant on this occasion offered to pay him $10 per month, and furnish him all the beer and whisky he could drink, if he would protect the defendant in carrying on his unlawful business of selling prohibited liquors in violation of the prohibition laws, and would not arrest him, etc. The witness testified that the defendant, on this occasion, paid him $5'on this account, which money he carried and turned over to the city attorney the same night it was paid to him, and the next week the defendant paid him an additional sum of $2 on the same account.

The defendant testified, in substance, that on the occasion when Jack Grayson and the officer, Stallings, came to the defendant’s place of business one Jim Ivey and others were present, and that the marshal bought some “beerette” from the defendant, but that he (the defendant) paid no money to the marshal, and that nothing whatever was said or done by him looking to bribing the officer, or offering to influence him in the discharge of his official duties. Jim Ivey testified as a witness for the defendant; and his testimony tended to corroborate the defendant’s statement as to the occasion he and others were present at the defendant’s store when Stallings and Grayson were there also. The witness Stallings testified that the defendant’s witness Ivey was not present at the defendant’s store on the occasion in question when he and Grayson were there, and the money was paid by the defendant. Grayson was not examined as a witness in the trial of the case. A showing for an absent witness as to the general bad character and the bad character for truth and veracity of the witness Stallings was introduced in evidence by the defendant, and the state introduced a number of witnesses, who testified to the defendant’s general bad character, and also that his character for truth and veracity was bad.

The court’s action in allowing the witness Stallings to state where he went, and what he did with the $5-after it was paid to him by the defendant, was free from error. It was for the proper purpose of making a connection between the testimony of this witness and the witness Rayburn to identify the money (silver dollars) subsequently introduced in evidence.

The note handed to the witness Stallings by the defendant was properly permitted to be introduced in evidence in connection, with the witness Stallings’ testimony, as, in that connection, the note upon its face contained incriminating matter tending to show defendant’s guilt of the offense charged. The gravamen of the charge is the corrupt solicitation or attempt to influence a public officer, and some latitude must be allowed in the range of the evidence admitted when such a question is involved; and evidence of acts similar to the one relied upon, intimately and directly connected with the particular accusation, is relevant, and forms part of the same transaction, and is material to illustrate the knowledge and intent with which the particular act was committed, and rebut inferences of any honest intent or purpose. The intent (to corruptly influence a public officer in his official action) is a material constituent of the crime charged; and the general rule that the prosecution will not be allowed to introduce evidence of other distinct offenses, for the purpose of showing the accused guilty of the offense specifically charged, does not apply, when it is material to the inquiry to show the intent with which the act charged was committed. — McDonald v. State, 83 Ala. 46, 3 South. 305; Gassenheimer v. State, 52 Ala. 313; Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782.

The defendant’s objection to the testimony of the witness Stallings in reference to the |2 paid to him by the defendant is not well taken for tlie same reasons discussed and pointed out in considering tbe court’s action in admitting the note. Tbe evidence was corroborative and relevant to tbe main issue involved.

Tbe United States internal revenue license introduced in evidence Avas issued to tbe defendant as a retail liquor dealer, and Avas shoAvn to bave been taken from bis place of business, Avhere be paid tbe money to tbe officer, and covered tbe period in question. Proof tbat tbe accused bad sucb a license possessed some probative force to sboAv that be was engaged in tbe business of illegally selling liquor, and therefore was relevant as tending to show a motive for committing tbe offense charged. Sucb license, when relevant, is admissible in evidence Avithout tbe aid of a statute authorizing it. — 2 Woollen & Thornton’s Law of Intoxicating Liquors, § 972, and authorities there cited in note 32 on page 1729.

Tbe five silver dollars and letter given to tbe witness Stallings by tbe defendant, and introduced in evidence, were properly identified, and their admission Avas free from error.

Tbe suggestion made to tbe state’s counsel by tbe court, “You might introduce tbe sheriff to identify tbe package” (having reference to tbe package containing the five silver dollars and revenue license which tbe sheriff bad brought into court from tbe bank by request of tbe state’s counsel), Avas not improper, and would not constitute reversible error. No objection bad been made by tbe defendant, based on a failure of tbe state to show tbat this money and license Avas tbe same as testified to by tbe state’s Avitness Stallings as having been received from tbe defendant or taken from bis possession, and no prejudice to defendant could bave resulted from tbe remark. Casual remarks made by tbe court to counsel in the course of the trial, not addressed to the jury, though within their hearing, not intended as rulings upon questions of law, are not the subject of review. — Meinaka v. State, 55 Ala. 47; Campbell v. State, 55 Ala. 80; Schieffelin v. Schieffelin, 127 Ala. 14, 28 South. 687.

It was not improper to show by the Avitness Ivey that he had been convicted of an assault Avith an intent to murder. — Code, § 4009. ITis conviction of a felony affected his credibility as a Avitness. — Deal v. State, 136 Ala. 52, 34 South. 23; Gordon v. State, 140 Ala. 29, 36 South. 1009; Wells v. State, 131 Ala. 48, 31 South. 972; Murphy v. State, 108 Ala. 10, 18 South. 557; Wingate v. State, 1 Ala. App. 40, 55 South. 953.

Overruling the objection to the question asked the Avitness Ivey, “There was a right smart liquor out at the cabin, Avasn’t there?” if error, was not prejudicial to the defendant, as the evidence elicited could not have been injurious to the defendant; for the Avitness an-SAArered, “There Avas not.” — Cooper v. Slaughter, 174 Ala. 57 South. 477.

The questions asked the witnesses Ivey and Stallings about the occasion Avhen a Mrs. Haygood aatis at the defendant’s place, and Ivey was arrested, were properly allowed to identify the time as being a different occasion from that Avhen Stallings and Grayson Avere there, and the $5 was paid by the defendant to Stallings, as testified by Stallings.

It was proper to show the state of feeling existing between the prosecuting Avitness Stallings and the Avitness Ike Yaughn, Avko had testified, in a showing introduced by the defendant, to the character of Stallings; and the court committed no error in allowing this evidence.

The witness Carter was shown to have a sufficient knowledge of the defendant’s handwriting to testify to the resemblance of the signature on the note. It was not necessary to prove the signature to make the note admissible, as the state’s witness had testified that it was handed to him in person by the defendant, and the paper was admissible without reference to its having been signed by the defendant.

The statement of the solicitor in argument, that “not a man has taken the stand and stated that Stallings had failed to do his duty,” did not exceed the limits of legitimate argument; nor was it an unauthorized inference drawn -from the evidence. ' The defense had introduced evidence of the character of the officer, seeking to impeach him, and his official action was an issue in the case and a legitimate subject of discussion. The statement amounted to no more than an inference drawn from the evidence that the character of the officer had not been impeached by the testimony. Every legitimate inference deemed by counsel as arising out of the testimony is a proper subject of criticism and discussion — Lide v. State, 133 Ala. 43, 63, 31 South. 953; Cross v. State, 68 Ala. 476; Mitchell v. State, 114 Ala. 5, 22 South. 71.

The defendant’s motion to exclude the evidence, and the different written charges based on an alleged variance, because the name of the officer alleged in the indictment to have been bribed, or attempted to be bribed, was averred to be “W. B. Stallings,” when the proof showed that his name was “Willie Bell Stallings,” or “Willie B. Stallings,” or “Will Stallings,” were properly refused. The Avitness testified to the names set out as his Christian names, but also testified that some called him “W. B.,” and, although these letters were only initials of the true Christian names, yet the person was sometimes called and known by these letters, and there is no substantial variance. The description of third persons in an indictment by the use of the initials of the Christian names is sufficient. Especially is this true if the identify of the person is established by an additional descriptive averment, as in this case, where the person was described as “the marshal of the toAvn of Guntersville.” — Thompson v. State, 48 Ala. 165; Franklin v. State, 52 Ala. 414; Lyon v. State, 61 Ala. 224; Sewell v. State, 82 Ala. 58, 2 South. 622; Crittenden v. State, 134 Ala. 152, 32 South. 273; Knight v. State, 147 Ala. 104, 41 South. 911.

Charges Nos. 11, 12, 13, and 14 go to the insufficiency of the allegations of the indictment in not averring the Christian name of the marshal, Stallings, or are based on a variance because of the indictment containing only an averment by initials of the Christian name, and need not be discussed seriatim, as, from Avhat Ave have said, it Avill be seen that the court’s ruling' in refusing these charges is free from error.

The evidence Avas.in conflict, and there Avas sufficient testimony of the defendant’s guilt of the offense charged, if believed, to authorize a conviction, and the general charge Avas properly refused.

Charge No. 16 is misleading and argumentative. Other evidence of the state, not conflicting Avith the defendant’s evidence, should be considered by the jury in arriving at a verdict. The charge bases an acquittal on a part of the evidence, and invades the province of the jury in assuming as a fact a Aveakness in the testimony of the state.

Charge No. 17 singles out and gives undue prominence to a part of the testimony. The proposition sought to be given in an instruction by this charge (that the fact that the state’s Avitness had been convict-eel of murder iu tlie second degree could be looked to as a circumstance in saying what weight the jury would give his evidence) is substantially covered by given charge No. 10.

Charge No. 18 bases a reasonable doubt upon a consideration of the evidence in conflict alone. A reasonable doubt must grow out of a consideration of all the evidence; and charges properly stating the law on this subject were given at the instance of the defendant.

Charge No. 19 is incomplete.

A careful examination of the record fails to show reversible error, and the judgment of the court below will be affirmed.

Affirmed.