Bradley v. State , 21 Ala. App. 539 ( 1926 )

With whom is BRICKEN, P. J., concurring, bases the action of the court in denying the state's application for rehearing upon the following opinion as being the law of the case:

The admission of entries of the date of birth in a Bible to be admissible as independent evidence is confined to original entries made in a Bible that contains a history of the facts about which it purports to speak, and does not permit isolated and incomplete entries in irregular places to be admitted in evidence, especially when the entries do not appear to be original and to bear on their face, when considered in connection with other facts in the case, intrinsic evidence of their improbability as a true record of the family history. 10 R. C. L. 1137, par. 343.

Such entries are too easy of fabrication to be admitted as evidence without the closest scrutiny, and, where they do not bear the unmistakable stamp of authenticity, they should be excluded. The Bible here offered was testified to as being the family Bible of witness, who was the grandmother of the prosecutrix. In it there was no record made as to witness' family, except the marriage of the girl's mother to B. F. Wilder, and the four entries of the date of birth of Berta Mae, born October 9, 1908; Roy born October 27, 1914; N. N. Glascow, prosecutrix's mother, born September 30, 1891, and W. F. Wilder, prosecutrix's father, born August 1, 1887, following each other in the order named, all written in pencil, and having every indication of having been written by the same person and at the same time. The grandmother testified that she wrote them down and at the time each was born. That the witness did the writing may be true. That she wrote them at the time each was born seems improbable. If she had done so, the oldest would have appeared first in the list and the youngest last, and it appears that at the time of birth W. F. Wilder was not even connected in a remote degree with witness. Moreover, the record did not contain the name or birth of witness' husband, nor her own, nor her marriage, nor the birth of any of her own children, other than the mother of prosecutrix, though she had others, nor of any of her other grandchildren, save and alone Berta Mae and Roy. It is clear, therefore, that the entries were not intended as the family record of witness, and surely it could not be the family record of W. F. Wilder, the girl's father, as it is not claimed that it was kept by him or a member of his household. The entries were not admissible as entries from the family Bible. Turner v. King, 98 Ky. 253,32 S.W. 941, 33 S.W. 405; Bryant v. McKinney, 96 S.W. 809, 29 Ky. Law Rep. 951; and authorities supra.

But aside from the foregoing, family records are admitted as secondary evidence, and are not admissible where the person making the entry is at hand and primary evidence can be had. The entry in the record is admissible as a declaration of the person making it and of the other members of the family, who are presumed, from its possession by and accessibility, to have known of the entries, as a family record. 1 Greenleaf, p. 200, par. 114d.

The rule for admission of entries from family Bibles or missals is declared to be: "An entry in a family Bible stating the fact and date of birth of a member of the family is competent evidence, and may be admitted where the person who made it is dead or unknown," and, we may add, inaccessible. This rule is supported in this state by the opinion in Cherry v. State, 68 Ala. 29, White v. Strother, 11 Ala. 720, Baintree v. Hingham, 1 Pick. (Mass.) 245, and a long list of cases both in this country and England, cited in note, Ann. Cas. 1912A, 1218. The opinion in the Cherry Case has been recently approved in Duncan v. Watson, 198 Ala. 180, 182, 73 So. 448, and Landers v. Hayes, 196 Ala. 533, 536, 72 So. 106. So, whether the entries in the Bible rises to the dignity of a family record or not, such entries are not admissible in this case with the party who claims to have made them being present and testifying.

Nor is it permissible to introduce the entries as a memorandum in aid of the testimony of the witness. A memorandum is but secondary evidence of the facts of which it speaks, the primary evidence is the knowledge of the witness, if he is able to testify truly as to the facts mentioned independently of the memorandum, and it is only when this primary proof is not available that resort may be had to the secondary. 10 R. C. L. 909, par. 63.

It was testified to by the state's witness that Dr. Turk attended the mother of Berta Mae at the time of the birth of prosecutrix. The time of a cyclone was fixed as of April, 1908. Defendant sought to prove that Dr. Turk was injured in the cyclone, and did not practice in Albertsville after that time, and that, therefore, if he officiated at the birth of Berta Mae, it must have been before the cyclone. This evidence would tend to impeach the testimony of the state's witness on the crucial issue in the case, and should have been admitted. "Any evidence relevant to the issues which tends to establish their relation to each other of cause and effect is admissible." E.T.V. G. R. Co. v. Lockhart, 79 Ala. 315.

It was in evidence without objection that prosecutrix was, in July, 1924, the time alleged in the indictment, an inmate of the Girls' Industrial School at Birmingham, a state institution for wayward girls. The solicitor was within the bounds of legitimate argument, therefore, when he made the statement to which exception was taken.

It is urgently insisted that the defendant should have been granted a new trial on the ground that the verdict of the jury was excessive and contrary to the great weight of the evidence. Prior to the act of the Legislature approved September 22, 1915 (now section 6088 of the Code 1923), there was no appeal from motions denying motions for new trial in criminal cases. Since that time such motions are on the same footing as those in civil cases, except in so far as they may differ by reason of the burden of proof. In passing upon and reviewing the action of the trial court every reasonable presumption should be indulged in favor of the correctness of the rulings of the trial court. This for the obvious reason that appellate courts should be slow to disturb the verdicts of juries, and, second, the trial judge has had the advantage of seeing and hearing the witness and parties and advantages in consideration which cannot be transferred by transcript. On the other hand, where the overwhelming evidence is against the verdict of the jury, no sort of reasoning would justify an appellate court in refusing to take prompt action in setting aside the verdict. It is evident from the record that much silent and invisible pressure entered into the trial of this case. Experienced trial lawyers know and recognize that this frequently happens in the trial of cases. This is evidenced by the tenseness with which the material witnesses gave testimony, the character of their answers, the questions of the lawyers engaged in the trial, the rulings of the court, the character of the offense, the extreme penalty imposed by the jury, and many things unexplained and unexplainable.

The verdict was for 10 years' imprisonment in the penitentiary, being the extreme limit fixed by statute. Is it excessive? Allowing every intendment against the defendant, the girl was within 3 months of the age of consent, the act was on her part entirely voluntary, there was no evidence that defendant knew her age, there was no force, arts, flattery, or inducement offered, other than the mutual desire to satisfy passion. If, under the facts, the verdict was not excessive, what should be the punishment under facts showing aggravation. The amendment to the statute raising the age of consent to 16 years is of recent origin. When the minimum and maximum penalty as fixed by this statute is considered, it could hardly be said that the Legislature had in mind the maximum sentence for a violation unattended by aggravating circumstances. It is true that the statute says, "Punished at the discretion of the jury," and on appeal appellate courts cannot take away that discretion by saying what the punishment shall be, but even the discretion placed with juries in fixing punishments is not unrestrained, and, where the judgment in civil cases or punishment in criminal cases is so excessive as to clearly indicate a judgment or punishment based on motives other than upon facts in the case, the appellate court will grant a motion for a new trial. Cox v. Birmingham Ry. L. P. Co., 163 Ala. 170,50 So. 975; M. M. R. Co. v. Ashcraft, 48 Ala. 15. If the duty rest upon the appellate court to prevent the imposition of an excessive penalty measured in dollars and cents, how much more imperative is that duty when the penalty is the liberty of a citizen.

On the motion for a new trial on the ground that the verdict was contrary to the great weight of the evidence, the question turns upon the evidence touching the age of the girl. On this question the state offered the girl herself, who testified that she was born October 9, 1908. This, of course, is hearsay, but is that class of hearsay admissible in evidence; it being presumed that her age and birth was an accepted fact of which she knew. John Glascow, an uncle of Berta Mae, testified that the date of birth was October 9th. This witness was 27 years old at the time of trial, and therefore a lad of 10 at the time of birth. When this witness was asked "how he remembered the date," he answered "I just remembered it." This part of his testimony at least is most unlikely. The only other witness to testify to October 9th being the date of birth was old Mrs. Glascow, the grandmother. Both John and Berta Mae being members of the family of the grandmother during childhood, it would appear reasonable that such information as they received as to age came from the grandmother, so that the principal evidence as to the age of Berta Mae came from Sarah Glascow, the grandmother. She testified that Berta Mae was born October 9, 1908. On cross-examination this witness testified that the mother of Berta Mae lived with witness in 1908, at the time of the birth of Berta Mae; that during that year Berta Mae's mother did not have a lawsuit with a neighbor Mrs. Pope. She also testified that "the cyclone" took place April 24, 1908; that Dr. Turk, a local physician, attended as physician at the birth of Berta Mae; and that Dr. Turk was seriously hurt in the cyclone; that a house fell on him, from which he remains a cripple to this day. It was well established that "the cyclone" occurred April, 1908, and that Dr. Turk attended as the physician at the birth of Berta Mae. It is also established by all witnesses testifying on the subject, both for the state and defendant, and without dispute, that Dr. Turk was seriously injured in "the cyclone." To prove the date of birth of Berta Mae as being April, 1908, Dr. Turk, the attending physician, says he remembers it, and that it was three days prior to "the cyclone" in which he received injuries rendering him unable to practice, and that he did not practice in Albertsville after that time; that the birth of Berta Mae was the last professional visit made by him in Albertsville. The defendant offered to prove by T. J. Fletcher the injury of Dr. Turk by "the cyclone," and that he never practiced his profession after that time. Why this evidence was not admitted in corroboration of Dr. Turk we cannot see, unless it be conceded that Dr. Turk was so injured, and that afterwards he did not practice his profession. This witness did testify that Dr. Turk did not practice during October, 1908, and could not "get out" without assistance. This witness was a brother-in-law of Dr. Turk, and had every opportunity for knowing the facts under inquiry. W. J. Wallace corroborated the testimony of Fletcher. Tom Tully testified as to the date of "the cyclone," and to a lawsuit pending between the Glascows and Popes, which was called for trial in April, 1908, and postponed on account of the birth of a child, and that a month later the mother of Berta Mae came into court with a 6 weeks' old child in her arms. The foregoing facts as to birth and date were corroborated by Dr. Erwin, a physician who was practicing in Albertsville during 1908, and who was called to attend the mother of Berta Mae a day or two after "the cyclone," at which time she was in bed with an infant baby; by John Glascow, an uncle of Berta Mae, who visited the mother just after "the cyclone"; by Will Glascow, another kinsman, who visited the Glascow home "a day or two" before "the cyclone"; by Dave Glascow, another kinsman, who visited the home a week after "the cyclone"; by E. O. McCord, a practicing attorney at this bar, who was engaged in the Glascow-Pope lawsuit; by Frank Wilder, the father of Berta Mae, who was present at the birth. There was some other evidence tending to impeach the testimony of Sarah Glascow, but on collateral matter. In addition to the foregoing which was in evidence on the main trial, there was introduced cards, sent through the mail on the day first set for the hearing of the motion for new trial, addressed to the defendant and to the defendant's attorney, and postmarked Gadsden, Ala., in words and figures as follows:

"Remember. "Every criminal, every gambler, every thug, every libertine, every girl ruiner, every home wrecker, every wife beater, every dope peddler, every moonshiner, every crooked politician, every pagan papal priest, every shyster lawyer, every K. of C., every white slaver, every brothel madam, every Rome controlled newspaper — is fighting the Ku Klux Klan. "Think it Over. "Which Side Are You On?" We have been at pains to set out the foregoing that there may be no uncertainty as to the holding in this case, recognizing the rule that no judgment refusing a new trial should be reversed, unless the appellate court is clearly convinced that the verdict was contrary to the great weight of the evidence. Cobb v. Malone et al., 92 Ala. 630, 9 So. 738. After carefully considering this entire record we are firmly convinced that this case falls within the rule that a new trial should be granted where, "after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust." Cobb v. Malone, supra; W. Ry. of Ala. v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316, 38 Am. St. Rep. 179; First National Bank of Ashland v. Prickett, 19 Ala. App. 204,95 So. 920.

The application for rehearing is overruled. BRICKEN, P. J., and SAMFORD, J., concur in the foregoing.