After Remandment. Upon the original consideration of this case the order and judgment of this court reversing and remanding the cause was predicated upon the two points of decision as will be noted in the opinion, supra. Other insistences of error were presented, but in the opinion and view of this court, there appeared no necessity to discuss and decide them as not being necessary to the conclusion reached.
Upon certiorari to the Supreme Court, by the State, the writ was granted and the Supreme Court made and entered the following order, viz.: "It results that the writ is due to be granted, and the judgment of the Court of Appeals reversed and the cause remanded to that Court for further proceedings."
The two appellants, acting within their legal rights, insist upon the consideration by this court of the points of decision originally presented, and, as stated above, were not dealt with and decided in the original opinion. This we will now proceed to do.
In granting the writ the Supreme Court said: "With the general rule of law broadly stated in the opinion [of the Court of Appeals] we find no cause for disagreement." And the Supreme Court then proceeded in its opinion as follows: "But this reasoning overlooks the theory upon which the State proceeded in this case to the effect that defendant Clayton first assaulted the prosecutrix and defendant Daniel aided and abetted in this assault and conspired with Clayton to lure the husband away from home in order to leave Clayton free to commit the offense."
As to the foregoing, earnest counsel for appellant say in brief: "It is difficult for us to understand just how the Supreme Court reached the above conclusion from the record in this case, as it conclusively appears from the record that the defendants were tried on the testimony of the prosecutrix to the effect that each defendant separately and independent of the act of the other, each, with force and against her will had sexual intercourse with her."
By what method or upon what premise the Supreme Court announced in the opinion the (stated) theory upon which the State tried this case in the court below cannot and does not concern this court; for under the Statute Title 13, Section 95, Code of Alabama 1940, the opinions and decisions of the Supreme Court govern the holdings and decisions of this court, and what is said hereinafter will be confined to the stated theory (supra) in which the State tried this case as declared and announced by the Supreme Court.
These two appellants, as defendants in the court below, as are all persons charged with crime, were entitled to a fair and impartial trial, according to the fundamental law of the land, which among other things, import that the trial shall be had before a fair and impartial jury to judge the facts; and that said jury shall be properly, and without error, or omission, instructed as to all phases of law pertaining and controlling in the case upon trial.
In the instant case, appellants strenuously insist that the trial court not only failed to properly charge the jury as *Page 112 to the pertinent and controlling principles of law, but absolutely refused to so charge the jury as evidenced by the refusal of several special written charges requested by the defendants.
In this connection it is insisted that error prevailed in the action of the trial court in refusing to defendants written charges numbered 5, 6, 7, 8, 9 and 18. These we have examined and are of the opinion the insistence in this connection is well taken and must be sustained. The charges properly and correctly state the law, and are directly in point with the "theory upon which the case was tried," as declared by the Supreme Court, supra. As stated, the Supreme Court held that the case was tried upon the theory that defendant Daniel aided and abetted Clayton in the assault, and conspired with him in the commission of the offense. Certainly, then, the defendants were entitled to have the jury instructed as to the law applicable to such a situation, and, as further stated, this the court failed and refused to do. The Attorney General, in brief, undertakes to justify the action of the trial court in refusing said charges by the insistence that they were fairly and substantially covered by the court's oral charge, and by several charges marked "Given," requested by the defendant. The principal insistence in this respect has reference to charge 9, which the Attorney General insists was given by the court. Charge 9 was practically the same as other charges refused to defendant, it properly states the law, and if said charge had been given, as contended by the Attorney General, it would probably have been conclusive of the question under consideration. But charge 9 was refused and not given by the trial court, and this clearly appears in this record. Its refusal was also error.
Another insistence of error, not considered heretofore, is the court erred in admitting evidence of foot prints on the wall of the house where the offense is said to have been committed, as no effort was made, nor attempt to show, any identity of the tracks, or similarity with the tracks of either of these defendants. Neither was there any effort to show who made the foot prints on the wall, nor when the same were made, and it is further argued in this connection, from aught appearing, these foot prints may have been made there weeks before the time of the alleged offense. The exceptions reserved in this connection were well taken. Moore v. State, 4 Ala. App. 65,59 So. 189; Coulliette v. State, 22 Ala. App. 649,119 So. 511. The two cases cited hold, it was error to admit testimony of foot prints without some proof of identification. As here offered, we are of the opinion that said testimony was irrelevant, inadmissible and immaterial.
There are two remaining questions to be here considered: (1) We are urgently requested to place the trial court in error for refusing to defendants the general affirmative charge directing a verdict in their behalf because of the insufficiency of the evidence to support a conviction. It is true the conviction of the two defendants was had upon the testimony of the alleged injured party. Her testimony, notwithstanding its unusual purport, and manifest improbabilities, was before the jury, and the court below was without authority to hold there was no testimony before the jury as to the guilt of the accused parties. (2) The next question is the action of the court in overruling and denying defendants' motion for a new trial. As to this, we are firm in the opinion that reversible error prevailed, and that the exception duly reserved to this action of the court was well taken. (1) For the rulings of the court hereinabove discussed and held to be error. (2) On account of the precipitate haste in forcing the defendants to trial in connection with which it was made known to the court, that the eminent firm of attorneys, defending these two defendants, in their place as officers of the court, made and presented to the court the following uncontroverted motion for a continuance:
"Comes the defendant, separately, severally and jointly, and moves the Court to continue each of their cases, until the next term or session of this Court, and as grounds of their motion, say:
"1. For that the defendants have not had the opportunity to properly prepare for their defense.
"2. For that the offense with which they were charged is alleged to have been committed on the 27th day of July, 1941, and since that date, they have been confined in jail, without any opportunity on their part to prepare for their trial.
"3. For that the Grand Jury of said County was empaneled on the 4th day of August, 1941, and the indictment against them was returned on this same day, and they were arraigned on this same day and *Page 113 were required to plead thereto on the same day, without their having had an opportunity to consult counsel their attorneys regarding their defense, their trial on such arraignment being set for August 13, 1941.
"4. That at their arraignment as aforesaid, defendants made arrangements with the firm of Reed and Reed, Attorneys, to defend them on their trial, but that their said attorneys were then engaged in the trial of cases in this Court continuously until Friday Night, the 8th day of August, 1941, and had no opportunity to properly prepare for trial on this date.
"5. That the attorneys employed by the defendants devoted the whole of Saturday, August 9, 1941, and of Sunday, August 10, 1941, in an effort to prepare for the defense of defendants, but their attorneys were required to return to the trial of cases in this Court on Monday August 11, 1941, where they were constantly engaged in the trial of cases until the adjournment of Court on Tuesday evening, August 12, 1941, and during this time, had no opportunity to prepare for the defense of these defendants.
"6. That after the arrest, confinement, and indictment of the defendants, that many rumors, mis-statements and extravagant statements were circulated throughout the entire County by which much excitement and prejudice was engendered against the defendants, the effect of which at this time will deprive the defendants of a fair and an impartial trial.
"7. That if such excitement and prejudice continues until the next session of this Court and is not by that time diminished, defendants will then probably demand a change of venue for their trial. Defendants, however, believe that if their trials at this time are continued, that it will not be necessary to seek a change of venue."
In support of the foregoing motion, the defendants, in addition to the direct and uncontroverted statements of counsel, offered the following:
"Defendants offered in support of the foregoing motion for a continuance numerous affidavits of citizens from all parts of the County, and among such affidavits of citizens from all parts of the County, and among such affidavits were those of T.R. Snead, Judge of Probate, G.D. Broom, County Superintendent of Education, Clyde H. West, Post Master, Centre, Alabama, J. Oleus Jordan, President, Farmers Merchants Bank, Centre, Alabama, Glen Williamson, President Cherokee County Bank, Centre, Alabama, R.P. Snead, an Ex-Sheriff of said Cherokee County, M.H. Copeland, a member of the County Board of Education, and numerous others. Such affidavits so offered in support of their Motion for a continuance being in words and figures as follows:
"State of Alabama
"Cherokee County
"Before me, the undersigned authority in and for said County and State, personally appeared T.R. Snead who being known to me, and after first being duly sworn, according to law, deposes and says:
"I reside at Centre, Alabama in Beat No. 6, in Cherokee County, Alabama. I have heard the offense discussed in my community, of which Fletcher Clayton and Curtis Daniel are charged, and I have heard many different and wild and unreasonable statements made regarding the same. In some instances it has been stated that the victim was lacerated and torn, necessitating treatment by physicians, in other instances, it has been reported that the victim was caused to abort as a result of the act with which said Clayton and Daniel are charged, and in other instances that the victim contracted some venereal disease as a result of this charge.
"This entire matter has been discussed in an extraordinary and unusual manner, and from such, there appears to be considerable excitement and prejudice prevailing against the said defendants, and as a result of such excitement and prejudice, it is not probable that the defendants can, at this time, secure a fair and an impartial trial.
"T.R. Snead
"Sworn to and subscribed to before me on this the 12 day of August, 1941.
"F.H. Norton
"A Notary Public, Cherokee County, Alabama."
The trial itself, refuted in full the wild, unfounded highly prejudicial and inflammatory rumors, above set out; and as to the condition of the alleged injured party, the record discloses that a short time after the alleged commission of the offense, State witness Dr. W.J. Campbell (whose qualifications as a physician was admitted) testified, among other things of like import: "On Sunday the 27th of last July, I went to the home of Whitney Wright, beyond Cedar Bluff, I got there about 9:00 o'clock *Page 114 I suppose, I am not positive about the time, I saw Alice Wright, I made an examination of her person on that occasion. There wasn't any bruises or abrasions of any kind except a small red area about the middle of the back about an inch or an inch and a half long, a little redness there, there were not any scratches. * * * * I examined this lady's genital organs, I found nothing out of the ordinary. * * * * When I got there, she was in the room with a broom in her hand, I got the impression she was cleaning up house. She did not appear to be unduly nervous or excited, I examined her heart action and her pulse, her pulse was in the normal limit. Her respiration was apparently normal. I didn't count it, I observed nothing out of the ordinary with reference to her nervous condition. She was not excited, more than you would expect of a woman subjecting herself to a routine examination."
The trial court, in its action on the motion for a new trial, should have taken in consideration the fact that no outcry, commotion or other confusion occurred, or was had at the time the offense was said to have been committed. Also the fact that the house, in which it was claimed the acts occurred, was in close proximity to the highway, where the record shows numerous people were passing to and fro at the very time. The record further shows that immediately after it is alleged the offense was committed one Cecil Steele testified: "That he saw the defendants as he approached this house, saw them get into their automobile and drive away, that he was about 100 yards away when the defendants drove into the highway, and that he passed on in front of the house, and had a conversation with the prosecutrix, who said nothing to him at all about having been mistreated. This man was a close relative of the prosecutrix, or of her husband, and when the prosecutrix was asked why she did not tell Cecil Steele of this occurrence, her nonchalant answer was: 'I didn't think it was any of his business.' "
There are other facts and circumstances disclosed by this record which convince this court that the two defendants were not accorded the fair and impartial trial to which they were entitled, and in reversing and remanding this case we cannot see that the State would suffer by another trial of these defendants, who may receive at the hands of the court and jury the fair and impartial trial to which they are entitled. The court erred to a reversal in overruling the motion for a new trial under the facts of this case.
Reversed and remanded.