Rainey v. State

266 So. 2d 335, 48 Ala. App. 530, 1972 Ala. Crim. App. LEXIS 945

• Court: Court of Criminal Appeals of Alabama
• Decided: May 9, 1972
• Docket: 5 Div. 61
• Status: Published

Opinions

CATES, Judge.

Assault with intent to rob: sentence, fifteen years. Code 1940. T. 14, § 38.

Appellant and an accomplice, according to the State’s proof, lured or dragged a drunken victim from a cafe. Beside a country road they left him to sleep off his vapors, severely beaten and deprived of his wallet.

I

To corroborate the accomplice’s testimony the State adduced that: (1) personnel at the cafe saw the three leave in the defendant’s car and (2) on the same night about an hour later an Opelika police officer arrested the defendant for driving under the influence of an intoxicant. On this latter occasion the defendant had on a blood spattered shirt. There was blood on his hands. The defendant sought to account for the blood by two different explanations.

We consider the corroboration met the requisites of Code 1940, T. 15, § 307, as interpreted in Sorrell v. State, 249 Ala. 292, 31 So.2d 82. See also Smothers v. State, 38 Ala.App. 153, 83 So.2d 374.

II

During defense counsel’s cross examination of the accomplice the record shows the following incident:

“Q You’ve been convicted on at least nine occasions for cashing bad checks, have you not?

“MR. WRIGHT: We object to that.

“THE COURT: Sustained.

“MR. HORSLEY: That is going to the witnesses truth and veracity, if it please the Court.

“THE COURT: Is that a crime involving moral turpitude ?

“MR. HORSLEY: No, sir, but I certainly think it shows that the witness is not truthful.

“THE COURT: Just a minute. Sustain the objection.

“MR. HORSLEY: We except.

“THE COURT: Sustain the objection and the Court cites Sec. 434, Title 7, Alabama Code 1940, and cases thereunder cited.”

Whether or not under a given statute from time to time, “cashing”¹ a bad check was actually in law a crime involving moral turpitude is here beside the point. Defense counsel conceded it was not. Apparently the trial judge based his ruling on the asserted claim of the accomplice’s lack of truth and veracity. This latter enquiry is one based on repute, not on the facts underlying the repute.

Moreover, for the question to come under Code 1940, T. 7, §§ 434 and 435 it would have to be phrased so as to exclude municipal offence convictions, Grammer v. State, 239 Ala. 633, 196 So. 268, e. g., “convicted of the crime of__” See also Huggins v. State, 271 Ala. 428, 123 So.2d 911.

Ill

The defense offered to show that Rainey had red chalk (used in roofing) on his hands rather than blood. The State’s brief says: the substance that Sgt. Waller saw on his hands. Appellant cites an A.L.R. annotation in support of this idea. The same A.L.R. annotation, 80 A.L.R. 108 (1932) states:

“The Appellant contends that the jury should have been allowed to examine the red chalk that the defendant claims was

“ ‘ . . . Where, in a criminal case, experiments by the jurors are made during their deliberations to ascertain facts material to the case, but not included in the evidence, this, in general, constitutes such misconduct as will vitiate their verdict.’ [Emphasis supplied.]

“The red chalk was not introduced into evidence. It, therefore, affirmatively appears that it was not error for the chalk not to go to the jury. It would have been error if it had been allowed.

“The case which the Appellant cites in support of his position, Smith v. State, 261 Ala. 270, 73 So.2d 916, can easily be distinguished from the case at hand. The Smith case involved a pistol that was duly admitted into evidence. The red chalk was never admitted.”

We have considered the whole record under Code 1940, T. IS, § 389 and conclude that the judgment below is due to be

Affirmed.

PRICE, P. J., and ALMON and TYSON, JJ., concur.

1 . To “cash” can apply to a person who takes the purported cheek for currency. Uttering bad checks is sometimes called “passing.”