Leonard Kennedy was tried to a jury in the Marshall County Circuit Court on a consolidated case involving four distinct charges: (1) possessing prohibited liquors (Code 1940, T. 29, § 98); (2) resisting an officer of the law while acting in the line of duty (Code 1940, T. 14, § 402); (3) leaving the scene of an accident involving the automobile driven by him without stopping to give his name, address, etc. (Act No. 427, approved July 9, 1945, Gen.Laws 1945, p. 670); and (4) driving a motor vehicle while under the influence of an intoxicating liquor (T. 36, § 2, as amended).
Kennedy stands convicted of the first three charges and has appealed from the separate and several judgments adjudicating him guilty of those offenses.
The case made out by the State is as follows:
On the night of July 3, 1957, the high sheriff of Marshall County, along with two of his deputies, were in a parked car on a rural road near the intersection of another thoroughfare when an Oldsmobile driven by Kennedy came around a curve too far toward the outside and sideswiped the sheriff's car.
Kennedy stopped some sixty yards down the road, had his car door open and one foot on the ground as though to get out when, looking back, he evidently recognized the deputy, Mr. I. E. Massey, who said, "Hold it Leonard." Whereupon, Kennedy drove off.
The deputy shot at the tires of Kennedy's car. While we cannot approve this conduct in the face of a misdemeanor violation, it has no bearing on our consideration of this case, since to give it effect to justify any action on Kennedy's part would be merely allowing two wrongs to make a right. Moreover, upon a grand jury indictment
The other deputy turned the sheriff's car around and the party proceeded to chase Kennedy some four or five miles through the countryside. At one point, Kennedy was observed opening the door on the right-hand side of his car whereupon a container fell from his car. The chase continued until Kennedy suddenly slammed on his brakes, attempted to make a left turn into a narrow lane, and the sheriff's automobile ran into the rear of the Oldsmobile.
The sheriff then got out and told Kennedy he was under arrest. With that, Kennedy commenced fighting the sheriff, and the two deputies came to his assistance. The three succeeded in subduing the obdurate Kennedy in short order.
A return along the route of flight disclosed that the cardboard carton which fell out of Kennedy's car during the chase contained several pints of whiskey and at least one pint of vodka.
One of the deputies, Hubert Hipp, testified as follows:
"Q. Did Mr. Kennedy deny it?
"Mr. Floyd: We object to that.
"The Court: Overrule.
"Mr. Floyd: We except to it.
"The Court: I have overruled the objection.
"Q. Did Mr. Kennedy deny having thrown it out?
"Mr. Floyd: We except and we object to that.
"A. No, he didn't deny it."
The maxim, "He who is silent gives the appearance of consent," is, analytically, merely a description of the defendant's reaction to an accusation.
A statement to which a man does not reply is not any evidence of the facts stated—the evidentiary fact is his conduct as he hears the statement. The admissibility of testimony of silence derives from the general principles of evidence—not being confined to criminal cases. It stems from the doctrine of implied admissions. See also Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509. Wigmore mentions it as circumstantial evidence, § 292 (3rd Ed.). In the same work we find in § 1071:
The ratio decidendi of the Raymond case, supra, is that the State may show (1) the hearsay accusatory statement, and then (2) the defendant's taciturn demeanor rather
Though silence of the accused at a formal trial (or on commitment) cannot be used, e. g., Jones v. State, 30 Ala.App. 360, 6 So.2d 26; Moore v. State, 261 Ala. 578, 75 So.2d 135, yet, in other circumstances, where it would be one's duty or nature to speak and there is an opportunity to speak, silence is evidence, though slight in weight, Johnson v. State, 17 Ala. 618; Scott v. State, 249 Ala. 304, 30 So.2d 689.
The demeanor of the party must be such as to show an adoption of the adverse statement, e. g., Hill v. Bishop, 2 Ala. 320, where an estimate by a prospective tenant (before leasing) as to the cost of certain repairs made in the presence of the plaintiff-landlord could not go to the jury—"for it cannot be considered as an admission of their value."
"Silence, in the absence of a duty to speak, is not an admission," Jackson v. United States, 5 Cir., 250 F.2d 897, 900, a case where an F. B. I. agent had warned the defendant that whatever she said might be used against her.
The enquiry as to whether or not a defendant's demeanor or conduct denotes acquiescence is for the jury. Thus, in Hicks v. Lawson, 39 Ala. 90, at page 93, the reporter, in relating the case at nisi prius, states that:
The opinion expressly approved this practice.
The weight to be attached to the circumstance of silence ought not to be charged to the jury as the equivalent of a confession—certainly in such a stark form as that held bad in Campbell v. State, 55 Ala. 80. See also Scott v. State, supra.
Whether or not the accused could hear and understand the accusation is generally a jury issue, Martin v. State, 39 Ala. 523; Vaughn v. State, 130 Ala. 18, 30 So. 669.
Here Kennedy was in the sheriff's car in the company of Hipp and the sheriff when confronted with the case of jettisoned liquor. We think, since he is accorded the right of cross-examination, he bore the burden of persuading the jury that the officers spoke too low or that he was deaf, drunk, or otherwise hindered from knowing what they said.
Moreover, other principles of admissibility lie in the factual environs of Kennedy's being confronted with the liquor. First, there was no proof until then as to what was in the box; and, while the corpus delicti of the possession existed beforehand,
Thus, describing rather than defining res gestae (which strictly does not admit of a concise, settled meaning), we find Thomas, J., in Sexton v. State, 239 Ala. 287, 196 So. 744, 745, saying:
And the opinion quotes the following as the classic definition:
Second, the defendant's attitude toward the offense is shown: the State may bring out his demeanor before or after the crime (though he himself may be generally confined only to proof of the res gestae), Campbell v. State, 23 Ala. 44; Willingham v. State, 261 Ala. 454, 74 So.2d 241. Nor does this principle seem confined to homicide cases, vide Rountree v. State, 20 Ala.App. 225, 101 So. 325; Wilson v. State, 31 Ala.App. 560, 19 So.2d 777; Blakeney v. State, 31 Ala.App. 154, 13 So.2d 424, reversed on another ground 244 Ala. 262, 13 So.2d 430.
There was no error in the admission of this testimony.
We are next brought to a consideration of the applicability of Code 1940, T. 29, § 125, which reads in part:
As a factual predicate, the defendant, in his brief here, contends:
The State, to refute this contention, cites the following from Mr. Hipp's examination in chief:
"Q. Do you know the smell of white whiskey? A. Yes, sir.
"Q. Do you know the color of white whiskey? A. Yes, sir.
"Q. Do you know the color of bonded whiskey? A. Yes.
"Q. Did you smell of it? A. Yes, sir.
"Q. What was it? A. Whiskey.
"Q. Bonded or white whiskey? A. Bonded.
This is direct evidence on odor and color.
The trial judge, in his oral charge, had given the following direction of law on the effect of § 125, supra:
At the end of the oral charge, we find the following exception and oral supplementary instruction:
The appellant claims that the characteristics listed in § 125 (i. e., color, odor and general appearance or taste, color and general appearance) must be shown jointly (at least as to one or other of the two groupings and not disjunctively); that is, the State must adduce either (1) color and odor and general appearance of a prohibited liquor, or (2) taste and color and general appearance thereof.
The opinion in the Spelce case, supra, recites:
In Roughton v. State, 38 Ala.App. 17, 77 So.2d 666, flight, an object cast from a fleeing car, the odor of moonshine whiskey wafted through the air, and the discovery at the point of discard of a broken jug lying on wet soil, both soil and jug reeking also of moonshine whiskey were sufficient circumstances to make a prima facie case.
Classifying cases for the purpose of showing precedents is a difficult task particularly where the decisions so often depend upon the peculiar, if not unique, facts. Thus, the Spelce case where odor alone was not enough, at first blush, seems opposed to the Roughton decision.
The opinion in Wright v. State, 4 Ala. App. 150, 58 So. 803, 804, (that color alone is not enough to show whiskey) comports with common sense, and it further points out that, while color is not a sufficiently identifying trait, yet a statute using the same wording as is here pertinent was not meant to set up an exclusive rule of evidence as to how the State might show a prohibited liquor, e. g.:
Again in Gray v. State, 29 Ala.App. 568, 199 So. 255, flight, throwing away two bottles (one, "Green River"), and the "smell" of whiskey were sufficient.
We do not go into the question of whether or not, since Code 1940, T. 29, § 93, among other things, defines "whiskey" by name as a prohibited beverage, properly predicated opinion evidence that a beverage is "whiskey" suffices—see Newton v. State, 234 Ala. 91, 175 So. 563. Cf. "homebrew" cases, such as Grant v. State, 22 Ala.App. 475, 117 So. 1; Oliver v. State, 32 Ala.App. 85, 21 So.2d 704; Hendrix v. State, Ala. App. 96 So.2d 313; Booker v. City of Birmingham, 23 Ala.App. 312, 125 So. 603; Grant v. State, 23 Ala.App. 54, 120 So. 465; Jones v. State, 31 Ala.App. 378, 17 So.2d 545; Wright v. State, 37 Ala.App. 689, 74 So.2d 727; and it should be borne in mind that § 1 of T. 29 must be construed in pari
There was a prima facie case made out that the contents of the bottles were prohibited liquors.
It would have been a better (though not required) practice for the State to have produced at least one of the unbroken bottles, since it would seem from Mr. Justice Somerville's dictum in Husch v. State, 211 Ala. 274, 100 So. 321, the defendant may move for the production of evidence in the State's possession. On a whole consideration of the evidence, we hold the elements held sufficient in the Roughton case, supra, are more than met here.
A further specification of alleged error arose from the following on cross-examination of Kennedy:
This question was objected to as highly prejudicial, citing 53 Am.Jur., Trial, § 98, which reads in part:
Without going into the latitude allowed on cross-examination, we consider there was no error because the defendant's answer was negative.
The complaint upon which the warrant for Kennedy's arrest was issued on the charge of resisting arrest reads in the charging part:
Code 1940, T. 14, § 402, reads in pertinent part:
Section 402 also makes an offense of knowingly and wilfully opposing an officer who serves a writ or process. From a reading of the section, it consists of two offenses. Where, as here, the charge is resisting arrest, it is not necessary to word the complaint in the language used in describing the other offense which relates to obstructing the service of a writ or process.
In Lewis v. State, 3 Ala.App. 133, 57 So. 1035, an indictment using the expression "did knowingly and willfully oppose and resist * * * an officer * * * in the lawful arrest of one Dave Robinson," was held sufficient on analogy to the Code form of indictment for obstructing an officer in the service of process.
Here the complaining affidavit charges, in effect, resistance to an officer while acting in the line of duty.
This allegation we do not consider to be sufficient to charge the statutory offense of resisting arrest. The common law offense of resisting process or arrest is that embraced in § 402, supra, iv Bl.Com. 129.
Indeed, the crime of obstructing an officer in the performance of his duties first appears as a distinct offense in England under the Offenses Against the Person Act of 1861. Russell on Crime (11th Ed.), 764, et seq. Apparently, theretofore the offense
And in Woodworth v. State, 26 Ohio St. 196, under a statute proscribing that one "resist or abuse any sheriff," it was held not error to charge the jury "that to constitute the offense charged, of resisting an officer, it was not necessary that the officer should be assaulted, beaten, or bruised."
Accordingly, we hold that the complaint here is too broad in its terms to charge any offense under the statute. It is a familiar principle that statutory crimes ordinarily should be charged in the terms of the statute, particularly if the statute sets out the elements constituting the offense.
Here, instead of employing the phrase "resisted an arrest" as the statute sets forth, the State has substituted the expression, resisted an officer "while acting in the line of duty."
The words of the Court of Appeal of Florida (2nd Dist.) in State v. Brown, Fla. App., 101 So.2d 599, 602, are apt in this case:
See also Sparrenberger v. State, 53 Ala. 481.
Under the English statute prohibiting assaulting a peace officer in the execution of his duty, a simple assault can be an included offense, and a separate count for such would not be required. R. v. Wilson (1955), 39 Crim.App.Rep. 12. See Archbold (33rd Ed.), § 1841 (15th Cum.Supp., September 1, 1958). It is to be noted, however, that the English form of particulars in the complaint ordinarily uses the word "assaulted."
In this instance, we are not willing to say that the complaint here also charged and apprised Kennedy of an assault or an assault and battery upon the person of the sheriff, since it uses only the word "resisted." We consider that the word "resisted" has a passive connotation as well as an active one, and may also be taken as co-extensive with the word "oppose," as in McAlpine v. State, 19 Ala.App. 391, 97 So. 612; see also Duncan v. Jones (1936), 1 K.B. 218.
Considering the fact that under our criminal procedure a prisoner is not entitled to a bill of particulars, we must hold that the complaint in this case not only failed to charge the offense of resisting arrest, but also failed to include any cognate offense, such as assault or assault and battery.
During the solicitor's closing argument, the transcript of testimony shows:
"Mr. Moore: That's a reasonable inference. We can argue that.
"The Court: Overrule.
"The Court: Overrule."
In Barnes v. State, 34 Ala.App. 183, 38 So.2d 21, 23, we find:
In the Wilbanks case, supra [28 Ala.App. 456, 185 So. 771], op. cit., the court said, apropos the instant enquiry:
It is to be noted that the Wilbanks case, supra, was one of purported constructive possession. Here, we have a defendant in a dry county who, by the direct evidence, possesses (by manucaption, as it has been said) and carries a liquor therein prohibited—though it may have been legally bought in Madison County. This transportation, while not of an amount great enough to be a crime
The statute prohibiting possession reads:
The complaint charged:
The argument was not prejudicial.
Act No. 427, supra, covering the offense of leaving the scene of "an accident resulting in * * * damage to a vehicle," formerly (in Code 1940, T. 36, § 31) covered "damage to property," Echols v. State, 35 Ala.App. 602, 51 So.2d 260, 261. Whatever may have moved the Legislature, we pretermit any consideration of whether or not the change from the broad to the narrow in dropping "property" for "vehicle" meant that the mischief to be corrected was that found most commonly on public roads. For while, indeed, the statute does not use the word "highway" at all, yet the prosecution brought in ample proof that, if there was a collision, it occurred on a public road.
The general rule of indictments and informations as to verbiage of mala prohibita is generally stated:
In Hochman v. State, 265 Ala. 1, 91 So.2d 500, 501, there is a rather extended discussion from which we extract:
And after discussing the exception to our conclusionary form of accusation as applied in Gayden v. State, 262 Ala. 468, 80 So.2d 501, the opinion continues:
We hold there was no need to charge the "accident" happened on a public highway.
The originating complaints by way of affidavits and warrants arose in the County Court of Marshall County. Jury demands were made in writing which brought into operation § 25 of Act No. 346, approved September 7, 1955 (Acts 1955, p. 786), which reads in part:
There was no error in proceeding, as was done here, against Kennedy for the possession of a prohibited liquor without indictment or a solicitor's complaint. Under Code 1940, T. 29, § 123, the original affidavit (with amendments, if any) is the State's mode of accusation, except in felony cases.
Resisting arrest is a misdemeanor, hence there is no constitutional barrier to a case thereof being tried without an indictment, nor of such a trial ab initio in the circuit court. See Thomas v. State, 107 Ala. 61, 17 So. 941; Witt v. State, 130 Ala. 129, 30 So. 473; Collins v. State, 218 Ala. 250, 118 So. 265 (Brown, J., dissenting); Ex parte Flowers, 218 Ala. 257, 118 So. 462 (Brown, J., dissenting). The dictum in Larkin v. Simmons, 155 Ala.
The provision under § 25, supra, for transfer to the circuit court for a jury trial without further or other process is akin to that referred to in the Witt case.
As to the case of leaving the scene of an accident, we have concluded that the prosecution was faulty in that there was no indictment brought.
In Lashley v. State, 236 Ala. 1, 180 So. 717, the forerunner of Act No. 427, supra, was held to embrace a felony. We see no change in the 1945 enactment as to this classification of the offense.
Under § 8 of our Constitution, as amended,
In Cisco v. State, 23 Ala.App. 446, 126 So. 610, 611, this court said, in reversing:
The appellant cannot waive the absence of an indictment: waiver thereof is only possible under the terms of Amendment 37, supra, when a prisoner desires to plead guilty while awaiting action of a prospective grand jury on a noncapital felony charge, Code 1940, T. 15, §§ 260-266.
According to the opinion in People ex rel. Battista v. Christian, 249 N.Y. 314, 164 N.E. 111, 61 A.L.R. 793, the constitutional requisition of indictments generally in all cases of felony is not one conferring a mere personal privilege upon an accused person, but is so imbued with the public concern for due and proper administration of the law that no individual may waive it.
In De Golyer v. Commonwealth, 314 Mass. 626, 51 N.E.2d 251, it was pointed out that the Massachusetts bill of rights has consistently denied the power of the Legislature to permit trial which could lead to imprisonment in the State prison save there be an indictment. The court went on to approve there a statute (somewhat like our §§ 260-266, supra) which permitted the written waiver of an indictment with consequent prompt arraignment. The opinion points out that the Christian case, as to nonwaiver, does not apply in all states, citing also Edwards v. State, 45 N.J.L. 419.
However, a reference to the annotation on the right to waive the lack of an indictment at 61 A.L.R. 798-802, shows a majority of the cases there, including Kyser v. State, supra, are in accord with the Christian case. See also Annotation, 56 A.L.R.
It is well to remember the wording of our own Constitution on this point:
As the Supreme Court of Louisiana stated in State v. Straughan, 229 La. 1036, 87 So.2d 523, 528 (4-3 decision), a case involving a short form of charge, i. e., by name and article number of the offense vis-a-vis a constitutional provision that an accused be informed of the nature and cause of the accusation against him:
Historically, in Alabama the Christian case deserves more than the usual deference and weight which is due an opinion from a respected sister court of the Anglo-American common law tradition. In the Attorney General's opinion (Vol. 14, p. 150), supra,
Under the doctrine that the judgment of leaving the scene of an accident is void, it follows that it will not support an appeal (see Kyser v. State, supra, Taylor v. State, 23 Ala.App. 265, 123 So. 281), and hence the appeal therefrom must be dismissed.
The judgment in the case of possession of prohibited liquor is due to be affirmed.
Kennedy raised the defect in the complaint which charged him with resisting an officer, and, accordingly, the judgment in that case is due to be reversed and remanded.