Opinion
6 Div. 622.
January 14, 1930.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Lemmie Love was convicted of having carnal knowledge of a girl over 12 and under 16 years of age, and he appeals. Reversed and remanded.
The evidence for the state tended to show that the girl — Irene Trice — was born September 16, 1912, and that the offense was committed in the early part of the year 1928, about January or February. Both the girl and her mother testified that the girl was born September 16, 1912. Each, as a witness, on cross-examination denied that she had given the age to F. C. Daniel, a census taker.
The bill of exceptions shows the following:
"My name is Fisher C. Daniel, or F. C. Daniel; I am sometimes called Fisher Daniel. I took the census in the Baltimore school district. (Witness was here handed a book containing a school census.) I find Irene Trice's name; I took this and made this record myself. There was some lady who gave me the information, but I could not say whether it was Irene Trice or not. I did not see her mother, that I remember of, but I saw a girl. I was given her age by the lady who was at the house, whoever she was. I do not know whether this girl was there present when the age was given or not. (The witness, Irene Trice, was here brought into the courtroom for identification.) I could not say positively whether that is the girl or not; I did not pay any particular attention to the features of whoever it was that gave me this information; I could not say whether that lady present at the time the age was given or not. I supposed it was one of Mr. Trice's daughters, that I thought I was obtaining the information from; it was at Mr. Trice's home, on the porch, where I got the information.
Counsel for defendant asked the witness the question: "Q. What information did you get there and write down?"
Counsel for the state objected to the question, because the record was the best evidence, which objection was sustained, to which action of the court defendant duly excepted.
Counsel for defendant here offered to introduce the record in evidence, to which counsel for the state objected, because it was irrelevant, incompetent, and immaterial, and because the record had not been properly identified as being made, because it called for hearsay, and because the evidence showed that the record was made purely through hearsay, which objection was sustained, to which action of the court the defendant duly excepted.
"The witness [continuing]: I was at that time taking the census for the schools, and took them down correctly as they were given to me. I took this information there at the Trice home, but I do not remember whether Irene Trice was present or not. She might have been there; I don't remember for sure about that. I saw some three or four children there on the porch; that was at the place where she lived, at her father's and mother's home."
Counsel for defendant here offered in evidence the portion of the record of census relating to the age of Irene Trice, which record was in words and figures as follows:
"BALTIMORE BALTIMORE 2
Name of School Name of District District No. or City
Name of Parents or Distance, if Post Office Guardians in Country (if in Country)
Trice, Bert 1 1/4 mi. Cordova, Rt. 2. Names of Children Date of Birth Age From 6 to 20 Month Year Sept. 30 next years old, inclusive
Irene Trice Sept. 1911 17 Sex Read and Write B G Yes No
G Yes
Counsel for the state objected to the introduction of said record in evidence, because it was irrelevant, incompetent, and immaterial, and because the record had not been properly identified as being made, because it called for hearsay, and because the evidence showed that the record was made purely through hearsay, which objection was sustained, to which action of the court the defendant duly excepted.
James J. Ray and J. M. Pennington, both of Jasper, for appellant.
Where a duty is imposed by law upon an official, and a record showing a discharge of such duty is preserved, and the record is kept in custody consistent with the creation of the office, the presumption is that the record is a correct representation of the official act. Wiley v. Wilhite, 201 Ala. 638, 79 So. 110; 16 Cyc. 1076; Jones on Evidence (2d Ed.) § 508; Hovater v. Franklin Co., 217 Ala. 439, 116 So. 526. Courts take judicial knowledge of the federal census in matters in which such reports of the census become evidentiary. Reynolds v. Collier, 204 Ala. 38, 85 So. 465; Jackson L. Co. v. Trammell, 199 Ala. 536; 74 So. 469. The enumeration being an official act and sworn to by the officer, under the law is prima facie evidence of the correctness of such report, and same was admissible in evidence. Ala. School Code, §§ 121, 122; Code 1923, § 7681; Wiley v. Wilhite, supra; Jones on Evidence, supra. Refusal of defendant's requested charges was reversible error. Churchwell v. State, 117 Ala. 124, 23 So. 72; Leatherwood v. State, 17 Ala. App. 498, 85 So. 875; Clayton v. State, ante, p. 150, 123 So. 250.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Sections 79, 121, 122, and 167 of the Alabama School Code, a work prepared by Hon. Harwell G. Davis, adopted by the Legislature of Alabama, and promulgated as a part of the law of this state, by proclamation of the Governor, on October 1, 1927, provide for the taking of a biennial census of all children in this state between 6 and 21 years of age.
In section 79 it is provided that there be prepared "the forms and blanks to be employed in taking such census, and in compiling the reports thereon" from the county superintendent of education to the state superintendent of education.
In section 122 it is provided that the "report" of the "enumerators" employed in accordance with the terms of said section "shall be made under oath to the county superintendent of education," etc., and that such report shall be used at a later date by the county superintendent of education in making his "consolidated report to the state superintendent of education." Section 167.
It does not appear to us that section 7681 of the Code of 1923 is broad enough in its terms to cover and include such a "document" as the report of the enumerator, above, to the county superintendent of education. But the common law is in force in this state, where not abrogated by statute. Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So. 335, 24 L.R.A. (N.S.) 369, 136 Am. St. Rep. 74, 19 Ann. Cas. 937. And, independently of the Code section above referred to, the following language, while "quoted" in the opinion of the Supreme Court of our state, from which we take it, seems, nevertheless, to have the approval of the Supreme Court of Alabama: "In the United States somewhat greater latitude seems to have been allowed; and it has frequently been held that such entries are admissible if made in the course of official duty although not required to be made by law." Metropolitan Life Ins. Co. v. Parks, 210 Ala. 261, 97 So. 788, 789.
While the "record of census, relating to the age of Irene Trice, or the report of the census enumerator, referred to above, on the same subject, admitted to be "a record kept in the office of the county superintendent of education of Walker county," which was offered in evidence by the appellant, may not be, and we do not think it is, a "book or paper, or part thereof, required by law to be kept in the office, custody or control of any public officer," etc., described in Code 1923, § 7681, in such sort that by virtue of the terms of that statute a transcript of it "must be received in evidence in all courts" (and, if the transcript, of course, the original — Stevenson v. Moody, 85 Ala. 33, 4 So. 595), still, in line with what, we think, is the attitude of the Supreme Court of our state as indicated in the opinion in the case of Metropolitan Life Ins. Co. v. Parks, supra, we hold that the document offered in evidence was one "made in the course of official duty," and kept in the discharge of that duty, and that hence the trial court erred in excluding it from the evidence. See Wiley et al. v. Wilhite, 201 Ala. 638, 79 So. 110, and Ramage, Parks Co. v. Folmar, 219 Ala. 142, 121 So. 504. If its verity was questioned, as it could be, and was, the burden of impeaching it should have been placed upon the state — not that of upholding it on the defendant. And, whether impeached by the state or not, it was admissible in evidence for whatever it was worth in that regard.
Appellant requested the trial court to give the following written charge, to the jury:
20. "I charge you, gentlemen, as a matter of law, that if any of the testimony of the state's witnesses has been impeached, you may disregard such testimony entirely unless corroborated by other testimony not impeached."
This charge is bad in form. It is not the "impeaching of the testimony," but the "impeaching of the witness" giving the testimony, that was evidently in the mind of appellant's counsel when he drafted the charge. If he had put in the charge what we think he had in mind to put in it, but did not, then the cases of Churchwell v. State, 117 Ala. 124, 23 So. 72, Leatherwood v. State, 17 Ala. App. 498, 85 So. 875, Creel v. State (Ala.App.) 124 So. 507, and others he cites, would indeed have been authorities supporting the argument he makes that the refusal of the charge was error. On the other hand, the learned trial judge would doubtless have given the charge, had it been properly drawn.
Ante, p. 241.
For the error pointed out, the judgment is, reversed, and the cause remanded.
Reversed and remanded.