When a statement, incriminating in character, is made in the presence and hearing of an accused who understands the statement, and the statement is not denied, contradicted, or objected to by him although he has full liberty to do so, both the statement and the fact of accused's failure to deny it are admissible on a criminal trial as evidence of accused's acquiescence of the statement, although the statement so made is objectionable as hearsay. Lloyd v. State, 39 Ala. App. 595, 105 So.2d 709; Muse v. State, 29 Ala. App. 271, 196 So. 148; Moore v. State, 261 Ala. 578, 75 So.2d 135; Scott v. State, 249 Ala. 304, 30 So.2d 689; Clark v. State, 240 Ala. 65, 197 So. 23; Flandell v. State, 31 Ala. App. 520, 19 So.2d 401; Id., 246 Ala. 122, 19 So.2d 404. Castration is included in the statute of mayhem. Mabry v. State, 40 Ala. App. 129, 110 So.2d 250; McCullough v. State, 40 Ala. App. 309, 113 So.2d 905; Code 1940, Tit. 14, ยง 359. CATES, Judge.
We have not previously addressed this issue, although there is ample authority from other jurisdictions indicating that such requests are addressed to the discretion of the trial judge. Moore v. Illinois, 434 U.S. 220, 231, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); United States v. Brown, 699 F.2d 585, 593-594 (2nd Cir. 1983); Allen v. Rhay, 431 F.2d 1160, 1165 (9th Cir. 1970); United States v. Ravich, 421 F.2d 1196, 1202 (2nd Cir. 1970); Gissendanner v. State, 570 So.2d 421, 422 (Fla. App. 1 Dist. 1990); Foster v. State, 156 Ga. App. 672, 275 S.E.2d 745, 748 (1981) (Quillian, P.J., concurring); Ward v. State, 474 S.W.2d 471, 475 (Tex. 1971); McCullough v. State, 40 Ala. App. 309, 113 So.2d 905, 907 (1959). In accordance with this authority, we hold that where a defendant is to be identified at trial, and he requests that he be seated among other people in the courtroom, the trial judge should exercise broad discretion in determining whether the request should be granted.
In State v. Kupis, 37 Del. 27, 29 (Ct. of Oyer Terminer 1935), the defendant's request to sit with counsel rather than in the prisoner's dock was said to be "contrary to the well settled practice in this state." See also McCullough v. State, 40 Ala. App. 309, 312-313 n. 1, cert. denied, 269 Ala. 698 (1959), and cases cited; Matthews v. State, 77 Tenn. 128, 130-131 (1882); Annots., 5 A.L.R.3d 1360, 1389-1390 (1966), 23 A.L.R. 1382, 1391-1393 (1923). In Commonwealth v. Boyd, 246 Pa. 529, 534 (1914), the court said that the defendant had a right to sit with counsel upon request, notwithstanding the general custom of placing the accused in the dock to secure an orderly trial.
We were not there concerned with the right of a defendant in a state court to require the State prosecutor to deliver statements, articles or information in his possession to the defendant for use in the preparation of his defense. See Mabry v. State, 40 Ala. App. 129, 110 So.2d 250, petition for cert. dismissed, 268 Ala. 660, 110 So.2d 260; McCullough v. State, 40 Ala. App. 309, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912. The "Jencks decision" to which reference was made by counsel is, no doubt, the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1013, 1 L.Ed.2d 1103, decided by the Supreme Court of the United States on June 3, 1957, wherein it was held that the defense in a criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses.
MERRILL, Justice. Petition of Grover McCullough for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in McCullough v. State, 113 So.2d 905. Writ denied.
McCullough v. State, 40 Ala.App. 309, 314, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959) (request that previously convicted and sentenced codefendant be called as court's witness because he 'would be a reluctant witness' addressed to trial judge's sound discretion). See also Anderton v. State, 390 So.2d 1083, 1086-87 (Ala.Cr.App.), cert. denied, Ex parte Anderton, 390 So.2d 1087 (Ala. 1980)."
p with the appellant either casually, socially, or otherwise" and the record did not reflect "any animosity or ill feelings between the witness and the appellant" and did "not indicate, other than through the statements of appellant's attorney, that the witness was testifying differently from that which the appellant expected"); Lawrence v. State, 57 Ala. App. 639, 642, 331 So.2d 284 (1976) (following and stating general rule that "while it seems that it is within the discretion of a trial judge to honor a request by the defendant that a person be called as the court's witness, attempts to predicate error on a refusal by the trial court to grant such a request have been uniformly unsuccessful"); Helton v. State, 55 Ala. App. 428, 435, 316 So.2d 355 (1975) (no error in refusal to grant defense request to call witness as court's own witness where defense did not establish through voir dire examination of witness that witness was adverse, hostile, or would make contradictory statements); McCullough v. State, 40 Ala. App. 309, 314, 113 So.2d 905, cert. denied, 269 Ala. 598, 113 So.2d 912 (1959) (request that previously convicted and sentenced codefendant be called as court's witness because he "would be a reluctant witness" addressed to trial judge's sound discretion). See also Anderton v. State, 390 So.2d 1083, 1086-87 (Ala.Cr.App.), cert. denied, Ex parte Anderton, 390 So.2d 1087 (Ala. 1980).
"It is within the sound discretion of a trial judge, in the interest of truth and justice, to call to the stand and examine, or permit to be examined by both parties, any witness who may be able to shed light upon the issues, the court being careful to preserve an attitude of impartiality." Further, in McCullough v. State, 40 Ala. App. 309, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959), a request by the State to have the court call an apparently reluctant witness was held to be a matter addressed to the sound discretion of the trial court. Lawrence v. State, 57 Ala. App. 639, 331 So.2d 284 (1976).
This is a matter within the discretion of the trial judge. Tucker v. State, 398 So.2d 417, 419 (Ala.Cr.App. 1981); McCullough v. State, 40 Ala. App. 309, 312-13, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959). In-court identifications of an accused are not rendered improper by the fact that the accused is the only member of his race present in the courtroom.
Appellant next asserts that the trial court committed error in denying his motion made in open court just prior to trial that he not be required to sit at counsel table, but on the contrary be permitted to sit elsewhere within the courtroom, because his presence at counsel table would aid the state's witnesses in his identification at trial. This precise issue was decided by McCullough v. State, 40 Ala. App. 309, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959). In McCullough, Judge Cates quoted from 23 C.J.S. Criminal Law ยง 976, and then offered the comment shown following the quote below: