HARWOOD, Presiding Judge.
This appellant has been adjudged guilty of assault with intent to rape. The victim of the alleged assault was Judy Faye Cofield, the 13 year old daughter of the appellant.
The evidence introduced by the State tends to show that in September 1960, Judy Faye was living with her mother and five other brothers and sisters, at Blackfish Lake, Arkansas. The appellant showed up at their home about two o'clock on an afternoon with another man, and at five o'clock that afternoon the appellant, his friend, Mrs. Cofield, and all of the children left for Alabama in an automobile. Both the appellant and Mrs. Cofield had relatives living near Spruce Pine, Alabama.
Arriving in Alabama, the party divided up, with Mrs. Cofield and some of the children going to her brother's home to stay, while the appellant and one or two of the children, including Judy Faye, went to the home of the appellant's father, Mr. Henry Cofield.
Judy Faye testified that after she had been at her grandfather's for a few days, the appellant and the grandfather came in about 11 o'clock one night. Both men were drunk. Her father asked her if she wanted to drive over to the house where her mother was staying, and Judy Faye replied that she did.
The appellant and Judy Faye set out in the appellant's automobile, with the appellant driving. After they had gone down the highway about a quarter of a mile, the appellant turned off into a side road and proceeded down this side road some distance, when he parked the car near what is described in the record as a junk yard.
During the struggle with her father Judy Faye testified that she kept saying, "Don't Daddy, don't Daddy, remember I am your daughter."
It appears that the scene of the alleged assault was near a sawmill, and three of the workmen were spending the night in a bunkhouse at the sawmill. They testified that they heard the sounds of a struggle, and could hear a girl crying and saying, "Please don't, oh, no, Daddy, please don't." After some time they decided to investigate and drove their car into the side road. This apparently was the car which the appellant thought was the sheriff's automobile. However, they did not continue their approach but decided to go for help. They went to Mr. Luna Kent's house and with Mr. Kent they returned to the scene. Here they found the appellant's abandoned automobile. A pair of girls slippers and panties were found in the car. It was about midnight that they returned to the car. They then searched in the area of the car until about 3:00 A. M., but found no one
Mrs. Virginia Cofield, the mother of Judy Faye, testified that the appellant came to her brother's house about daylight on the day in question and inquired if Judy Faye was there. When informed that Judy Faye was not there, he said he had been home in bed and Judy Faye had gone off in a car with somebody. Later he said he knew Judy Faye was all right, that she was just scared and ran off.
In his own behalf the appellant testified that upon his release from the Federal penitentiary in Leavenworth, Kansas, he had proceeded to Arkansas where he had gotten his family to take them to Alabama. His time was limited as he was to report to a parole officer in Chicago in a few days. He had come to Alabama for the purpose of settling a charge of embezzlement pending against him. He had experienced some difficulty in getting sufficient funds to settle the embezzlement case, and was attempting to sell a TV set he had with him in order to raise some money. It was the appellant's contention that he and Judy Faye had started off on the night in question to drive to a man's house in connection with the TV transaction. He insisted that he had let Judy Faye drive the automobile, and that on the ride they got into an argument When the car was stopped on the side road, Judy Faye took possession of the keys to the automobile. He attempted to get the keys away from her and their argument waxed strong, continuing for about thirty minutes. In order to cool down his temper, he got out of the automobile and walked down the road. During this time Judy Faye jumped out of the car and disappeared. He thought she had gotten into the automobile he had observed coming down the side road, and had further thought that this automobile belonged to the sheriff.
He remained in the vicinity of his car until about 2:00 A. M., then wandered about in the woods for a time, and before daylight had come to a lighted house. The man at the house refused to drive him to his father's, and he later made his way home on foot, arriving at his father's home
The appellant denied vehemently having made any such statement to Sheriff Hovater.
On cross-examination the appellant testified that during his argument with Judy Faye, he had accused her of running around with men in Arkansas, and she had replied, "No Daddy, no."
The appellant denied that he saw or heard any people, that is Mr. Kent, or the sawmill workers around his car at any time during the night.
He also denied that he had ever written any letters to the prosecutrix or her mother containing any such matter as that testified to by Mrs. Cofield.
As before stated, Mrs. Cofield, the mother of Judy Faye, testified as a witness for the State. In the course of her testimony, she testified that a letter had come addressed to "Betty" which was in fact a letter to Judy Faye from the appellant. She testified that she had seen and read this letter and that it was in the appellant's handwriting with which she was familiar. She further testified that she had seen Judy Faye burn the letter, upon the occasion of some of Judy Faye's friends coming to visit Judy Faye. Judy Faye also testified that she had burned the letter because she did not want her friends to know of its contents.
In this background the record shows the following during the direct examination of Mrs. Cofield:
The fact of Mrs. Cofield having seen and read the letter, and her testimony that it was in appellant's handwriting, was admissible as primary evidence. Bell v. State, 156 Ala. 76,47 So. 242.
The evidence further showing that the letter had been burned without fraudulent intent, then, testimony by Mrs. Cofield as to its contents was admissible as secondary evidence.
Counsel for appellant argues however that the contents as testified to by Mrs. Cofield were inculpatory admissions in the nature of a confession, and that a predicate of voluntariness was required before the statements in the letter could be properly received in evidence.
In Alabama, inculpatory admissions in the nature of a confession—that is, directly relating to the fact or circumstances of the crime, and connecting the defendant therewith—are subject to the same rules of admissibility as direct confessions and are admissible only after a predicate of voluntariness is established. Baker v. State, 35 Ala.App. 596, 51 So.2d 376.
If, for the sake of argument, it be considered that the vague statement in the letter as testified to by Mrs. Cofield, "He just said he was sorry he done what he had, he didn't know what he was doing, or something or another like that, I just don't remember what all he said" was an inculpatory admission in the nature of a confession to the extent that it tended to connect the accused with the wrongful act, and placed him at the scene thereof (see McGehee v. State, 171 Ala. 19, 55 So. 159), this concession would not, under our decisions, render the contents of the letter inadmissible.
In Oakley v. State, 135 Ala. 15, 33 So. 23, 26, the appellant had been convicted of rape. During his trial, and over his objections, letters he had written the prosecutrix and her mother, while appellant was in jail, were received in evidence. One of the grounds of objection interposed to the admission of the letters, was that the letters contained a confession, and there had been no predicate laid. In the letter to the prosecutrix, the appellant said that if he had mistreated her, he hoped she would forgive him and that he would never do so again. In the letter to the mother, he stated that if he ever got out of the trouble, he would never do so again. In considering the propriety of the admission of these letters the court said:
In Bracken v. State, 111 Ala. 68, 20 So. 636, 637, a prosecution for seduction, the court stated:
And in Parker v. State, 10 Ala.App. 53, 65 So. 90, a murder case, a paper writing, or note given by defendant to another with a request that it be delivered to a third party, was held to be properly admitted in evidence, the court stating:
In Rex v. Derrington, (1826) 2 Carrington and Payne 418, it is stated that there are only two instances in which an incriminating letter by an accused is not admissible, first, where the letter is shown not to be voluntary, and second, where the letter is a privileged communication. To this should also be added, as a third ground for denying admission of such letter, where it is shown that the letter was fraudulently destroyed by the party offering it, as in an attempt to suppress evidence.
Counsel further argues that Mrs. Cofield's testimony as to the contents of the letter was improperly admitted in that one testifying as to the contents of a lost instrument must be able to speak clearly as
Mrs. Cofield's testimony in regard to the contents of the letter was:
Certainly that part of Mrs. Cofield's testimony, "He said he was sorry he done what he had" is sufficiently definite. Also her testimony, "He didn't know what he was doing or something like that * * *," we think clearly indicates the tenor of that part of the contents of the letter. The qualification "or something like that" was nothing more than an indication that the substance of the letter was being recounted. Its tenor was yet clear. Her further statement, "I don't remember what all he said," merely relates to other portions of the letter which the witness did not attempt to recount.
No error resulted from the court's ruling permitting Mrs. Cofield to testify to the contents of the letter.
Counsel for appellant further contends that error infects this record as a result of the court's rulings in connection with objections interposed to certain portions of the argument of the solicitor to the jury.
The first instance is as follows:
We consider the above argument too fragmentary and inconclusive to serve as a basis of review. The appellant had testified that he had been convicted in three separate automobile theft cases. Without some indication of the context or frame in which the statement was made, to say it was injurious would require resort to speculation on our part. Certainly the quoted statement falls far short of the argument declared to be prejudicial in Stephens v. State, 252 Ala. 183, 40 So.2d 90, 93, wherein the solicitor argued to the jury:
After pointing out that evidence of convictions involving moral turpitude is admitted only as affecting the credibility of a witness, the court wrote:
As before stated, the fragmentary character of the argument contained in the objection prevents an application of the doctrine of the Stephens case, supra, to the instance now under consideration.
In British General Insurance Co. v. Simpson Sales Co., 265 Ala. 683, 93 So.2d 763, 767, 768, the court was considering an argument wherein it had been stated, among other things:
In considering the above argument our Supreme Court wrote:
While the above was a civil case, we think the principle enunciated quite applicable to the present case. The evidence here presented by the State was abundant in its tendencies establishing the appellant's guilt of the heinous crime with which he was charged, while the testimony of the appellant was in many aspects unimpressive to one reading the record. Apparently the jury, as evidenced by their verdict, so concluded.
During his oral charge to the jury, the court instructed the jury as follows:
In view of Judy Faye's testimony that the appellant ceased his assault on her
Charges 1, 2, 3, and 4, requested in writing by the appellant, were affirmative in nature, and properly refused under the developed evidence.
Charges 5, 11, 12, and 13 were sufficiently covered by the court's oral charge, and refused without error. Gordon v. State, 40 Ala.App. 214, 110 So.2d 329; Gordon v. State, 268 Ala. 517, 110 So.2d 334.