Scott v. State , 249 Ala. 304 ( 1947 )

This appeal comes to this court under the automatic appeal statute. Code 1940, T. 15, § 382(10), 1945 Cumulative Pocket Part; Easley v. State, 246 Ala. 359, 20 So.2d 519.

The general statute provides: "* * * the court must consider all questions apparent on the record or reversed by bill of exceptions, and must render such judgment as the law demands. * * *" Code 1940, Tit. 15, § 389.

The automatic appeal statute provides: "In all cases of automatic appeals the appellate court may consider, at its discretion, any testimony that was seriously prejudicial to the rights of the appellant, and may reverse thereon even though no lawful objection or exception was made thereto. * * * though no motion to that effect was presented in the court below. (1943, p. 219, § 10, appvd. June 24, 1943.)" Code 1940, Tit. 15, § 382(10), supra.

After such examination it clearly appears from the four corners of this record that what occurred is stated below.

The evidence offered by the state to prove the corpus delicti goes to show that the victim of the rape and her companion, Walter Ledlow, were discovered by three negro boys on the ground behind a hedge near a parked automobile from which the negro boys took a flashlight which they used in locating the victim and her companion. The car was parked and the prosecutrix and her companion were on or near the city dump just outside of the City of Anniston, Alabama. After an attempt to aid the victim and her companion in getting the car started and being unable to do so, the three negroes subsequently robbed both of said parties and two of the three forcefully ravished the prosecutrix.

It clearly appears that the confession of Williams was in the hands of the solicitor and was presented to the court during the examination of Dempsey to lay the predicate for proving the "implied inculpatory admission" arising from silence, and that the solicitor also had before him the confession of Jemison taken at the same time. Williams' confession was presented to the court, was offered in evidence and the court ruled against its admission. From said confessions of Williams and Jemison taken by the officers and reduced to writing the statement appears that these three negro boys were warned that they did not have to speak, but if they talked what they said could be used for or against them on trial in the law court. One who reads this record has got to shut his eyes and his intelligence to escape this conclusion.

While these three negro boys ranging from 15 to 19 years of age were "huddled" around the desk in the city jail in the presence of Dempsey and Montgomery, the arresting officers, white men and experienced officers of the law, after being cautioned by these officers, which negro boys of this class and age regard and speak of as "the law," Williams and Jemison confessed to participating in the robbery and Williams confessed to participating in having sexual intercourse with the prosecutrix. These confessions were reduced to writing by Montgomery and the written document, signed by Williams as his confession, embodying the statement that they were so cautioned they were not required to speak, was read over to them in the presence of the defendant. The confession of Williams embodied the statement that the defendant, as he started home from the scene of the crime, said he had sexual intercourse with the prosecutrix twice. The court, who was fully advised as to the contents of the written confession made by Williams and the statements therein, over defendant's objection, permitted the witness Dempsey to state that the defendant "did not open his mouth" to deny said statement.

The purpose of the question put to the witness Dempsey was to lay a predicate for an implied admission of guilt arising from defendant's silence. Weaver v. State, 77 Ala. 26. The law is settled that the essential elements of the predicate to the competency of silence as an implied admission is that the state must show, by evidence that the accused heard and understood the accusation, and that he remained silent in circumstances which "naturally called for a reply" and the party to be affected by it must be in a situation "in which he wouldprobably respond to it." Jones v. State, 156 Ala. 175, 176,180, 47 So. 100, 102; Rowlan v. State, 14 Ala. App. 17,70 So. 953; Raymond v. State, 154 Ala. 1, 54 So. 895; Underhill's Criminal Evidence, 4th Ed., §§ 259, 260.

The defendant having been warned by "the law" that he did not have to speak, it is my opinion that the circuit court committed reversible error in overruling defendant's objection and in admitting this testimony.

After defendant had testified as a witness, denying his guilt and denying that he was present on the occasion of the commission of the crime and had offered evidence tending to prove an alibi and to show his whereabouts other than the place of the crime, he introduced Jemison as a witness in his behalf, who on the direct examination, repudiated that part of his confession which tended to identify defendant as one of the three who participated in the robbery and one of the two who participated in the rape, and testified that he did not see defendant at the scene of the crime and didn't know him. On cross examination the solicitor was permitted to examine this witness as to every statement made in his confession to impeach his testimony given for this defendant and offered the written confession as a part of such evidence. The court permitted this evidence to go to the jury without limiting its effect to impeaching the testimony of witness Jemison given on the trial. This evidence was not competent, legal or material as going to show the defendant's guilt and it should have been limited by the court and the court should have made it plain to the jury that the impeaching evidence was not evidence against this defendant. As was observed by Mr. Justice Thomas in the case of Manning v. State, 217 Ala. 357, 359, 116 So. 360, 361, "The purpose or competency or limited effect of such evidence should be explained and made plain to the jury: * * *" See also Estes v. State, 140 Ala. 151, 37 So. 85.

This rule is a recognition that a trial judge who presides over a court of justice is not an automaton to be driven and moved by the objections of counsel who represent defendants on trial for their lives but he sits as the "mouth-piece of the law" and when justice requires, it is his duty to speak, and explain to the jury the intricacies touching the trial in respect to the law of evidence. It cannot be assumed that the jury knew that the impeaching evidence was not evidence against this defendant on his trial. There is certainly nothing in the case of Cotney v. State, 248 Ala. 1, 26 So.2d 603, to relieve the court of the duty to see that this defendant received a fair and impartial in this case.

I am, therefore, of opinion that for these errors, keeping within the spirit and letter of the automatic appeal statute, the judgment of the circuit court should be reversed and the defendant granted a new trial. Easley v. State, 246 Ala. 359,20 So.2d 519; Davis v. State, 245 Ala. 589, 18 So.2d 282.

I, therefore, respectfully dissent.