Spencer v. StateSpencer v. State
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Lead Opinion
Delphine Spencer appeals her conviction on a chаrge of possessing prohibited liquor. She was tried without the intervention of a jury in the Circuit Court of *94Monroe County on November 26, 1957, adjudged guilty, assessed a fine of $150, аnd sentenced to six months in jail. Due to illness of the clerk of the court below, the time for filing the transcript was duly extended.
The evidence for the Statе tended to show a deputy sheriff and an A. B. C. Board agent went to the house of Delphine, and there in the yard close to the steps leading to the hоuse, in a carcass of an automobile tire used as a flower bed, they discovered two pints of moonshine whiskey. They also found another pint undеr the front door steps.
The defendant was not at home at that time. The only two occupants were her seventy-eight year old husband and her five year old son. The State’s only evidence to show that Delphine possеssed the whiskey came from a statement attributed by one of the officеrs to the five year old boy.
The defense adduced proof that, although her seventy-eight year old husband was not able to go away from home, he had arranged for the lease of the premises.
Regardless of whether or not we would consider Delphine as head of the household rather than her husband, and since there is here no field for operation of thе common-law doctrine of the wife being coerced by the husband (seе Mosely v. State, 19 Ala.App. 335, 97 So. 247; 14 Am.Jur., Criminal Law, § 62), we think it was palpably erroneous for the trial court to have considered the testimony that the five year old boy stated the whiskey belonged to Delphine. As was stated by this court, per Simpson, J., in Flowеrs v. State, 31 Ala.App. 337, 17 So.2d 285, 286:
“These statements were not of the res gestae, were madе out of the presence or hearing of the defendant, and were inadmissible as hearsay. * * * ”
In Dutton v. State, 226 Ala. 1, 145 So. 581, the court, per Anderson, C. J., said:
“It has been well settled by the former decisions of this cоurt that when a case is tried by a judge without a jury, and illegal evidence is introduсed, it will require a reversal of the judgment unless the remaining evidence is without сonflict and is sufficient to support the judgment. * * *”
In Grimes v. State, 38 Ala.App. 94, 76 So.2d 684, there is a thorough review of сonstructive possession cases under Code 1940, T. 29, § 98. No common pattern of fact, of course, appears in the varied means by which alcoholic beverages may be secreted. Where actual manucaption does not exist, in order for the State to show possession (i. e., constructive possession) beyond a reasonable doubt, there should not be resort to speculation and surmise.
For the error indicated, the judgment below is reversed and the cause remanded.
Reversed and remanded.
Rehearing
On Application for Rehearing
The Attorney General has asked us to extend this opinion so as to show the following from the transcript of evidence as to the testimony in chief of Lawrence Fountain recalled as a prosecution witness:
“Q. Lawrence I’ll ask you when you went out to Delphine’s that day— how you happened to find the whiskey therе? A. Delphine’s little boy told me where it was.
“Q. Did you ask him where his mother’s whiskey was? A. Yes, sir.
“Mr. Owens: I object to that Your Honor,—
“The Court: I overrule the objection.
“Mr. Owens : We except.
“Q. The little boy told you where his mother’s whiskey was ?
“Mr. Owens: I object to leading the witness.
“The Court: I sustain the objection to leading the witness.
*95“Q. Did her little boy there tell you where her whiskey was ? A. Yes, sir.
“Mr. Owens: I object to the testimony as to what the 5 year old boy told him Your Honor on the ground it’s incompetent. It’s not shown the little boy was comрetent to,—
“The Court: I overrule the objection.
From Carter v. State, 63 Ala. 52, it is abundantly clear that a child of tender years is incompеtent as a witness until the condition is met, i. e., the trial judge fulfilling his duty to ascertain that thе child comprehends the nature of an oath. 58 Am.Jur., Witnesses, § 134; 97 C.J.S. Witnesses § 58, notes 3, 4.
Whаtever might be said as to the shortcomings and tardiness of the objections оf defendant’s counsel, and regardless of the discretion of a trial judge who has a child put before him as a witness (Code 1940, T. 7, §§ 439, 440), we consider the use of hearsay evidence here is wrong. Nor is Rule 45, Code 1940, Tit. 7 Appendix pertinent.
Application for rehearing overruled.