Addington v. State , 16 Ala. App. 10 ( 1916 )

The evidence set out in the bill of exceptions is ample to show the commission of the offense charged against the defendant and of his guilty participation. I deem it necessary to call attention to the state of the record in this case on the two questions on which Judge BROWN, in writing a minority opinion, reaches his conclusion that reversible error is shown. The record shows that the state's witness, Mrs. Woodruff, in plain, unequivocal language testified that the defendant represented himself to be a lawyer; and even conceding that it was "her conclusion drawn from the transaction leading up to the signing of the mortgage" (dissenting opinion of BROWN, J.), it is shown to have been based on her personal knowledge, derived from the very transaction between the defendant and herself in which it is alleged that he did so falsely pretend to her. His pretense need not necessarily have been the statement to her of the bald, naked fact in so many words. If his conduct and course of dealing with her, and the circumstances, were such as support this conclusion and leave no room for adverse inference, this would be sufficient. Moreover, it is shown by the bill of exceptions (transcript, p. 15) that, after the witness Mrs. Woodruff had testified that the defendant had represented himself to her as being a lawyer, the court propounded to her this question: "You said a little while ago he [defendant] stated to you he was a lawyer. Did he say anything along that line?" — to which the witness answered, "Yes;" whereupon the court asked the following question, "What was it?" to which the witness made reply, "Well, he just said he was a lawyer, and he would help me out." No objection was made to the admission of this testimony on the ground that it was a conclusion, or on any other ground — it is part of the evidence introduced in the case without objection. On at least two other occasions during the course of this witness' testimony she stated (without any objection being interposed or motion made to exclude the evidence) that the defendant told her he was a lawyer and would look after her case for her. Under this positive state of the evidence, it is not for this court to pass upon the truthfulness of this statement of the witness and say whether the defendant "really" did or did not make this representation. It was testified to without objection by a witness on the trial of the case, under the sanctity of an oath, and no attempt was made to impeach her, and it does not lie within the province of this court of review to reject it, and impeach the credibility of the witness, by holding that the defendant did not "really" state to the witness what she positively testified he did state to her.

The credibility of a witness' statement is a question for the jury trying the case at nisi prius (Davis v. State, 152 Ala. 25,44 So. 561), and the jury and trial court, who had the witness before them in person, with those advantages of observing conduct, demeanor, etc., not possessed by us, evidently accepted the statement as true, for the jury, principally on the testimony of this witness, returned a verdict of guilty against the defendant, which the court refused to disturb on a motion for new trial. The other constituent elements of the offense charged were all proven, and the question of the defendant's guilt became a question for the jury in determining the weight to be given the evidence, of which the jury are the sole judges. Smith v. State, 165 Ala. 50,51 So. 610. The verdict of the jury can neither be said to be without support in the finding of guilt, nor plainly and palpably against the weight of the evidence. The evidence introduced on the trial in behalf of the state was amply sufficient, if believed by the jury, not only to support, but to justify as a reasonable and fair finding, the verdict of guilt returned by the jury.

The other point upon which it is sought to show error committed by the trial court justifying a reversal in the minority opinion of Judge BROWN relates to an exception to a portion of the oral charge. It is stated in that opinion:

"At the conclusion of the oral charge, the defendant reserved an exception to the portion of the oral charge above italicized."

It is not borne out by the record that the defendant reserved an exception to that particular portion of the oral charge italicized in the minority opinion; and in order that the discussion herein of the oral charge and exceptions reserved thereto may be understood, the reporter will set out in full the oral charge of the court and exceptions noted as the same appears in the transcript (pages 47 to 55, inclusive).

In the first place, it Will be observed that the exception at the conclusion of the oral charge is general, and had reference to, and fairly included in the portion excepted to, the entire last paragraph of the charge, commencing, "For example," and not merely that portion only singled out and italicized in the minority opinion. It cannot be doubted that portions of the charge contained in this paragraph correctly state propositions of the law applicable to the case. In fact, for that matter, I may remark here that the charge as a whole pretty thoroughly and exhaustively correctly states the principles of law bearing on the case as presented to the jury. It is well settled by a long and uninterrupted line of decisions by the Supreme Court and this court that unless every proposition stated in that portion of the charge excepted to is unsound and erroneous, it will avail the defendant nothing as showing reversible error; and that a general exception is unavailing unless every proposition stated in the portion of the charge excepted to is erroneous. Bonner v. State, 107 Ala. 97, 106, 18 So. 226.

By reference to the report of the case, wherein the charge and exceptions to it are set out by the reporter, it will be seen that the particular portion of the charge to which an exception is in fact noted is specifically stated in the objection made by the defendant as beginning with the words: "It is not necessary." If we examine the charge as set out, and take the exception to refer to that part of the charge commencing with the sentence, "Now it is not necessary," etc., and ending with the words, "within three years next preceding the finding of the indictment," it will be found that many of the different principles of law included in this portion of the charge are correctly and well stated. In fact, the excerpt does not present the statement of an erroneous proposition of law, when construed in connection with the charge in its entirety. It is this entire portion of the oral charge that is set out in brief of defendant's counsel as being the portion of the general charge to which exception is reserved, and not that part selected by Judge BROWN from the middle of one of the paragraphs setting out the charge and italicized for criticism. This entire section of the charge commencing, "Now it is not necessary," and ending with the words "within three years next preceding the finding of the indictment," is also part of the charge that is set out in the bill of exceptions in hæc verba in this record as the part of the charge to which an exception was reserved by the defendant, and not that part italicized in the minority opinion, commencing in the middle of a paragraph and ending in the middle of a sentence, and to which no exception was taken as limited to that particular portion of the charge. But if we take the exception as only going to that portion of the charge announcing the principle to which specific objection was made, "to the effect that it is not essential to establish each representation [false representations averred] by the evidence" (see report of case), the court's charge on that point, that it is not necessary that all the alleged false pretenses should be proved as charged, but if it is proved beyond a reasonable doubt that the defendant made any one of the alleged false statements set out in the charge, it is sufficient, this is a correct statement of a principle of law (Gardner v. State, 4 Ala. App. 131, 58 So. 1001, and authorities there cited); and a reading of the charge and exceptions to it will clearly demonstrate that it was to the pronouncement of this principle of law that the defendant objected and undertook to reserve an exception. Under the ruling in B. R., L. P. Co. v. Friedman, 187 Ala. 562, 570,65 So. 939, such an exception is abortive and unavailing.

The criticisms of the general charge indulged in are not made the subject of attack by the defendant, nor, as we have seen, was there any objection made or exception reserved, limited to that particular part of the charge italicized and criticized in the opinion of Judge BROWN. No other construction can be placed on the objections made and exceptions reserved by the defendant to the charge than that general objections were made to designated portions of the oral charge of the court which do not admit of any question as embracing within the part objected to correct propositions of law on the subjects to which they relate, and, possibly, a specific objection to that part of the charge wherein the court correctly propounded the law to the effect that proof of any one of the pretenses alleged was sufficient. No objection was made, or even remotely hinted at, that the charge transgressed the rule in charging on the effect of the evidence, or failed to charge that the false representation must be a material statement of a matter of fact, or violated the rule of law as to the assumption of facts; yet it is on these grounds alone that the charge is attacked in Judge BROWN'S minority opinion and held erroneous, even to requiring a reversal of the case. The charge is not subject to any of the supposed vices made the basis of attack, nor are the questions for the first time detected and raised against it as a ground for attack in Judge BROWN'S opinion presented on the record. However, it may be well, under these conditions, to answer and show the fallacy of the objections discovered against the soundness of the general charge and given as reasons in the minority opinion why the case should be reversed.

The charge, read as a whole, or in any of its related parts, cannot with any degree of fairness be said to be an invasion of the province of the jury, as being on the effect of any part of the evidence. This is true, even applying to it the test of severe grammatical criticism, which is not the proper rule of construction to apply to the general charge of the court. B. R., L. P. Co. v. Murphy, 2 Ala. App. 588, 601, 56 So. 817. Even though part of the portion of the charge excepted to was faulty in this particular, in violating section 5362 of the Code, the other parts of that portion objected to were clearly not subject to such an objection, and the objection, therefore, would not be well taken. Maxwell v. State, 3 Ala. App. 169,171, 57 So. 505.

It only requires a fair reading of the charge to refute the strained construction of language that must be indulged in to even imagine that the charge read as a whole, in connection with the part referred to in this particular, trespasses upon the rule forbidding an assumption of facts. Hypercriticism should not be indulged in in construing charges of the court (S. N. R. R. Co. v. Jones, 56 Ala. 507; McGuire v. State,2 Ala. App. 218, 223, 57 So. 57); nor fanciful theories based on the vagaries of the imagination advanced in the construction of the court's charge, which is usually — as it is here, and as it should be — expressed in plain language that is susceptible of the ordinary understanding.

It is quite clear that the charge is not erroneous in the particular pointed out by the defendant in the objection made to it — i. e., the pronouncement of the rule of law that it was not necessary that all of the false pretenses alleged must be proven; and as the defendant saw fit to particularize the ground of this exception, the court is not authorized, as in the minority opinion, to go beyond this stated ground of exception and inject objections of its own, and then proceed to pass upon them, that did not enter into the trial or consideration of the case. A. G. Rhodes Son Co. v. Charleston, 41 So. 746.¹ "The reason underlying the principle — the theory upon which specific exceptions are required — is that, if error has in fact been committed, the exception reserved will point out the error to the presiding judge so that he may at once correct it." Opinion of the court by Justice (afterwards Chief Justice) McClellan in Bonner v. State, 107 Ala. 97, 106, 18 So. 226. Those particular so-called errors of the oral charge discussed in the minority opinion were not pointed out or called to the attention of the trial court in any manner whatsoever; nor were they, or any of them, made the basis of objection interposed to the charge of the court; nor are they discussed, or even so much as referred to, by counsel for defendant in a carefully prepared brief of 32 closely typewritten pages filed in behalf of the appellant.

The court, in its oral charge, more than once stated that, to constitute the offense charged, the misrepresentation must have been of a material fact, upon which the party relied, or had a right to rely, and read to the jury a full statement of the law on that proposition as announced by the Supreme Court in Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515. The court cannot embody in every sentence or paragraph of its charge the entire law of the case in all of its related parts and different phases, and criticism such as made of the court's oral charge in the minority opinion (even if grounded on objections and exceptions shown by the record) would be greatly strained and wholly unauthorized by any fair or legally recognized rule of construction. Such hypercriticism of a part of the oral charge, standing alone, is not the proper method by which to test it and measure the legal correctness or accuracy of the charge. Sheffield v. Harris, 183 Ala. 357, 369,61 So. 88. It has been long and well settled by an uninterrupted line of authorities that the oral charge of the court must be construed as a whole, and that a judgment will not be reversed because a separate part of the charge, standing alone and unexplained, is erroneous, if the charge, construed as a whole, contains a correct statement of the law of the case. Decatur Co. v. Mehaffey, 128 Ala. 242, 29 So. 646; L. N. R. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392. If a phrase, or any part of a charge, contains an elliptical form of expression, or is ambiguous or likely to mislead, it is both the privilege and duty of counsel to call the court's attention to it, so that it might be corrected. The rule is well stated in the language of Justice McClellan in the opinion of the court in McNeill v. State, 102 Ala. 121, 126, 15 So. 352,354 (48 Am. St. Rep. 17) quoting from another opinion of the Supreme Court previously written by him (M. E. R. R. Co. v. Stewart, 91 Ala. 421, 427, 8 So. 708, 712):

"The general charge of a trial court, given ex mero motu with reference to any point, is to be considered as an entirety, and in connection with the evidence; and it 'should be read and construed with regard to the connection between its several sentences and propositions, each declaration being shaded and interpreted in the light of the context; and if any part, so considered, limited, or expanded, asserts the law correctly, it will not furnish ground for reversal, however faulty the clause night be, if its meaning were not controlled by prior or subsequent passages.' Montgomery Eufaula R. R. Co. v. Stewart, 91 Ala. 421, 427 [8 So. 708]; Williams v. State,83 Ala. 68 [3 So. 743]; O'Donnell v. Rodiger, 76 Ala. 222 [52 Am. Rep. 322]; L. N. R. R. Co. v. Orr, 94 Ala. 602 [10 So. 167]."

In a much later case, Justice Mayfield appositely says in the opinion of the court on the same subject in Roberson v. State,183 Ala. 43, 59, 62 So. 837, 843:

"Some parts of the oral charge as to which exceptions were reserved, if considered as standing alone, unaided by that which preceded and that which followed, would be error, to reverse, under the rule as we have above declared it; but, taken in connection with that which preceded, and that which followed, and in connection with the written charges, as we must take them, it affirmatively appears that no injury could have resulted. The errors, if such they should be called, consisted of incomplete statements as to the burden and the sufficiency of proof, as to the question of self-defense. Such statements were not positively erroneous, but were incomplete, in that certain qualifications of the rule were not stated; but the proper qualifications were stated in other parts of the oral charge and in requested written charges, and this fact prevented reversible error."

When read in connection with the evidence in the case, as is the correct rule (M. L. R. Co. v. Hughes, 190 Ala. 216, 223,67 So. 278), the oral charge has not the slightest tendency to erroneously state the principles of law applicable to the evidence before the court, or even be misleading in its tendency in any particular made the ground of objection. Viewed from any and every possible angle, there is no room for a holding that the record presents any question showing error in the court's general charge.

I find no reversible error presented in the record, and an affirmance of the judgment of conviction, in my opinion, should be ordered. Judge EVANS concurs in this conclusion, and in the views herein expressed, and an affirmance of the judgment appealed from is ordered.

Affirmed.

BROWN, J., dissenting in part.

¹ Reported in full in the Southern Reporter; reported as a memorandum decision without opinion in 148 Ala. 671.