*1 254 withdrawn, and corrected stairs, ending with death ment and his
cellar no jury and an statement was day May, was acci- 12th the requested ap- so, plaintiff’s additional instruction dent, being and, pellant. at least policy the should claim under passed upon jury. have been eliminated The error was [Citing cases]. giving instruction and withdrawal by the was drawn de- policy “This charge. Alabama place a corrected its fendant, liberally con- it should Bruce, 423, Ala. 96 v. 209 So. Power Co. holder, policy
strued in favor Sirten, 346; Camp, W. Sovereign O. v. W. com- against the strictly construed 539; 421, McLaney v. 234 175 So. Ala. prepared pany it. which Finucane v. 315, Turner, Ala. 104 So.2d 588, 267 Co., App. 184 Accident Ins. Standard cited. there cases 280,171 N.Y.S. 1018. Div. argued assign- We have covered no cause error and find for re- say, ments of to under “It was evidence, Mr. versal. Mulvi- all the whether injury, hill accidental sustained Affirmed. death, his injury resulted
that such exclusively of di- independently LIVINGSTON, J., and LAWSON C. court in- learned trial fell sease. STAKELY, JJ., concur. refusing to submit error ” * * * jury. question to appellant holdWe was not en charge affirmative a matter
titled cited are distin authorities law. case, by ap
guished relied from our
pellant,
Casualty
Inter-Ocean
Co. v. Fos
ter,
Ala.
where
147 So.
So.2d
voluntarily
insured
held
protect
chose
his
rather
car from theft
TINER
Cecil
freezing
keep
than
feet from
leave it
his
and, therefore,
injury to his feet could
STATE
Alabama.
means, though
not “be
the accidental
called
support theory party. either Apartments, Emmett,
Southern Inc. Bonner, 453; Pappa v. 114 So.2d 185, 105 So.2d
Appellant court argues that the erred erroneous oral instructions certain
giving exception jury, to which was taken. err,
The court did but when error attention, erroneous state-
called its *2 Merrill, JJ., Goodwyn
Simpson,
dissented. *3 Dothan, Farmer, Hubert W. J. Jack
Smith, Geneva, appellant. Patterson, Atty. Gen., and Geo. D. John Gen.,
Mentz, Atty. for the State. Asst.
COLEMAN, Justice. County, appellant Geneva in-
dicted, tried, convicted, and sentenced electrocution, for murder in death degree of Cuthbert Woodham first James shooting pistol. him with a At gun shooting Woodham the time county. He sheriff was shot owning a Buick cross-examination admitted p. August m. about 8:00 through the chest in evidence automobile day of the introduced 5, 1957, the 8th and died jury. shown m. at 5 a. same month :30 to show tended the state The evidence introduced confessions occupied Buick automobile a two-tone taking that after state were effect Hartford, in the town two men companion drove safe, defendant and evening early County, in Geneva where on a dirt Hartford out road outside stop- 5, 1957; automobile August they removed some narcotics safe hospital in Hartford ped at the through “shot”; they took a drove carried hospital and men entered two pulling stopped by a car Geneva narcotics; containing safe away an iron them; trunk ahead of the sheriff looked the men who was one that defendant side; right car to its of their and went the safe morning Next the safé. removed seat pull the back helped sheriff miles few west field found seat; on front sheriff started over when and most opened It had Hartford. car, found pull the loose seat out *5 narcotics Some removed. of narcotics the paper in which a sack with some narcotics safe was the place where left at the were Buick; had been on the front seat of the taken, safe was night the On the found. pull seat as the sheriff sack and started men occupied two Buick a two-tone car, pulled his out of the out defendant town filling passed station a time; as the gun and shot the sheriff one stopped and had the sheriff where Geneva fell and sack drug sheriff he car seat with car got in his The deceased talking. was him; sheriff and shooting started defend- few miles south A pursued the Buick. and Buick; ant ran to left of fired defendant the car overtook the sheriff’s of Geneva shots; three more started towards sheriff the with sher- stopped cars and both Buick his car and defendant ran to Buick and Buick. of the ahead car a short distance iff’s up picking companion; drove off after his car, met the driver his out of got Deceased companion defendant and drove south into cars, and both between of the Buick Florida; they on dirt roads and drove side to the driver’s back came gun threw the a bridge over wooden at The sheriff a conversation. and had Buick spot; unknown later defendant and com- Buick, then went trunk of searched the panion left the and Buick took with them that car. Mrs. right side of around remaining morphine the one bottle of which state, porch for the on Ganey, a witness top later left filling was on station where car, yards from the home about 75 of her apprehended. defendant was Defendant into her house. and went back a shot heard further said that Buick which more did she heard shots. She Later been found was the car used all this and off. The Buick drove identify defendant. car. was his and found shot taken to was The sheriff for himself. seat, cushion, Only witness A car he died. hospital where testimony “His quote his brief: from were found where de- narcotics some We and he took some effect that kind Defendant was arrested was shot. ceased Pensacola, Florida about 11 filling a narcotics following morning at station 5, 1957; during years m., August half miles south of Pensacola. a. and a three years he had past taken arrested, thirteen had in his mouth for When narcotics, much including kinds fifty two small white all bills with dollar two cocaine; he had been without that when in the bills. On cross-exam- folded tablets hours, several his narcotics for the tablets defendant admitted that ination developed hazy, he hallu- and memory was car with morphine. A two-tone Buick ; not know where he that he did plate highway was found on cinations license Texas late from afternoon what he did place one was or from of arrest. No miles twelve 5th, morning, next when until Defendant, August present at the car. filling he was arrested at a station near venire. The latter the' motion rested on Florida; Pensacola, when he ‘needed’ ground: following dope badly, likely a shot of he was to take “It affirmatively appears stupor much, too go and into a several names of large a number of citizens hours. possess who qualifications required “He when he was jurors further testified that law been intentional- have child, sepa- ly small his mother father and unlawfully omitted rated, grand- he with his went to live roll intentionally and unlaw- ** Dallas, Texas; fully mother left out of the box from years age when he was about twelve roll and out of which box the bone; was stricken with tuberculosis jurors names try de- spent that he most of some fifteen months fendant on charges said and at said Dallas; in a Hospital time, Methodist were so as taken so drawn time, during of this his considerable aforesaid.” leg was in traction that he suffered raised quash the indictment The motion to traction; pains severe on account of such jurors to the grand same given that during injec- this time he was the indictment. who found morphine pain
tions of for this sometimes day; several times that he learned what motions, state To of defendant’s each given nurses; being to him to strike. filed a and motion demurrer state’s demurrers
trial court sustained *6 de- “That his and overruled discharge after from the to strike hos- motions pital, a craving quash. he had for the narcotics fendant’s motions to he receiving; that he began then objections The state raised the that the kinds; the use of narcotics of various that quash motion the indictment too to came this varying degree use continued to from plea guilty late the not after of and that killing his until arrest for the Sher- on the the attack indictment should have Woodham; iff that he had served two sen- by plea pre- in been made abatement. We tences for burglary, breaking each for into insistences, termit of those consideration narcotics; drugstores and stealing that however, objection because filling the to the during one sentence he took six months jury of the box raised the to motion habit; in an Bible effort to break the course quash the the indictment is same awhile, off got that he it for but then got quash venire, by the motion raised to the back on it. sufficiency and the of the averments of the Appellant “On cross-examination denied must latter motion be determined. sheriff, killing just saying that he knew anybody; that he did wish to hurt Appellant State, relies on v. Cook money but further testified that stole 54, 21 App. So.2d and Inter-Ocean purchase narcotics, princi- with which Banks, Casualty Ala.App. 225, Co. blackmarket; pally on the that at the time 874, to in So.2d show error the trial court’s arrest, using large qiianities of his he was grant refusal either of the motions to (sic, quantities) that it him costing One quash the case in at bar. Hundred Dollars Two Hundred Dollars State, The record on file in Cook v. per day keep supplied himself on the supra, discloses that Ground 3 of the mo- black market.” quash tion to in indictment that case detail, alleges page in on a and a half Quash. Motions to paper, transcript the facts which constituted venire, Defendant filed a motion to quash the failure to select the from which quash drawn, the indictment and a motion to grand jury that case was duty week, providing jury for the for this accord with the statutes and have been kept jury so from empaneling juries. serving during selection past several weeks. Banks, Casualty Co. In Inter-Ocean covers the venire quash supra, motion For that the number of citizens “7. rec- pages of transcript put County a half jury two and into the Jefferson that in detail alleges jury box ord in that board on its shows a box from face discrimination, was drawn rank the venire because of only one names fact that contained so few citizens of Jeffer- county. judicial County divisions son are former thus included on the clearly established alleged jury jury The facts roll box. state did not pleading -the charged, fraud tt ‡ * * % merely conclusions. jury the said commissioner “That the citizens of represented to aof mo- Jefferson sufficiency averments jurors County in said box that the a motion quash the indictment tion to County qualified were fraud ground of Jefferson on venire quash the County citizens jury and Jefferson drawing grand selecting or representation service, this and that court in Wim- this before petit jury was fact, for that certain was false 186 So. bush v. sys- qualified citizens were classes of set are not of the motions The averments intentionally tematically original record opinion. out in fraudulently left out of box. said motions both appears appeal, Therefore, representation this others, the contained, among in that case all said citizens jury board that supporting grounds: following statement jury service was qualified citizens for jurors, who false, have to be false said “3. For and known week, not im- are inten- been summoned or commission and board jurors tionally male citizens who citizens partial misrepresented *7 class trade known as belong County to that of and the State of Ala- the of farmers, trade, miners, working relying upon such as The defendant bama. carpenters, independ- independent representation has been defrauded said businesses, commission; are em- ent and those who has said board or law; process ployed the United States Govern- of he has denied due been projects, on relief and those who ment his other constitutional been denied unemployed systematically kept jury are wants the are and he therefore rights, jury jury roll and out of the the to serve this week from summoned venire bias box “5. « serve this week are not free from in or For that Jefferson prejudice íjí the County. because of the fact jurors # summoned ífí which was filled County, Alabama.” said serve were quashed, jury as the commission impanelled from this box through the fraud of jurors summoned of Jefferson composed they principally are of State, supra, was tried on an v. Wimbush highest in those of the rich and station charged which murder in indictment discrimination of male citizens shooting gun or degree by with first qualified are otherwise but who who at pistol, the case the indictment in does poor and in are humble circumstances. case in the bar. The sentence Wimbush judg- was death electrocution and For that male citizens in “6. Jeffer- by this was affirmed court. ment County, in son who 'are moderate or circumstances, sys- have to indictment and objections humble There the kept tematically grounded from summoned on fraud being the venire were in
261 example petit proper jury pleading of jury and facts grand selection intentionally necessary to be averred to raise jury commission the ob- in that jection of persons drawing jury. fraud omitted certain classes jury ground roll. One fraud, pleading rule as The “ * * * few the fact so State, applied supra, in Wimbush v. * * * are thus included on citizens expressed has been as follows: ' holding roll “ ** * Fraud is a conclusion of refusing quash trial did not err in court law from proved. facts stated and that venire this court said: pleaded, law, When it is at in equity, or the facts supposed out of which is quash the motion to venire “The to arise gen- must be stated: a mere and summoned for defendant’s drawn averment, facts, eral without such fails, wholly trial its averment of -cannot, not sufficient. The court fact, disregarding as valueless de- — averment, pronounce such judgment. opinion and fendant’s unwarranted 206; Macy, Kinder v. 7 Cal. Catch- or fraud on conclusions —to show aver Manlove, ings 667; v. 39 Miss. [655] Jury Commission in Clay Dennis, 375; Bryan 3 v. Ala. v. box, drawing or in or filling Spruill, Jones, Eq. 4 27]; 27 N.C. jurors. Court, [57 summoning the The Story’s Eq.Pl. Aa. demurrer § therefore, committed no error refus- pleading to such not a confession of made, quash showing ing, fraud; demurrer confesses jurors and sum- the venire drawn only the matters fact which are for the moned trial defendant. pleaded, well conclusions or Terry al., supra.” v. Bell et Wimbush inferences of law fact. —1 Dan.Ch. supra, page Ala. at Crane, Pr. 545.” Flewellen v. 58 Ala. page at 186 So. 627, 629. facts quash stated the motion to Surety Julian, See also: National Co. v. instant certainly the venire case are 474; 227 Ala. So. Richardson v. specific not more or certain than were the Curlee, 189; 229 Ala. 158 So. Terrell motion stated facts Wimbush County, Marion So.2d If anything, case. facts here averred 160; Digest, Pleading, 8(15). specific. phrase, are less “a large rule, same Measured motions to number citizens” has no definite or cer- quash us are now before insufficient for meaning. say *8 tain To that a number is to failure to aver facts show fraud in fill- merely express large, is to a conclusion box, ing the and the trial court did not by comparison at arrived with another to, sustaining err in the demurrers and number, imaginary. Moreover, real or strike, granting the motions to the mo- large that a number to state of names have quash to the indictment tions and the intentionally omitted or left off venire. jury roll is to state a conclusion and is not a of statement the facts on which Change Motion for Venue. of that conclusion is based. Appellant change filed a motion for of language provided of the instant motion as for venue in Title § quash to substantially is lang- support like certain motion, Code 1940. In ap- uage opinion in pellant Inter-Ocean Casu- offered the testimony of eleven alty Banks, supra. Co. v. witnesses, As there manager em- two of whom were and ployed, language expresses Dothan, a conclu- radio in owner of different stations sion arising of law in that case from and two station were television news directors supported by a, alleged, Montgomery Dothan, the facts there and and one was language reporter is not intended to be newspaper and is not who covered the re- the news County discuss the case and newspapers va separate managers two of were it, sev- ports concerning during that the last was in County, one
published in Geneva have heard but little dis- eral weeks affiants identified business, not drug store two were recently they cussion and what photographer case occupation, as to and one trial, only heard related the date of that to‘ for the Hartford News Journal. any indi- affiants have not heard statements accounts that testified witnesses ap- These cating hostility prejudice against or case this facts of concerning the and pellant any person precon- or that had a television, radio broadcast were opinion ceived guilt to the or innocence immediately during the week particularly appellant, opinion that of affi- newscasts later shooting; appellant after ants receive a would fair and im- indictment, arraign- return of partial to related by trial County. a in Geneva trial, al- ment, setting the case Appellant repeated; objected were events to affidavits though earlier pictures by offered articles with newspaper front-page grounds the state "on the weekly daily we don’t published right have a to cross examine were also County and those witnesses.” in Geneva The court papers circulated overruled objection. Press and on Associated carried services; the news- wire United Press holding taken, such not well “was case about paper given attention this this court has said: case,” although the same as similar a any case occur- other know not witness did supposed constitutional objec- “The County received had which ring Geneva be sustained tion can not to such Copies the television publicity. as much affidavits when counter offered clippings newspaper con- newscasts only prosecu- It is in 'criminal state. in evidence received cerning case were right that the tions’ accused to Thirty us. here before and are as exhibits be confronted his witnesses is containing magazine fifty copies of a only This has reference secured. drug at a story about the case been sold proper, proceed- or trial those in Slo- At a small cafe in Geneva. store follow between the ings which com- sheriff, deputy comb, operated a former mencement of the trial and ver- appellant policeman, picture then a acquittal or conviction. It dict of un- hung wall. An had been on the Hable manifestly supposed has never been party later the word “Killers” known wrote preliminary pro- extend operator refus- picture, and the cafe grand jury ceedings room photographer photograph ed to allow a founded, the indictment or picture. proceedings. It collateral other right heard to be coun- akin to appellant’s Only one witnesses was sel, cause demand the nature and express opinion as to whether asked accusation, compulsory to have appellant could get fair trial *9 witnesses, exempt process for to be County. replied: He “Would be Geneva against giving evidence one’s from say. peo- I enough think there is difficult speedy by self, to have a trial an county ple give in this that would him a jury; impartial gauranties which are trial.” fair in the same clause of the enumerated interpreted motion, constitution, and must be rested on appellant When by principle of noscitur a sociis. by fourteen affidavits offered state 1875, I, art. All are walks of life and from these Const. 7.§ from various people County. rights during secured the trial of the parts of Geneva different defendant, investigation immediately after that affiants state collateral, preliminary people they many in Gene- issues heard shooting, State, Hussey reported v. accounts of this prosecution.” case so to his main, 126, 420, are, in factual and 6 So. detailed. We 87 Ala. not, however, do discover from the re- affida- objection to state’s Appellant’s ports any inflammatory us before state- correctly in the instant overruled vits was ments, matter, or other on which we can case. impartial a fair receive trial Geneva Moreover, County. the affidavits offered change of venue motion for On the state contradict such conclusion. has defendant in a criminal change The motion for was over- venue reasonable satis showing to the burden of without ruled error. and im that a fair the court
faction of appellant base a conclusion that could not an partial had and unbiased trial cannot be expected. Voluntariness of reasonably Confession. be
verdict cannot State, 82 So.2d 263 Ala. Denton v. argues Defendant that under the circum- 406; Campbell v. testimony stances shown of investi- State, 254 Ala. 623; Maund So.2d Williams, gator the confession of John Law, 553; Digest, Criminal 48 So.2d could not have been free and «=134(1). voluntary, that defendant made the con- thinking he thereby fession would obtain offered defendant on Evidence injection narcotics, an that an addict widespread shows there motion anything get will do injection, such an particularly in public in the case interest and, therefore, the confession should not immediately following the shoot period short, have been admitted. popular and well ing, deceased that argues that the circumstances under which County, appellant Geneva liked the confessions were made show that de- guilty of com had been drug addict capacity fendant lacked mental at that time crimes, previous the bizarre mitting his addiction because of and the fact high gave it news the case elements of deprived had been that he of narcotics reported according value, it was approximately days. two more or different receive ly did not but reporting The evidence does not show any media than news treatment promise was made to defendant give similar cases with ordinarily accorded injection, him an and on cross-examination news value. the same saying he denied he would the con- long “So as we have newspapers given if a “shot.” fession may expect we to have through them respect With to intoxication as render- crimes, report of and it is not to inadmissible, ing a confession this court unexpected that, when a homicide said: is committed and discovered under cir- present like the cumstances “ —even * * * ¿063 foi]0w nec_ n0f. account defendant’s of the entire essarily, party that because the newspapers matter truth —the much intoxicated his reason was so community, answering far dethroned as to him disable public interest, will furnish defend- comprehending the effect of his ad- n ant with at least some material missions, giving or from a true account application which to base similar they to which the occurence one under discussion. *.” Eskridge reference. *10 State, 27, 36, 179 Godau v. Ala. 60 So. State, 30, 25 Ala. 33. 908, 910. discussing the effect of mental in- applies capacity foregoing admissibility The also to radio and the of a confes- sion, reporting. television news this court said: 264
“ promis- give anything, him wasn’t may partially wouldn’t be person if that defendant testify ing anything,” him and to competent and still insane that sign statement Insanity did not want the is make confession. was handed paranoiac right. writing all term. A broad relative and over in evidence testify, and received the solicitor insane, competent but objection solicitor many not, of defendant. instances.” in doubt we jury. 199, read State, 196, statement the 258 Ala. Redwine v. 724, 727. 61 So.2d in court erred are that Insistences not writing it was because admitting the instant where So signed by also because defendant and at time that fails to show evidence rule under was inadmissable writing confession, defend purported making the Hickman, Ala. 63 v. Executor Acklen’s capacity to know mental not have ant did 494, of a mem- governs admission which happenings matters and remember and recollection orandum used to refresh narrated, was not the confession then he aof witness. addict defendant was because inadmissible deprived of had been tO' narcotics ed Several decisions of this court hold that hours, although 48 opproximately them for voluntarily made, confessions which have deprivation addiction facts of such writing signed by reduced to by the properly to be considered were defendant, properly were admitted evi credibility weight determining the against dence State, him. v. Shelton 217 testimony tending to be accorded 465, 8; State, Ala. 117 So. Bell v. 238 Ala. confession. prove the 586, 507; Dyer State, 192 So. v. 241 Ala. 679, 311; State, 4 So.2d 242 Johnson Unsigned Confession. 632; 278, State, Ala. 5 So.2d Brown v. 247 223; 288, State, Ala. 24 So.2d Thomas v. examination, proved the state direct On 358, 71; State, 249 31 Ala. So.2d Hines v. Williams, investigator, that on John 668, 72 So.2d 296. This court County 8, jail, in Houston August proof has held of both an oral that con the witness the Sher- presence of written, signed fession and also a confes County, defendant made a Houston iff of sion, offense, relating to same describing actions defendant’s statement admitted without error. shooting. Predi- night the fatal State, supra. not, Thomas We have that show statement was laid to cate however, any been cited to or found case voluntary witness then related and the jurisdiction squarely in this which decides incriminated the de- which the statement may not a whether or written confession fendant. be received over defendant’s The witness further has the writ signed testified where defendant not that defend- 493, repeated State, ant ing. the statement In Gordon v. taken writing down in the witness is found a statement the second So.2d it; defendant time told that: that a confession witness “It true written then defendant, it, requires if signature by asked defendant he wanted to no read * *," “ * * * whereupon af- defendant case you said this court in that but me,” just read it Appeals and that which held witness firmed the Court of signed read the statement although to defendant defendant asked it; to sign copy defendant of a original, unsigned witness asked carbon erroneously the statement in evi- confession was received true and de- true; fendant said it was accounting dence in the absence of an sign nonproduction original signed did the statement state- but said give would Ala.App. “we would him a ment. Gordon v. shot,” but witness told defendant “we So.2d
265
930,
A.L.R.2d
23
ble error.
appear to establish
cases, however,
931.
of a statute
that,
absence
rule
voluntary oral confession
contrary,
a
know of no
We
such statute in Alabama.
writing by a third
accurately reduced to
Probably
by
the accused
or to
best statement of the rea-
person and read
be cor
acknowledged to
for admitting
voluntary unsigned
sons
a
by
freely
him
against
confession is as
is admissible in evidence
follows:
rect
signed
never
defendant, although he
“ * * * First,
then,
to consider
Cleveland, 6
v.
writing.
See State
N.J.
question
governed by
it
as
is
subject of
560,
is the
316,
A.2d
which
principles
rules and
of the common
907; and also:
23 A.L.R.2d
at
annotation
law.
guilt
by
Confessions of
a
236, 90 N.E.2d
Varela,
People
405 Ill.
v.
prisoner
any person
any
at
moment
1373, 44
Saltzman, 241 Iowa
631;
v.
State
time,
any place, subsequent
at
Donato, 106
24;
v.
State
N.W.2d
N.J.L.
perpetration
to the
crime and
Foulds, 127
776;
v.
397,
A.
State
N.J.
previous to his examination before the
Lustberg, 11
895;
v.
336, 23 A.2d
State
L.
magistrate, are at common law receiv
703; People v.
51,
Wha
164 A.
N.J.Misc.
highest
ed in evidence as the
and most
570;
890,
len,
292 N.Y.S.
App.Div.
satisfactory proof
guilt,
because it
398,
155;
Haworth,
68 P.
24 Utah
v.
State
presumed
fairly
is
that no man would
Demareste,
617, 6 So.
41 La.Ann.
State
such a
against
make
confession
him
Harris,
132 P.
136;
74 Wash.
State
self, if the facts confessed were not
(1).
may
said,
true
It
however be
only applies
this rule
to confes
have,
deciding
no case
to the
found
We
by parol,
confession,
sion
and not to
but,
contrary,
present
in
reduced into writ
ing
by
parol
afterwards admitted
Strain,
App.
“In State v.
84 Ohio
true;
surely,
to be
but
if what a man
(Ct.
App.
82 N.E.2d
says, though not reduced into writing,
accused,
1948),
cap-
after he was
may
given
against
be
him,
evidence
officers,
by police
questioned
tured
says,
a
what he
when reduced
fortiori
and his statement
down in
taken
short-
admissible;
writing,
into
is
for the
hand
later
transcribed.
dis-
fact confessed being rendered less
posing of a motion
reference
by being
doubtful
reduced into writing,
secured, the
statement so
court said:
it is
greater
of course
intitled
cred
transcript
question
‘The
is not a
it;
and it
say,
would be
absurd
by
written confession
the de-
signed
that an instrument
by
is invalidated
a
competent
fendant and is therefore not
circumstance from which it derives ad
Cleveland,
as evidence.” State v.
su-
strength
authenticity:
ditional
pra,
78 A.2d
“Q. is in right. All Now that Yes, handwriting, A. sir. is it? ‘However, “Mr. Farmer: Tiner sign it’, yes, would not sir. "Q. at the That was written time you say the defendant made state- object “Mr. Boswell: We to it un- about, you cor- is that testified ment less it is the whole statement. Yes, A. rect? sir. objection “The Court: I sustain the “Q. speaks the truth? A. And already that. The witness has tes- Yes, sir. tified that Tiner said he wouldn’t it. request “Now we and ask the Court go
to let that in with the statement your If Honor “Mr. Smith: Jack quoting the defendant. please, already he has testified to the of that whole substance statement. “The you Court: When ask the that, you Court do mean that you want Yes, sir. I am “The Court: with- introduce it not? part drawing that of it. Sustain the ob- jection. “Mr. Farmer: I understood that it “Mr. Boswell: might We already introduced, add your we- have no if the
Honor. defense coun- sel wants to introduce the whole state- “The Court: I am withdrawing it ment. up That’s to him. already. I am allowing it to be with- “The Court: I put- don’t want to be drawn excluding it from the con- ting the defendant spot, wheth- jury, sideration of the but now we are er he is going introduce it or not you precluding introducing going to introduce it. The State has you up you. it if want to. That’s left right that, no to do gentlemen, and course, your yet. got Of hasn’t time I’ll exclude that. All right, sustain the to, you You can consider it if want Mr. objection to introducing those words. Farmer. A. May “Mr. A. then, Smith: we ask Farmer: “Mr. The defendant would going he is not it, to introduce part like to introduce that of the state- reporter the court take a knife and says signed ment that he there to paper sever from the those words that ‘However, this effect: Tiner would not withdrawn, we have and retain in the sign it.’ possession reporter of the court Court: That “The he wrote there? we have withdrawn.
“Mr. Farmer: That he wrote there “The Court: I want it to be retained ‘However, himself: Tiner possession would not reporter of the court sign it.’ so in the event he needs it it will be part of It becomes a or did or did preceding part
available. not do after the writing not in evidence.” although record it is had been read to him. made the memo- witness who appears purported The state’s It thus that after the he wrote it himself read back randum testified written confession had been recorded therein Williams, who transaction at the time the the witness *14 confession, spoke the memorandum purported and that had written down occurred sought to defendant then of The then added on the same sheet the truth. Williams of memorandum. part only a paper purported confession on which introduce lines, written, four to wit: “This had been trial, state, appeared to con- at The presence of statement was made right had a to intro- that defendant cede Davis, Investigator Alvin Sheriff Jr. right That de- memorandum. all the duce however, Williams, H. Tiner would John had, memorandum be whether fendant document, sign it.” The entire written used witness on di- as one considered lines, read including the last four had been recollection, Fletcher v. his rect to refresh The and admitted in evidence. 631; 216, Ala.App. 67 Ack- 12 So. state then moved to withdraw the last four Hickman, supra; or as Executor v. len’s objected lines. Defendant and asked on a document appearing a memorandum whether lines witness the four Williams posses- from the coming produced and whether the handwriting his called the adverse of a witness sion spoke an- four lines the truth. Williams Union Iron Works Co. v. party. Union inquiries both in the affirmative. swered Co., So. Naval Stores then the four lines The court stated been withdrawn excluded from had introduced all the document The state had jury, overruling consideration of the thus evidence, generally and without limita- objection defendant’s to the state’s motion then, objection purpose, and over of tion withdraw and exclude. defendant, part withdrew of the docu- place hereafter shown this action of sought As Defendant ment. was error. part court that which had been evidence state, withdrawn, but The defendant then offered in evidence permitted to do so. was not defendant part of the four lines which recites: “* * * however, sign Tiner would not Webb, holds Bumpass Stew. it.” objected The state and the court sus- answer introduced that where defendant tained objection. the state’s This also was evidence, plaintiff had the and exhibits in error. any part thereof. all right to read Easly where Dye, 14 Ala. holds that Thereafter, phy- the last four lines were execu- judgment introduced sically severed from the remainder of the thereon, to adduce plaintiff right tion had document which was admitted in evidence effect entire record of the suit to show as we part have discussed in the preceding judgment In Zimmer- and execution. opinion. convenience, of this For we some- Huber, man v. times hereinafter refer to said last four plaintiff’s letters evidence of several lines as the memorandum. “This, holding and the under It appear does not rule, letters; that the memorandum makes evidence of the entire ** approved by read to him, defendant and they him. charge If received reason, For that the memorandum was not discharge should also be heard to him.” In part confession, written although Union Iron Works Co. v. Union Naval “however, it is clear that the words Co., Tiner supra, plaintiff Stores where intro- it,” woüld not do constitute a short- showing plaintiff’s duced certain notes re- hand rendition of something defendant said property, tention of title to the suit Supply Co., supra, Transfer & could have held that the endorsements court in evidence to show introduced the remainder of the memoran- of the notes were back plaintiff and to de- dum. of title out of transfer plaintiff’s property.
feat claim the cases which we rule of the party one intro is that when have cited general rule that a document part a document duces into be taken in its en offered evidence must right intro party has the opposing tirety, Union Iron Works Co. v. Union of the re all or into evidence duce Co., supra, apply with Naval Stores must the document. mainder equal parties. force to In the at both case bar, permitted, the state over de unmindful of *15 are not our We objection, place fendant’s to in a evidence recogni considered duty give full and to part only Yet, of the document. when de provisions rule of “Error of the tion to the part sought place in a fendant to evidence 45, Injury,” Supreme Court Rule without only document, of the remainder of the Appendix, equal but 1940, Tit. 7 Code objection state’s was sustained. If employ commensu duty we demands that to be permitted part only, state is to offer a protect safeguard the diligence to and rate application then an evenhanded of the rule parties litigant. Salvadori v. rights of accord right. must defendant same If 372, 33 State, Ala.App. So.2d 752. 33 objec court in sustaining was correct appeal a criminal case is one “Right of in sought place tion when defendant to in evi 15, 389, Title Code of and substance § part only document, dence duty court 1940, imposes court in was in error overruling ob Chappelle errors.” record for search the when jection permitted the state was 431, 38, State, 37, So.2d Ala. part withdraw and leave evidence a would we do vio We are convinced only of part same The court document. of Rule 45 spirit intent and lence to objection in sustaining erred to defendant’s at bar. apply it to the case if we words, “however, offer Tiner would sign not it.” witness It is true that state’s John testify orally did that defendant Williams In Belt Indemnity Automobile Ass’n v. sign purported written corn would not Ensley 84, Supply Co., Transfer & testimony given, That oral fession. 88, 791, 787, parts 99 So. respect with however, procedure which prior letter, aof this court said: confession admitting the written resulted original evidence, plaintiff “As what memorandum excluding part company stated to his defendant sign would not which stated defendant 1920, July 27, letter to after them on court instructed the confession. “ * ** the damage judgment render- had been is jury that the memorandum against plaintiff, ed not admissible. is excluded you from withdrawn But, por- having brought out Defendant there- you it.” not consider will tions of the letter cross-exam- permit pressed earnestly the court to after plaintiff, competent ination of it was written memoran- part a favorable rebuttal to show all that was said evidence, but to dum to togo letter about the matter discus- under avail. no sion.” making the confession denied Defendant saying given In the would it if instant had been denied permitted An issue in the case whether introduce that a shot. approve memorandum make and was sus- not defendant did to which tained, The written mem- then, confession. holding state under the the written Williams, Ensley by the witness Indemnity Belt Automobile Ass’n v. orandum 1940, Code re- the doc- sentence. Title wrote the remainder of who also § day tending quires that the for execution ument, set material evidence * * * days place thirty less than qualify light on what “not or shed took day set for did the date of sentence.” The fact that defendant at that time. by law. support day execution was not a allowed sign the confession tends to it, argues not make Defendant this reversible that he did his contention have the was entitled to error. and defendant competent sup- consider Gray the trial port his contention. properly pronounce court had failed appeal, court a sentence of death. On experience generally accords Human here, proper remanded sentence. So for contemporaneous written memorial
to a day setting for execution the error than that greater deference a transaction merely reverse, not error to would usually oral account of the given to an sentence, require proper remanding for are the same event. Illustrations statute or, 15, 391, under Title Code § statutes, frauds, record attestation specify day this court execution bar, notwith In the case at ing acts. of this sentence. proved standing the fact that the state testimony, by oral confession defendant’s Remanded. *16 and Reversed place jury to before the saw fit state the account of the same transac written LIVINGSTON, J., and LAWSON C. admitting unsigned reason for an One tion. STAKELY, JJ., concur. and to be that has been said confession “ ' being the fact confessed ren MER- and SIMPSON, GOODWYN by being into less doubtful reduced dered RILL, JJ., dissent. greater writing, it is of course intitled to * *," Lambe, supra. credit Rex v. SIMPSON, (dissenting). Justice effectively testimony The oral could not pronounced supply ex- Court has probative majority the same force as the A of ruling of the trial rule writing. cluded The best error reversible evidence right in- to more denying rests on fact that the document is defendant a court to reliable, part a complete, of so-called and accurate source of in evidence a troduce part by mean- the State. information as contents and to its introduced document witness, paper pur- any a ing than oral statement had introduced of The State writing of transcription sub- and the defendant was entitled to have be a porting wit- part mitted to the that of document made defendant the confession tran- favorable to well as that of this was him as At the end ness Williams. part cer- against which was him. or scription was an endorsement there witness handwriting of the in the tificate cause, After an examination the entire of made was “This statement in these words: appears it from the the exclusion Davis, Jr., and Alvin presence competent probably injuriously Williams, however, Tiner investigator John rights affected substantial of defendant moved sign it.” The solicitor not would penalty this case where the death was im- The quoted endorsement. to withdraw posed. motion, whereupon, granted the trial court witness, inquiry after counsel some
Sentence. part that that of the en- for defendant asked 8, 1957, “however, On November Tiner reading: would dorsement was sentenced to be on it”, along executed sign December be introduced with the not day . The paper. execution thus appearing set confession same days less than thirty was from the objected date of the introduction of The solicitor meaning- endorse- words would remaining rest of the have been these words without the less, complete objection, hanging not a sentence but court sustained ment. The clause. endorsement holding all of the be introduced. merely part should
not of it it is place, the second difficult to see prejudiced how defendant could have been majority It is conclusion of any Williams, himself, event. testified with- the State it error to allow orally sign that defendant refused to further, and, quoted endorsement draw confession, and there is no evidence that require it was error to important he did not so more refuse. rather endorsement introduce the entire question jury, testimony for the “however, Tiner merely the than words: con, pro the witnesses was whether or I cannot sign would With this not it”. not defendant the confession at all. place, first the endorsement agree. In the repeat, indisputably To it shown that viz., proper, part was no document pur- not did would appendage, in It the confession. ported transcript made Williams. witness, following words transcription purported to what possible No error shown to have oc- incriminatory attributed statement therefore, I, respectfully dissent. curred and Certainly, no the defendant. confession, had it purported MERRILL, JJ., con- GOODWYN it would remain in evidence been allowed to foregoing. cur in the transcript have rendered the document to re- subjected the cause inadmissable and hearsay or self- introducing
versal evidently solicitor,
serving evidence. *17 this, properly the en-
realizing moved that deleted, trial court
dorsement be and the so, there
properly
being
it.
withdrew
This
right
no
introduce a
part
objectionable
There
whole.
tionable excluded on motion Supreme of Alabama. Court solicitor, be said cannot Aug. 18, 1960. objectionable the State removing the matter Sept. Rehearing 15, 1960. Denied. only effect allowed to introduce part document and of the confession have been
in fairness defendant should part of all or a
allowed to introduce not been introduced.
document which had
Nevertheless, trial court offered
permit to introduce en- endorsement, and this the defendant
tire do, only part insisting
refused to court it. Had trial acceded de- request deleted the first
fendant’s witness, the memorandum of