*1 268 injunction, court is circuit without pendente ground lite on
injunction temporary power modify or equity vacate into not come complainants did injunction as to into account Act so take hands. clean approved August Spe- No. 1966,page 231. cial Session complain- Respondents say 2. adequate remedy ap- at law ants had an denying appeal was from two orders Ac- peal Code Title 1940. under § discharge the tem- motions to dissolve title, elliptical last sen- cording to its is porary injunction. prayer the bill authorize tence, appears intended to 251 § injunction, temporary and for writ of “a ap- pharmacist registered suspended have be- permanent.” This did not a decision peal record court of from injunc- permanent fore it the matter of the revoking his license no- Board tion. According the aver- hearing.
tice and however, bill, complainants ments of the procedure, the the usual order of Under parties proceedings are initiated decision'by ready the trial case is now for complainants’ respondents against em- injunc- permanent prayer court on the by ployers, rule, and, general under the com- any reason tion. áre not advised of We appeal plainants standing to from have no proceed a full why cannot the trial court (lecision proceedings. .in such Ordinar- respective rights hearing, determine the party who not a cause complete equity one all ily.) parties,; and do Robinson, appeal. Minor cannot Adams v. now con- of them statutes .under 285; Security Life & Accident Ins. Co. v. , rights.' trol their Crescent, 143 441. We Ala. So.2d Opinion extended complainants have ade do not think remedy lawat under quate § Application Title overruled. 46. ' Since reversible error has not been LIVINGSTON, J., and LAWSON C.
shown, the decrees from are af- appealed KOHN, JJ., concur. (cid:127)and firmed.
Affirmed. LIVINGSTON, J.,C. and LAWSON
,and HARWOOD, JJ., concur. 210 So.2d REHEARING
ON SMITH Orville Burnist COLEMAN, Justice. support application brief filed Alabama. STATE of respondents rehearing, we ask 214. Div. clarify injunction modify temporary or may respondents now so Supreme Alabama. Court of duty proceed under perform their 14, 1968. March (cid:127) pharma- regulating practice statutes cy. May Rehearing Denied . the view Respondents appear'to entertain denying
thatj affirm the orders because we dissolution', temporary discharge (cid:127)
(cid:127)27Ú *3 Orme, Troy, C. Walters and E. C. John appellant. *4 Gallion, Atty. Gen,
MacDonald and W. Anderson, III, Atty. Gen, Mark Asst. the State. County Coroner,
called the Pike Robert A. McGehee, who a practicing mortician. McGehee at arrived Mrs. Boone’s home shortly receiving call Coroner McGehee testified in substance that when he entered living Mrs. Boone’s room, Mrs. Boone “was on the lying sofa body, with her upper part body, of her on the sofa and her knees were on floor and her right head was turned her and her right lying arm was was kind —she of over position” (indicating). LAWSON, Justice. Mrs. Boone was Her body dead. “was dis- colored, spots, kind of bluish in some some County, Alabama, juryA of Pike found places deep a bluish and a guilty red Burnist first color Orville Foy degree Boone murder of Mrs. Post some body.” scratches or abrasions on punishment imprisonment and fixed lady’s A stocking neck, was around her *5 Judgment for sentence in life. were stocking which had been knotted and twist- jury’s with has accord verdict. Smith the ed with a There stick. were marks her on appealed this court. neck under the knotted and twisted stock- ing. The coroner testified that the death Boone, eighty-one years age, Mrs. of of by strangula- Mrs. Boone was caused lived Brun- alone her home on North tion. didge Troy, Around Street Alabama. Sunday afternoon, glass part two on Decem- The shade the o’clock on of front 15, 1963, Little, pulled ber Lester lived in the door was who down and the shade on only Enzor, home of Mrs. situ- window which was which faced street was Jean home, pulled ated go. next door to Mrs. Boone’s went down as far itas could Pillows had placed to the home of been Mrs. Boone “to check beneath the window shade pipes water so that against freezing.” living for her He one could not see into the opened pushed the screen room from door and then the street or sidewalk. open directly wooden door which led rings Mrs. Boone had two diamond living stepped just into the room. in- He which at all she wore times. a One was side the door and called Mrs. Boone two or solitaire, diamond, mine a so-called cut three times and then looked to his left which apparently given had been to her "laying saw Mrs. Boone end on far of engagement shortly her husband an ring the couch.” Little returned to home of ring before 1900. other was cluster Mrs. Enzor and told her he thought Mrs. up of seven smaller diamonds. Boone was dead. Mrs. Enzor called the rings These not Mrs. fin- were on Boone’s police. Mrs. Boone had not been seen gers body her when was found. She also neighbors Thursday, her December since very owned a watch which had small dia- 13, 1963. in it. A
monds search of Mrs. Boone’s rings home failed to disclose or of Chief Police Potts and Police Officer watch. Barrow at at arrived Mrs. Boone’s home about County 2:36 Pike P.M. Sheriff Gatlin, Investigator Mr. B. called and he ar- Davis was Chief Potts J. Safety, ar- Department Alabama of Public period rived within a short on scene shortly at the residence rived Boone Either Chief Potts or Davis
time. Sheriff Troy lived a room since P.M. December 3:00 part building occupied by his its removed nor back body had been Boone’s employer. arrival. position altered Gatlin’s before tighten had used to
The stick which been issued A warrant for Smith’s arrest was slipped stocking around her neck February 27, 1964, on but had not been pic- her took under arm. Gatlin out from prior to five P.M. of executed o’clock ad- body, pictures tures of complied request day, when mitted in evidence. Investigator accompany him to Gatlin to County pur- the Pike Courthouse for “the Shoffeit, toxicologist E. Dr. Paul pose investigation.” was later Gatlin Department Assistant Director of the State joined by County Pike Solicitor Oliver W. Toxicology Investigation and Criminal Brantley, joined questioning. who Alabama, performed an au- of the State of interrogation questioning ended at body De- topsy Mrs. Boone County the Pike Courthouse sometime be- cember Funeral McGehee eight night. tween and nine o’clock that Troy. expressed He Home Gatlin, Brantley But and Smith drove to cause of death "was due to Montgomery night and did not return strangulation ligature as a result of a Troy following morning. until expressed around the neck.” He also opinion that Mrs. Boone had been dead Apparently the warrant ar- Smith’s days three body two or before her was em- rest was executed their soon after return balmed. Troy, jail for he was on March grand when he was indicted February the then Circuit On jury County of Pike degree for the first Riley County, Judge Pike now Solicitor *6 murder of Mrs. Boone. Gatlin; Investigator of Green, Jr.; Chief Pressley Davis Potts and Sheriff Police 1964, judge ascer- 15, trial May On Chattanooga, After Tennessee. went had not em- that he tained from Smith investigator they arrived there Tennessee financially unable and was ployed counsel Jewelry accompanied Quarles them to time advised at that so. Smith was to do Shop Quarles Mr. deliv- Store or where ap- be that counsel would by trial court separate packages dia- ered to them two of 5, prior to pointed represent him June package eight dia- contained monds. One 1964, day arraignment. set monds, dia- a solitaire and smaller seven monds, package the other contained and 22, 1964, presence of May On twenty-seven very small diamonds. E. C. Smith, appointed Hon. the trial court packages of diamonds were delivered two repre- Hon. C. and Walters Orme John Quarles by to them Mr. in a box which are him. Mr. Orme and Mr. Walters sent paper was in a container which was many lawyers had able who both printed: Quarles -Jeweler, “F. B. — years experience in trial of criminal of 2, Building, Chattanooga Tenn.” James cases. Immediately printing beneath the was writ- ten, Smith, Hill, “B. Tennes- O. Pleasant 1964, 5, ar- the date set for On June see.” court-appointed raignment, and Smith
lawyers present open when were court lawyers trial apparently O. Smith was native of one of Smith’s advised B. Hill, Tennessee, ready ar- the time Pleasant but at court that Smith was not ob- living in in that his raignment of Mrs. Boone’s death he counsel wished in- by by Troy, report of his Alabama, employed tain the Gatlin where he was (cid:127) to Vaughn vestigation. declined A. T. He had been The trial cotirt Jeweler. plead- postpone arraignment. suppress by Before written motion denied 30, indictment, trial ing counsel for court on 1964. June requested that of the case not be the trial July On the trial court set aside 6, This re- July set for week of 1964, its 30, order of far so June quest by the trial court. was denied denied No. Smith’s motion wherein Thereupon, lawyers and one of his sought permission inspect the diamonds pleaded guilty. Smith not which the secured officials had in Chatta- nooga, The trial court at that Tennessee. lawyers Smith’s filed On June time entered an order to the effect eight on his behalf motions wherein the permitted Smith and his counsel to in- requested trial court was to order spect presence the said of diamonds permit inspect, defendant “State to Davis, possession Sheriff was in of who copy, or photograph or hereinafter de- them. books, scribed papers, tangi- documents or objects defendant, ble obtained from ob- Monday, or July day On set for process.” tained seizure others case, or the trial of the counsel for Smith point We will this delineate the arti- asked that until the the case be continued eight cles following referred into motions. Thursday, July which was 1964. The trial court so ordered. eight court denied each of the Wednesday, July On counsel for motions on 1964. On the same June Smith moved that the trial the cause be day orally counsel for Smith moved the period continued “for a or four three subpoenas to issue duces tecum the request weeks.” The basis was that Circuit produce Solicitor to each ar- counsel needed that much time within eight ticles enumerated in the written mo- Fleming Femming which to locate one or inspection tions for the defendant and just had because counsel heard that his counsel and to enable trial court to Troy resident of name “Bill “inspect the sought matters and determine police had Walton stated to that he separately severally materiality killed Mrs. Boone” and also because coun- each guilt punishment either as to just sel for Smith had heard that “some if the Court of such finds ma- matters Troy television man in with a television separately terial severally either toas shop working been a television in guilt punishment, or as to then the Court *7 (sic) Mrs. Boon’s time that about the permit inspect counsel defendant’s alleged killing, was been a if it to have copy matters or them.” place.” a killing was that took Counsel for they Smith also contended had not Also, 30, 1964, on counsel for June prepare time the defense their for Smith suppress filed written motion to client. continuance made The motion for certain alleged articles to have been seized 8, July 1964, on denied the trial under search warrants, warrants which court. alleged, effect, movant were not issued 9, 1964, Thursday, July day On “upon probable were, therefore, and cause” which the trial of the cause had been con- contrary issued “4th to the Amendment to tinued, again counsel for defendant moved contrary the U. S. Constitution” and ground for a continuance on “14th Amendment U. S. Constitution” prepare adequately had not had time to contrary 5, 1, to “Section Article their defense. trial court denied that The Alabama Constitution.” motion. 9, oral Thursday, The motion motions for the issu- The began July trial on 1964, subpoenas ance of duces tecum and the Saturday, July was concluded on
275 defendant, Smith, 11, ing 6, 1964, July immedi- week 1964. that coun- gave ately judgment adequate no- sel for Smith after and sentence would not have time appeal. prepare in which to Re- defense. tice of appear versible error made to lawyers represented who Smith action of the trial denying court that mo- appointed represent the trial court were State, 625, tion. Peterson 166 v. 231 Ala. appeal. They filed him this have excel- on 20; Knight State, So. v. Ala. 142 orally argued lent briefs on his behalf and So.2d 899. here. the case time of submission Smith
has been furnished a record without cost to
When the case was called for
him.
trial Monday, July 6, 1964,
on
counsel for
requested
Smith
that the trial be continued
We
set out above some of
evi-
until Thursday, July 9,
request
1964. This
dence adduced from witnesses called
granted.
Wednesday,
July 8,
On
summarizing
parts
State. Before
other
July 9, 1964,
and on
there were other mo
of the
evidence which we deem
State’s
continuance,
tions
for
grounds
necessary
understanding
for an
certain
which were in essence that counsel had not
rulings
of the trial court made dur-
sufficient
time in
prepare
which to
ing
proper,
the course of the trial
we will make defense and
persons.
locate certain
rulings
deal with the
made
the trial
Such motions are addressed to the sound
court
began
July
before
on
discretion of the trial court and the exer
1964.
subject
cise
except
thereof is not
to review
gross
for
State,
Requests
Logan
abuse.
v.
251 Ala.
Motions and
for Continuances
753;
State,
Pugh
So.2d
v.
247 Ala.
417;
State,
25 So.2d
252 Ala.
Green v.
shown,
As we have
was ad
41 So.2d
Divine
May 15, 1964,
vised on
that he would be
Ala.
184 So.2d
A
review of the
arraigned
and that counsel
June
record discloses no abuse of discretion on
appointed
represent
would be
upon
him
part
arraignment and at
trial court in denying
his trial. Counsel was
appointed
May 22, 1964,
two weeks
requests
motions or
for continuance.
prior
arraignment.
to the date set for
On
day
arraignment,
set
June
Motions to Produce
counsel for Smith advised
the court
ready
arraignment”
“We are not
above,
we have shown
the trial
As
that the
report
defense wished to obtain a
ordered,
effect,
Investigator
plead
Gatlin before
permitted
inspect
the dia
counsel be
ing to the indictment. As we will herein
from
had been obtained
monds which
show,
the defense was not entitled to
Quarles Jewelry
Shop in Chatta
Store or
*8
report.
It is true that
for a
counsel
nooga,
possession
of Sheriff
which were
defendant
ample
should have
time to con
inspect
diamonds
right
Davis.
to
sider what action
arraignment.
to take on
pro
motion to
sought
in Smith’s
been
However,
the record before us does not
duce,
motions
The other seven
No. 7.
that prejudice
show
resulted from
ac
re
effect,
or orders
sought, in
an order
tion of the
refusing
postpone
court
to
de
produce quiring the State to
arraignment.
inspection:
fendant’s
notes or
Investigator Gatlin’s
Also,
5, 1964,
“All of
day
set
June
investigation
relative to
arraignment,
memoranda
counsel for Smith moved
Investigator
case, that said
this
of,
dur-
or of
that the trial
the case not be held
of
has,
“Any
may claim, pertaining
de-
of
or
to this
the above that were seized
February
under search warrant
issued
fendant.
27, 1964;
reports
Investigator
“All
of
Gatlin
Solicitor,
County
Circuit or
toor
“All
things
other
seized under said
Agency,
State Law Enforcement
or to
search
pertaining
warrant
this defend-
Potts,
Chief
Sheriff Davis.
or to
ant, or pertaining to this case.
“All
materials from which
clothes or
rings,
parts
“Two
rings,
of
or
or
undertook
or did make or
State
(sic) placed
mountains
on table in front
relating
take fingerprints from
the in-
defendant,
Gatlin,
by Investigator
;
vestigation of this case
Potts,
or
the Chief
or W. Brant-
O.
ley, at
fingerprints
investigation
questioning
“All
made in
of said defendant
parties,
said
Saturday
of this case.
on or about
night
questioning
after his arrest. Said
record,
“All recordings,
tape,
whether
being in
County Courthouse,
the Pike
or otherwise, made of defendant’s con-
being
the first
time
parties
said
versations,
questioning on
or defendant’s
placed said matters
him.”
before
Thursday, February 27, 1964,
ques-
said
by Gatlin,
tioning
Potts and
.
Chief
O. W.
It is
by appellant
contended
that the trial
Brantley;
together
questionings
court erred in not granting to him the re-
February
into
sought
continued
28th. Said
lief
in his
produce
motions to
num-
questionings
County
1,
4,
5,
made
Pike
Court-
bered
6 and 8. Two cases are
house.
support
cited in
contention, Brady
of that
Maryland,
v. State of
373 U.S.
83 S.
tape,
recordings
“All
record or other
Ct
10 L.Ed.2d
and Smith v.
defendant, or de-
of
of
conversations
Pennsylvania,
376 U.S.
84 S.Ct.
Saturday
questioning, made
fendant’s
building Vaughn, T. known as A. Jewel- appear from the evidence Sheriff er, February dated objects seized described (g) Everything or seized from automobile from warrants Smith’s or thereof, officials under search warrant T. premises employer, A. of his February of his dated automobile items the other Vaughn As to Jeweler. sought suppressed, for some reason apparent suppress, from motion State, or (h) Everything seized say that the State’s evi- it is sufficient thereof, officials under search warrant that it did not have dence the effect is to Jeweler, A. Vaughn, T. 116 North parts or possession any “rings, its Street, Alabama, Fe- Troy, Notch dated dia- bry. 27, rings, mountings” than those other 1964.” *10 jeweler from the in Chat- monds received Gatlin testified that any- neither he nor tanooga, a re- presence which were riot obtained as any one in his threats seizure in so against promised any sult of unlawful search or Smith or him reward hope leniency far as this record The State did any discloses. or offered him in- possession in its letters written to get him make ducement a statement. by Smith his wife and letters which Smith During interrogation not was Smith wrote to his But the evidence shows wife. by lawyer represented although a he was voluntarily that those letters were deliv- not told he was entitled one. He did by ered in the Mrs. Smith to Davis Sheriff time, say lawyer that he a that wanted at presence Brantley County ear- Solicitor say only he but did that two dollars ly morning on the March lawyer put to a before he wanted was they by When were offered evidence Brantley trial. He assured Mr. was expressly stated counsel for Smith lawyer, employ that if he was unable to a they objection that had no to their admis- lawyer appointed by would be the court they sion in evidence and were admitted. represent him at a trial. The State introduced evidence of state- had been A for arrest warrant Smith’s ments made Smith on four occasions. requested prior to the time issued Gatlin question- go for him to the Courthouse Gatlin, B. Investigator, the State testi- J. posses- ing. the warrant his Gatlin had shortly fied that before five o’clock on During the not executed it. sion but had February 27, 1964, afternoon of he asked that questioning advised Smith Gatlin accompany Smith to him to Pike Coun- arrest for “for his warrant had been issued ty purpose Courthouse “for the of investi- murder.” gation” complied and that Smith with his request. placed Smith was not under ar- interrogation During the course of rest at that time. stated that came from Pleasant Smith he working Hill, Tennessee, for but had been investigation began When Troy Vaughn in since 1962. Mr. present Courthouse no one was but Gatlin any sent dia- first stated that he had not However, and Smith. before interro- place repairs or set- monds “to gation was concluded Gatlin and Smith might be tings.” But later said he joined by County Pike Solicitor bought trouble; dia- that he had some Brantley. The interrogation at the Court- he monds “from a man on street whom ended eight house between and nine o’clock know”; purchase did not that made the he night. P.M. The record indicates Troy Drug near McLeod’s Sat- Store leaving Courthouse, Gatlin, urday morning, December Brantley proceeded and Smith to Mont- the diamonds in a bot- were “loose” small gomei-y Troy and did not return to until tle; he that the unidentified man said was the following morning. purpose broke and- would sell the diamonds “at the trip Montgomery disclosed he, Smith, bargain”; man offered the the record on the ap- main trial. But the diamonds and his offer was $100 pellant, Smith, brought has to this court accepted. Smith said he then went to papers which, certiorari certain in our $100; bank and he lied to borrowed opinion, justify a trip conclusion that the in that bank official he told him Montgomery purpose for a was other money”; needed that' some “Christmas than to continue interrogation deposited while bank “he a. there is no indication Smith was sub- the¿ portion leaving check” and after jected or, interrogation continuous bank he delivered to unidentified man^ fact, interrogated by twenty-dollar Gatlin and Bran- five bills and the man walked! ' tley while Montgomery. were in gave off. later Gatlin a somewhat differ- *11 company that that if to him vised wanted told in re- of what Smith ent version to bank, saying purchase to send the check that the diamonds trip to the gard his to “* ** He advised if that he went in- her. further his wife that him: told Smith company check, a check the sum of walked sent $600 cashed his and side the bank accept Company Refining Louis that to it. St. seen front door and back to did not send a check that amount. front standing there subject still was first check that com- bank; to Mr. sent Smith’s wife that back he went $170, pany a re- was in sum of which she borrowed he Murphy’s office and him; turned. also returned check and he stated She the next dollars from hundred her, Murphy sent to which was a lie amount he had Mr. to me that told money Thereafter the diamonds sent it, $207. wanted the that he about Mrs. to Smith at her in Pleasant Murphy gave him home and that Mr. Christmas Hill, dollars; Tennessee, by Refining and St. Louis deposit slip a for a hundred Company. cage and back to teller’s that he went deposited portion his check that he a During the course of the conversation or upcoming had meet bills.” cashed to interrogation, Smith was dia- shown the description the man gave Smith from monds investigating which the officials he
whom said diamonds he obtained the Quarles had Jewelry obtained from Store him but that he not know and stated did in Chattanooga. He positively identified since, had him al- never seen before or being them as the same he diamonds which though alleged seller of diamonds Refining Company had sent to St. Louis ewelry j was man.” knew that Smith “a and which had been that forwarded kept Smith told Gatlin he dia- company his wife and later de- which he three he monds for because weeks Quarles livered instructions “to heard death and of Mrs. Boone’s large mount the stone and the me- seven of they might .afraid that have some connec- ring dium size stones for which man’s * * *” her death. tion with He first told Gatlin he he said had a sale n that he heard of Boone’s death on Mrs. morning, Sunday He December Smith described the large diamond as ** * later said in the he same conversation that stone, being a “mine cut an old did not hear of death Mrs. Boone’s itntil cut diamond.” 4:30 P.M. December when one during the interro- testified Gatlin Youngblood Herman told him in the Var- told February gation on dead; sity Grill Mrs. Boone was only him that had seen Mrs. Boone he she had been "killed murdered and with a her he saw The first time three occasions. stocking silk strangulation” and that n “.shewas where came into the store was when she rings.” missing diamond two her further him come to said that asked same he worked and occa- Youngblood sion him cleaning told “that he appraisal “on home to make [Youngblood] said pa- that he noticed the saw The next time he her silverware.” pers piling up on porch her he he when her of 1963 was in the summer went got' neighbor go check appraisal. home to make went her neighbor found Mrs. Boone dead in He offered do the work for $150. her residence.” pay price. The last Boone would not had been time he her was saw Smith told Gatlin that when decided store passing the her home. She dispose diamonds he wrote remarked Hill, Tennessee, and Smith wife at Pleasant where he worked advising someone, lady that has goes “There old her that he had sent certain diamonds to ,St. dirty silver.” all of that Refining Company Louis old had ad- *12 only present during questioning time he represent that to Smith told Gatlin house and Boone’s was advise him. had ever been Mrs. appraisal. there to make
when he went least, purpose At one visit Dr. Shoffeit, Gatlin, Brantley According him that Mr. and to Smith told Sheriff Davis to Smith on March ring was ascer- diamonds from to “to dismount those willing tain if Smith you give a would be them to to or watch that would have “specimen a blade, Although hair.” a a a and that if such re- and vise and block quest you was you pick them would scatter made of Smith the record is si- used a on lent to his place; request. that would take reaction to the As them it over all far as the record such expert specimen those diamonds with- shows no an remove , was obtained. injury to them.” out During visit, question- interview or Gatlin, According told him dur- Smith, ing, according Shoffeit, to Dr. said he, Smith, ing questioning that had that he would like to “correct an error” death seen an article about Mrs. Boone’s that had previously he made with reference it; read that he asked a but had not to the times he had been in Boone’s Mrs. Department if Troy member of Police home. Smith said that one or two weeks diamonds; they had located Mrs. Boone’s before her death he received a call from Monday that after Mrs. on the Boone’s Mrs. Boone and went to her house at about body discovered, “Troy Police De- was 8:30 P.M. Pie said that was the time last partment” at the to be advised him “store” he inwas her house. Mrs. Boone she said anyone might who on the lookout “for hungry was expressed and a go desire any pawning selling want to be or diamond Montgomery. Smith and Mrs. Boone rings” given description but he was not drove Smith’s car in the direction of rings. Montgomery stopped but eating at an place Shoffeit, toxicologist, Dr. testified “short” of finishing Montgomery. After on to a behalf State relative visit their they meal Troy, left for arriving at he, Brantley which Mr. and Davis Sheriff Mrs. Boone’s home midnight. around county jail had with Smith in the on Smith said did go he not in the house at day March on which Smith that time. Smith also told the officials was indicted for the murder of Mrs. present that “would find his hairs on Boone. her couch and his hair fingerprints her house.” Smith made certain statements on that he occasion but before- did so no one Smith, according Shoffeit, to Dr. stated any promise threatened him or made him change that would like another he also gave any hope or him of reward for mak- cell, story brought if his was wife his ing the making the statements. Before possession he came into relative how statements, Smith was advised Mr. brought the diamonds. Sheriff Davis effect, Brantley, anything he said jail Smith into she and Smith gave or “could be used for an examination “talked a while between the bars.” against or could used him and he would be concluded,. voluntarily have to it one could After their conversation was do no Shoffeit, any give Smith, according force him to Dr. said to make statement evidence, he get did diamonds the manner would have to do purely previously He outlined said own and it could be used him. against attorney representing the unidentified man came into the store him.” No present. where he worked. Smith was alone in Smith was He not told he present it. attorney store until man entered The man was entitled to have attorney offered tb sell the diamonds to Smith he did not ask an' Brantley by Mr. Smith made a counter offer of Smith on March $150. $100 County jail. in the Pike accepted. man man Davis stated that days go drug told Smith to store. Smith few March before asked, him Brantley then went a bank for a to tell that he where asked Solicitor buy shopping.” loan of wanted to see “to Christmas him. accordance $100 request, finally He was able to Davis and Mr. Bran- secure loan Sheriff tley jail employer’s signature without his to the went to talk with Smith. *13 deposited He Smith made note. certain as well as a statements. Before $100 part those pay of his statements check. Smith then went were made neither to drug witness Brantley store where he met Mr. man with nor threatened Smith, reward, They drug any hope diamonds. left offered him store promise and immunity walked down the street “where the or offered him ex- change inducement gave was made.” for him to make a Smith statement. man and the $100 man in turn delivered the dia- Davis, asked According Smith to Sheriff monds to Smith. Smith has seen not Brantley tell him the nature of Mr. to man since. him, against saying that evidence he would Brantley like told Smith to know. Mr. According to Shoffeit, Dr. Smith talked that could the evidence. he not reveal (cid:127)“much freely” and and mentioned his response request a In to made Mr. night “whereabouts the Thursday prior to Brantley, the Sunday on Smith stated that he could not which Mrs. Boone’s body was it found.” remember was that he and Mrs. Dr. when Shoffeit testified: “He told Montgomery.” us that Boone “went said he to Smith was [Smith] awakened the T.V. going recall it on a off, he could not whether was that he walked down Brundidge night Street weekend or another but that was within two blocks of just Mrs. days nights Boone’s “a few or she before was house and over to the Var- sity Brantley: killed.” Smith then said to where he Mr. [Grill] met a student. He probably part had “I told I a have truth hav- and sandwich and cup a of cof- fee, you he en’t all of it. I told want to tell that wasn’t got sure. He in a car with I go did back Mrs. a to Boone’s house anoth- student and came back to town when the er time trip we made to Mont- stopped student was for some traffic viola- gomery.” Smith said that he thought Mrs. tion.” night Thursday killed on was Boone During Tuesday the course of preceding the interview on he there on was inquired March Smith Mrs. eight nine o’clock. night, or around County State and officers with whom he showed playing solitaire he Boone was talking they was as to what evidence way whereby had it would be eas- play her a to against him and if an asked indictment had that “no stated ier her Smith for to win. been against returned night although him. He ad- he was was shade” down grand jury vised pull was session her that she should had advised her and the jury action of the grand could finished not After Mrs. Boone shades down. divulged. be Smith “reminded” the offi- she and Smith talked playing solitaire cials “would have to have her he evi- He told a while he left. before beyond dence Saturday a Friday night doubt that those diamonds would be back that he diamonds; had were got Mrs. Boone’s but he never around to it. and that we very frequent would have to have evidence visitor said that “he was a beyond a Boone’s, doubt that he did enter there two or the house that he was and kill her before he could be convicted.” three times a week.” response question propounded Davis,
Sheriff witness Brantley Mr. as to he .on- him and where testified as statements “Thursday said that “after night,” could been removed from diamonds time, settings by expert. drug he down their one other than an closing went got soup knowledge store and him a and went would have to have a little bowl One operation he jewelry store but skill and a vise back to where about the off to staying and watched T.V. and went would not be needed. removal could jeweler’s sleep. up program accomplished use in- After he be of “a woke T.V. However, got up graver.” went to on cross-examination went off he ques- Varsity response would have Cafe.” In witness conceded one very removing very Varsity tion as to how he Cafe careful went “* * * diamonds, “millings,” he are fre- said: small sometimes went quently ladies’ This down Three but used in watch cases. South Notch Street night go that the solitaire dia- happened square witness also stated across the Varsity been from the Cafe, got and down mond which had obtained to the and he *14 Varsity jeweler was cut dia- Chattanooga to the a mine Cafe and drank or three two cups Varsity coffee the mond. and left ticket, that some man received a he rode carrier, Griffin, de- Douglas a letter who person back to town with some that re- home, Mrs. testi- mail Boone’s livered ' by police night.” ceived a ticket the that on placed that he mail in mailbox fied her Kelly, jailer was the at the Sam who Friday, 1963, and that mail December County jail, Pike testified as to statements her in box delivered was still her when he Brantley Smith to Mr. in the wit- day. He that Mrs. on the next stated mail According Kelly, presence. ness’ Mr. leaving her Boone was not habit Brantley jail days came to the a few also testi- mail in the box. This witness 20, 1964, March on he ad- occasion Saturday (December fied that on Brantley mitted into Smith’s at the cell Boone’s front 1963), the shade on Mrs. jail. doing After he so closed the door to did not remember door was down. He the cell it. locked The witness re- Friday, it down on December whether was point mained outside cell at the he where Saturday, that on De- 13. He also stated positioned could be seen and was so that he papers there were on Mrs. cember could see in the cell and those hear what porch. Boone’s they said. by the There was evidence offered State On that the occasion neither witness nor Varsity in effect that Smith was to the Brantley Solicitor threatened Smith or of- early Friday during the minutes of Grill “promise fered him hope or of reward or morning, December 1963. His clothes anything else try get him to make damp soaking Smith at- but wet. statement.” dampness tributed the of his clothes to taking that fact “he had been walk and According witness, to the Smith told Mr. caught in had been the rain.” Smith left Brantley that pulled he had down Varsity an automobile Grill driven shade “on the front door” the time “he last by a college was arrested student who house, was in Mrs. Boone’s which was on driving a traffic violation while he was Tuesday night.” He pulled said he place employment, Smith to his where anyone
shade down
keep
“seeing
from
slept.
in.”
also
on that
Smith
said
occasion
go
Friday
“he
towas
back
Thursday
on
shown, Investigator
As we have
Gatlin
night.”
ques-
Smith never answered the
which he had
testified
interview
propounded
tion
Brantley
him
Mr.
February
with Smith on
Smith
to why
go
he did not
back.
first
told
heard
Mrs.
him
about
jeweler
Troy
Sunday
A
morning,
called as a
for Boone’s death
Decem-
witness
IS, 1963,
testified
ber
but later corrected that
effect
state-
n
Mary Detes,
operator
that he first heard of her
Mc-
ment and said
Store,
Drug
that afternoon from
“a check
death at about 4:30
Leod’s
was shown
Varsity
Youngblood
Vaughn Jewelry,
dated December
A.
Herman
Grill.
T.
3005, payable
Smith,
number
O.
B.
Youngblood, a
for the
tes-
witness
$192.75,” which bore her endorsement on
Varsity
tified that he was not
Grill
the back. This check was later introduced
15, 1963,
Sunday,
time
December
in evidence
the defendant.
not tell
that Mrs. Boone had
and did
Smith
Mrs. Detes stated that the check shown
rings
“and her
been found dead
taken.”
evidently
her
drug
at her
store
cashed
Youngblood
that he
testified
did not know
but she does not know
date on which it
been killed
Mrs. Boone had
until
fol-
cashed;
usually
she does not
lowing morning.
deposits
make
Saturday,
at the
but
bank on
evidence,
According to the State’s
Smith
following Monday,
on the
“if we have
Troy
did borrow the sum of
from a
$100
enough”;
that since the check shows that
Saturday,
14, 1963, but
bank on
December
paid
was not
until December
proceeds
of the loan were not delivered
just possible
deposited
“that
it wasn’t
to him. His account in
bank was cred-
until the 18th.”
ited with the
amount of
loan.
Smith,
appellant,
insists
Investigator Gatlin,
According to
admitting
erred to a
reversal
February
told him on
that while
evidence
statements made
*15
1963,
14,
in
"he was
the bank
December
on
which we have
in that
summarized above
portion
be
“his check”
a
cashed
of “his
they
at
lawyer
the time
re-
were made no
by
check.” The check was not identified
presenting
present. Appellant
Smith was
.Smith on
occasion but he stated it was
relies for a
holdings
reversal on the
in Es
the
amount of
The
of-
State
$192.75.
478,
Illinois,
cobedo v. State of
378 U.S.
84
fered
the effect
evidence to
Smith
1758,
977;
12
People
S.Ct.
L.Ed.2d
Dor
v.
amount,
payee
the
check in that
was
of a
ado, Cal.,
264,
952,
Cal.Rptr.
40
394 P.2d
14,
bearing date
December
1963,
of
drawn
denied,
937,
1765,
cert.
381 U.S.
85
14
S.Ct.
employer,
on the
account of Smith’s
Dorado,
People
L.Ed.2d 702 (see
v.
62
However,
Jewelry Company.”
"“Vaughn
338,
169,
361,
Cal.Rptr.
Cal.2d
42
398 P.2d
that the
bank’s records show
check was
denied,
the
1793,
946,
cert.
381
14
U.S.
85 S.Ct.
14,
not cashed at
bank
December
710;
on
Arizona,
L.Ed.2d
Miranda v. State of
1963. A bank
testified that
official
1602,
436,
384 U.S.
86
16 L.Ed.2d
S.Ct.
records of
bank show that the
States,
$192.75
and Massiah v. United
377
charged
check
201,
was
to
account of A. T.
1199,
U.S.
84 S.Ct.
ments
Massiah after he
eral
an
elicited from
into
unsolved crime but
begun
has
particular
been indicted and
the absence of his
sus-
focus
pect,
suspect
po-
holding
counsel.
does the
of the Su-
has been taken
Nor
into
preme
custody,
police carry
proc-
lice
Mi-
Court of
United States in
out
interrogations
Arizona, supra,
ess of
that lends itself
randa v.
of
affect
State
statements,
incriminating
admissibility
eliciting
statement.
suspect
case,
requested and
trial of
has
been
this
as we
heretofore
denied
shown,
9,
lawyer,
opportunity
consult
began
July
1964,
and Miranda
effectively
13,
police
and the
1966,
have not
was decided on
and the Su-
June
preme
warned him
absolute constitutional
of his
Court of the United
States
John-
right
silent,
has
remain
accused
719,
son v.
Jersey,
State
New
384
U.S.
been
1772,
86
denied ‘the Assistance of Counsel’
S.Ct.
L.Ed.2d
decided on
violation
of the
Amendment to
Sixth
held that
applies
“Miranda
June
upon the
only
began
obligatory
Constitution
‘made
to cases in
which
Amendment,
States
the Fourteenth
the date of our decision
ago.”
one week
U.S.,
Wainwright,
Gideon
at
State,
v.
See Eaton v.
280 Ala.
197 So.2d
83 S.Ct.
statement
no
cases cited.
In Duncan v.
interro
police during
elicited
278 Ala.
176 So.2d
declined
we
crim-
gation may
against
at a
used
him
holding
follow the
California court
490-491,
S.Ct.
inal trial.”
378 U.S.
People Dorado,
supra,
v.
and we do like-
this
1765. The
concludes with
wise
this case. We come now to a con-
“ * * *
only
sentence:
We hold
sideration of the effect
holding
investigato-
process
shifts from
when
Supreme
Court of the United States in
ry
accusatory
focus is on
its
Escobedo
Illinois,
v.
supra,
—when
purpose
its
elicit
the accused and
is to
Supreme
decided
Court of the
begins
adversary system
confession —our
United
States on
prior to
June
and,
operate,
under
circumstances
the date on which the trial
case be-
here,
permitted
must be
gan.
the accused
See
Jersey,
State of New
Johnson
*16
492,
lawyer.”
consult with his
378 U.S.
supra.
was used him at trial his evi- statements, incriminating defendant’s own dence words, of his incriminating own by agents obtained the federal under cir- agents deliberately federal disclosed, cumstances here could not consti- elicited from him he had been in- tutionally by prosecution be used the as ev- dicted and in the absence his counsel.” of against idence him at his trial.” (Emphasis 206, supplied) 377 U.S. 84 S.Ct. 1203. Guerra, Cir., In United v. 2 States 334 138, as, F.2d Massiah was construed at State, In Duncan v. supra, we made the least, suggesting post-in- that form of following observations about holding the in interrogation dictment when defendant is Massiah: by attorney unlawfully not assisted an “ * * * abridges right by guaranteed expressly by- the the to counsel Court Since But, opin- the in passed question Sixth Amendment. our the to the as whether ion, Massiah not hold. does so a viola- confession bad because of 286 observing to determine perience in bodies fac- Massiah of the fact that view death, opinion the that are bar we of the cause of
tually distinguishable from
case
possess
shown
above,
the
McGehee was
to
hold
witness
pointed out
we
respects
opin-
requisite
give
an
qualifications
the
by
Dr.
Smith to
made
statement
the
question
The
1964,
of death.
11,
ion as to the cause
on March
and others
Shoffeit
pos-
is shown to
as to whether witness
by
hold-
rendered
the
was not
inadmissible
prelim-
qualifications is a
requisite
Massiah,
sess
if
ing
even
the statements
largely
inary question
within
said
after Smith was indicted.
made
v.
court. Hicks
discretion
the trial
of
Likewise,
does not
we hold
Massiah
1,
State,
State, supra;
Ala.
243
Wilson v.
by
render
made
inadmissible the statements
State,
Ala.
422; DeSilvey
245
v.
8 So.2d
Brantley
Sheriff Davis
Mr.
State,
183;
163,
Willingham
16
v.
So.2d
20, 1964,
on March
statements
un-
454,
are
Ala.
We
261
In view of ceased, ex- Boone. testimony Mrs. and his statement of 287 Turner, of the de- cluster” which Mrs. Boone a sister wore and that E. L. Mrs. After contained seven stones. ceased, for the State. was a witness dia- two her sister owned testifying that Appellant asserts that the admission in and other rings, solitaire mond one evidence of the diamonds constituted re (she containing several diamonds cluster versible holdings error under the in Bu of dia- the exact number did not know State, chanan v. 109 Ala. 19 and So. following tran- cluster), the monds Cunningham State, 22 Ala.App. v. 118 spired examination: on direct So. 242. you Turner, look “Q. will Mrs. We do think the holdings not those here of one soli- consisting these stones controlling cases here. are diamonds, I smaller taire and seven your asking you are these am not case, larceny case, Buchanan does diamonds; you asking I am sister’s language which, casually contain when appears large whether or not this stone read, support position seems to taken size, cut, and you identical to be by appellant. It was cited in the case of your sister wore brilliance the stone State, Carter Ala.App. 530, v. 35 50 So.2d married? all her life since she was case, larceny also a case. Carter appellant position took the lawyers] : Mr. Walters of Smith’s [one trial court erred in admitting in evidence object that. We certain articles found in Carter’s home on Overruled. Court: ground “they and each of them were properly not tak- identified as articles except. We Mr. Walters: en from the burglarized building.” me A. You want to answer. In regard item, bag, Judge to one a cloth Q. Brantley (Mr. continuing) [Coun- Carr, writing Appeals, for the Court of Yes,
ty
ma’am.
Solicitor]
held
positive
that the
identification of the
bag by a State’s witness
all doubt
removed
A. That is as near
her stone as
like
propriety
admissibility.
of its
But
anyone I
color.
could ever know in
as
Chesterfield,
to the other
Phil-
articles —
Q.
Now
smaller
I will ask
ones.
lip
cigarettes
Juicy
Camel
Morris and
you
they appear
whether or
to be the
gum
appel-
Fruit
chewing
—found
same
size as
her cluster?
stones in
home,
only
lant’s
evidence offered
they
the similar in
were
Yes,
A.
do.”
kind, quantity and character
tak-
to articles
On cross-examination
Turner testi-
Mrs.
en
the burglarized building.
from
fied that
she
looked at the diamonds
times”;
“worlds and worlds of
that the sol-
Appeals
The Court
the arti-
held that
itaire shown
her
about the same size
paragraph
cles described in
above
as
one
I
her sister
“as near
wore
properly admitted in
under the
evidence
say,”
possibly
could
it “is similar” to
State,
holdings
Tyra
Ala.App.
the one her sister had. She also stated on
State, Ala.App.
82 So.
and Allen v.
cross-examination that
the smaller dia-
228,
Mrs. Pearl presses who “Appellant’s washed set counsel cites average “every Boone’s hair on an holding in Buchanan v. *19 weeks,” four State, to six authority a witness for the Ala. as for 19 So. an testified that she position. had seen the “diamond
288 posi- point the there study evidence no will was
“A
this
dose
of
pistol
either
dearly
that the court there was
tive identification of
the
disdose
ap-
cap
the
entirely different
which Coleman had and wore
the
dealing
with
merely
the
goes
with
question
night
from that
was killed
proach
the
ad-
weight
Head-
and not its
evidence
are now confronted.
which we
fully
missibility.
pos-
the facts
In
the
jurisdiction
2
this
1 and
delineate
*20
289
Westphal
Rhay,
they
84 S.Ct.
his statements Smith admitted
375 U.S.
were
v.
277; Alejandro
Texas
the
“millings”
pur-
L.Ed.2d
v.
same
which he
he
358, 11
said
523;
v.
chased from the
(Tex.Cr.App.),
unidentified man on
394 S.W.2d
147;
day
body
Graham,
before
S.C.
117 S.E.2d
Mrs. Boone’s
discov-
237
was
Colorado,
P.
ered
“millings”
Colo.
400
and were the
Moreno v.
same
which
Parrotta,
Chattanooga
316 he had
jeweler
2d
Commonwealth v.
left with the
the time
Mass.
55 N.E.2d
he left with him the solitaire and
the seven
All
smaller diamonds.
Cullen,
People
In
37 Cal.2d
v.
were
delivered
diamonds
same box
case,
Supreme Court
P.2d
a murder
the Alabama
to
authorities
the Chatta-
of California said:
nooga jeweler.
ruling
“Prejudice
asserted from
is
appellant
upon
Counsel for
insist
other
rings
permitted
which
in evidence
rulings
upon
admis-
of the trial court
Boyhtari
in ac-
handed to the sheriff
and exclusion
constitut-
sion
of'evidence as
they
testimony
were
cordance with
that
ing
not
reversible error.
will
under-
We
rings concededly
similar
and
to
owned
opin-
rulings
take
deal
this
with those
Mary
mur-
Cullen
of the
worn
[one
ion,
an-
they
likely
are
to occur
der
It
is contended that
victims].
trial,
hereafter
other
for the reason
and
they
evidence fails to establish
are
the conclusion
shown we
constrained to
rings
belonged
identical
which
must
judgment
here under review
complaint
Similar
is made as
her.
be reversed.
positive
other
Certain and
exhibits.
required.
identification
The ev-
was not
County
During
Solicitor
the course of
similarity
idence
was sufficient
Brantley’s argument
jury the
to the
follow-
justify
the admission in evidence of
ing transpired:
question
rings
objects,
and the
other
weight
credibility being
and
Now,
Brantley:
had come
if we
“Mr.
jury. People
Ferdinand,
Cal.
story
only
he had
here with
the first
563-565,
Mr.
say
house. He did not
fingerprints
his
not.
there is
Mr. Walters: No
fresh or
were
that
were on the win-
dow shade.
Brantley:
is Mr. Smith’s evi-
Mr.
It
pulled
his
it
that he
down
dence
Kelly
State’s witness
he
testified that
hand.
Brantley
heard Smith tell
that
“a
Mr.
on
Overruled, gentlemen, this
The Court:
Tuesday night,” the last time he
inwas
argument.
is not
house,
pulled
Mrs. Boone’s
he
down
shade on the front door.
any
is
is
that
there
arguing
He
not
testimony that it was.
Apparently
Brantley
Mr.
trial
Smith,
felt that
according
since
is, Judge.
heYes
Waiters:
Mr.
Kelly,
pulling
admitted
down a shade on
Brantley:
say he
it
Mr.
I didn’t
took
Mr.
Tuesday night,”
the front door on “a
off,
on there.
I said it was
Brantley
justified
telling
jury
in
was
Overruled, go ahead.
“that
fingerprint
that Smith’s fresh
on
The Court:
was
not
Actually
window shade.”
Smith
except.”
Mr. Walters: We
anything
pulling
said
about
down
even
absolutely
evidence in this
There is
no
pulled
window shade. He said he
down
fingerprints
that the
going
record
to show
But,
opin-
in our
shade on
door.
anywhere
in
Smith were found
ion,
on
the mere fact that
that
Smith said
home of Mrs. Boone.
Tuesday night”
pulled
“a
down a shade
he
only
regard
finger-
in
testimony
justify
not
in Mrs. Boone’s house would
by
prints
given
Dr.
that
Brantley
was
by
Mr.
argument
made
in
statement
Shoffeit,
said that
who
jury
fingerprints
that
were
fresh
Smith’s
presence
made in the
which Smith
any
individual
on
shade. The fact that an
Brantley
witness, County
Solicitor
justify
object
a conclu-
touches an
does not
County jail
in
Pike
Sheriff Davis
fingerprints
left
that his
sion
said:
March
Mr.
object. And that
effect of
is
Brantley’s
argument. Even after the
*
“* *
he
like to correct
would
court,
objections
the first
overruling
error that he had made with refer-
Brantley,
by
made
stated:
statements
Mr.
in Mrs.
time that he was
ence to the
*
“*
*
argument. He
not
is
this is not
house;
his
said we would find
Boone’s
testimony
it
there
arguing that
is
house. We
fingerprints
hair and
her
say he
was,”
Brantley
“I didn’t
Mr.
said:
couch;
would find his hairs on her
there.”
it
I
it was on
off.
said
took
shortly
before
he had been
this house
(finger-
“it”
There
evidence that
was no
was
dead. He didn’t know
she
found
there and no evidence
print) was on
whether it was one week or two weeks
to that ef-
supports
inference
a reasonable
but,
shortly before that time
was
opinion.
fect,
our
her house.”
State,
Certainly
v.
Rogers
that statement
Smith would
In our recent case of
Brantley:
be-
justify
reversed
not
the statement Mr.
Ala.
157 So.2d
we
yet
you
print
“And
I
made
counsel
tell
his
cause of a statement
fresh
jury,
argument
you
was on that
shade.
in his
window
I tell
true,
support in
no
print
on that window which statement found
rule
reference to
(Ital-
shade and
knew
on there.”
it was
evidence. We
appellate
Smith, according
courts
ours)
Dr.
ics
so often stated
Shof-
per-
said,
effect,
feit, simply
that “counsel should
that the officers
this state
is dam-
as fact that which
investigating
Boone’s death would mitted
state
defendant,
there
aging,
and of which
.is
Denno
was discussed and
Jackson
,
State,
where it
legal proof.” Coleman v.
87 Ala.
said:
.
no
.
.
*22
14,
278 Ala.
6
Eaton
So.
v.
“* * * A constitutional rule was laid
State,
444;
224,
v.
39
Moore
So.2d
177
Denno,
down in that case [Jackson v.
State,
235,
166; Nix
Ala.App.
97 So.2d
v.
368,
-1774,
378 U.S.
84 S.Ct.
12 L.Ed.2d
136,22
Ala.App.
449.
32
So.2d
jury
that a
is not
hear
confes-
908]
sion
judge
unless and until the trial
has
by
legal
is
There
no
standard
it
freely
determined that was
and volun-
prejudicial qualities
improper
which the
tarily given.
jury,
The rule
allows
remarks
of a solicitor in the
case
chooses,
if it
give absolutely
so
no
deter
gauged.
can be
Each case must be
weight
determining
to the confession in
mined on its own merits. Anderson v.
guilt
or innocence of the defendant
171;
State,
36,
Ala.
Hawkins v.
209
95 So.
but it
jury
is
not for
to make the
State,
762,
Ala.App.
29
195 So.
cert.
primary determination of voluntariness.
denied, 239 Ala.
a fact support that which found no original adhere holding We to our evidence. re- that the trial court committed possibility In overruling view of another versible error in the defendant’s trial, objections we call attention to a statement the statement made Sims Georgia, County v. 385 87 argument U.S. Solicitor his to the S.Ct. jury: yet you 17 L.Ed.2d “And where case I tell that his fresh 292 Lovell, Virgin tell
print
I
Islands
378 F.2d
that window
v.
shade.
true,
you
print
(1967),
in a footnote reference indicates
was on
retried,
that if
Mi-
he knew it was
the case had to
then
window shade and
applied
randa
and cited the
must be
Gibson
there.”
case, supra.
in support
brief
of the State’s
filed
Pinto,
F.
See
United
also
States
appears the fol-
application
rehearing
Curiam,
Supp.
(D.N.J.1966), aff’d Per
Honorable
lowing:
event that this
“In the
Circuit,
(Third
1967).
we entertain the view safer of this state to follow
for the trial courts Supreme
until United Court question finally determined
States has case, supra. comply the Gibson
is
If retried and convicted without applied,
the rule being Gibson case judgment if
and we affirm the of the court Smith, appeal
below on to this court our unavailing. altogether
action would Noia,
Smith, Faye under v. 372 U.S.
83 S.Ct. 9 L.Ed.2d and Townsend Sain, L. 372 U.S. 83 S.Ct. corpus
Ed.2d could institute habeas
proceedings in a United States District *24 would, doubt,
Court and that court feel no
compelled holding to follow Appeals
United States Court of for the case, supra. Fifth Circuit the Gibson Coleman, Gen.,-for Sp. Atty. Thos. Asst. opinion applica- The is extended and the appellant. rehearing tion for is overruled. n Ansley Topazi, P. and Gerald S. John appellees. Birmingham, LIVINGSTON, J.,C. and COLEMAN KOHN, JJ., concur. SIMPSON, Justice. appeal by the
This is an
State from
judgment
appellee’s
granting
motion for
The
new trial.
case arose as follows:
petition
The State filed its
for condem-
part
in the Circuit Court was the amount compensation damages appellees. due The State’s evidence on this sole issue con- sisted of an expert the State’s compensation witness that appel- due $13,700. lees Experts amounted to be- half of the landowners testified that $20,000. jury entitled to re- $13,500, turned a verdict of than lower notes reports possession a United this de- statements or statement attorney agents States the Federal you sepa- following, fendant Investigation. Bureau of severally: rately Investigator B. J. Potts, Gatlin, Brant- Chief O. Tom W. appellant, In this case the the defendant Davis; Presley ley, below, undertook to have the trial or- statements, der the deliver articles
Notes
notes property the be- the lower court session accused of upon the of which basis longing property the of evidence and deceased or admitted the articles in charged.” (35 admissible similar character kind is action error was and which ”*** 531-532, 5) prosecutions Ala.App. 50 So.2d for homicide. (246 32) Ala. 22 So.2d placed agree We with construction Diamonds, excep- perhaps a few with case. in the Carter on Buchanan case tions, identify are difficult absolute with supra, appar- case, money was Cunningham certainty compared The may and be appellant be- ently upon relied difficulty positive cited of identification. following language: One, Evidence, it cause Wigmore contains Volume on Third 154,p. 601, it said: Edition, is § prove “It relevant to was prior night just possession quantity there- the assault and “The mere of a of of money hammer and the defendant had a is itself no indication permissi- money description purposes possessor it was of the taker of was taken, a to the witness all charged general ble to exhibit hammer as because in ham- money her if the testifying then and ask denomination of the same alike, hypothesis whether mers similar. As to is and the material identified money exhibited ever so the same the mon- hammer found is as extraordinary evidence as ey as admissible in too to be taken is forced presents a in the assault denomi- hammer used be But where the received. very question. If it so money different found nations of shop de- fairly of money correspond and found in close identified taken finding spe- fendant, way, been admissible it would have the fact of the of that defendant, probative against money value as circumstance cific would have money identified, and, relevant, it would not so because the if not and be rulings, court, by fairly its so is marked or identical with admissible. found doing money and in this distinction so observed taken.” ” * * * Ala.App. (22 did err. not' (Mo.), Gyngard 333 See State v. S.W.2d 245) 118 So. 639; v. A.L.R.2d Commonwealth 90 106, 138 Locke, 335 Mass. N.E.2d 359. just language construe We do not holding been quoted courts confronted constituting as Most legally problem admissibility admit- in ev- hammer have been could not with positively which, because their ted in it was evidence unless idence of articles similarity in the being the hammer used to the articles involved identified as tend defendant crime connect assault. crime commission for which 675, 22 Ala. v. 246 In Blackmon trial, positive hold that the lack of said, part, fol- as this court So.2d weight the evi- identification affects lows : admissibility. See than its dence rather 106; Hill, P.2d testimony 193 Kan. was material State v. “The of Carter App. of (Cr.Ct. Oklahoma the defendant Gouard v. to connect tended Westphal, 62 P.2d possession de- Okl.), Blackmon’s with Chris denied, P.2d cert. fact that at Wash.2d property. ceased’s