influence rule in Alabama

1991The class action that became Brown I [1] and Brown II [2] on earlier appeals, and now becomes Brown III, was an outgrowth of this Court's decision in Ex parte Dison, 469 So.2d 662 (Ala.1984), which reversed a defendant's conviction for driving under the influence in violation of Code 1975, § 32-5A-191, because the Uniform Traffic Ticket and Complaint ("UTTC") issued to the defendant had not been verified before a judicial officer and the defendant had raised that issue at the time of trial.

1991The class action that became Brown I 1 and Brown II 2 on earlier appeals, and now becomes Brown III , was an outgrowth of this Court's decision in Ex parte Dison , 469 So.2d 662 (Ala. 1984), which reversed a defendant's conviction for driving under the influence in violation of Code 1975, § 32-5A-191 , because the Uniform Traffic Ticket and Complaint ("UTTC") issued to the defendant had not been verified before a judicial officer and the defendant had raised that issue at the time of trial.

1954Overruled. “ ‘Mr. Ware: We reserve it. j|C * * * * ‡ “‘Mr. Ware: Object to the argument of the solicitor that if the door is closed on him, they might not open the second door, if this man is acquitted, they might not get somebody else. “ ‘The Court: Overruled. “ ‘Mr. Ware: We reserve it. ****** “‘Mr. Ware: We again except to the argument of the solicitor in which, “I am praying with you that you won’t close the door in this case,” indicating that they might not be able to convict somebody else if he were acquitted. “ ‘The Court: Overruled. “ ‘Mr. Ware: We reserve it.’ “The judges of this cour

1954Overruled. “ ‘Mr. Ware: We reserve it. j|C * * * * ‡ “‘Mr. Ware: Object to the argument of the solicitor that if the door is closed on him, they might not open the second door, if this man is acquitted, they might not get somebody else. “ ‘The Court: Overruled. “ ‘Mr. Ware: We reserve it. ****** “‘Mr. Ware: We again except to the argument of the solicitor in which, “I am praying with you that you won’t close the door in this case,” indicating that they might not be able to convict somebody else if he were acquitted. “ ‘The Court: Overruled. “ ‘Mr. Ware: We reserve it.’ “The judges of this cour

1937It is believed that this distinction is recognized in Cook v. Castleberry, 233 Ala. 650 , 173 So. 1, 4 , wherein it is observed : “One of our earliest cases on that subject is Blackwell’s Adm’r v. Blackwell’s Distributees, 33 Ala. 57 , 70 Am.Dec. 556.

1866The case of Blackwell’s Adm’r v. Blackwell’s Distributees, ( 33 Ala. 57 ,) was excepted from the influence of this presumption, on account of the peculiar facts and circumstances of that case.

1849Elmes v. Sutherland, 7 Ala. Rep. 262; 4 ib. 374; Nelson, et al. v. Dunn, 15 Ala. Rep. 501 .

1847His answer to this point of the case is responsive to the bill which calls for a discovery as to this matter, and brings him within the influence of the principle alluded to in Elmes v. Sutherland, 7 Ala. Rep. 262 , and settled in Hodge v. Wyatt, 10 Ib., 271. 3.

1998Id.

1982There is no room for the influence of passion, prejudice or other arbitrary factor and it is your solemn duty to avoid the influence of such factors." (R. 717-718) Appellant apparently contends, as did the Florida petitioner in Ford v. Strickland , 676 F.2d 434 (11th Cir. 1982) that the crime of capital felony in Alabama includes the element of mitigating circumstances not outweighing aggravating circumstances, which as an element of the substantive crime, must be proved beyond a reasonable doubt, as required by In re Winship , 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 *Page 1235 (1970).

1982There is no room for the influence of passion, prejudice or other arbitrary factor and it is your solemn duty to avoid the influence of such factors." (R. 717-718) Appellant apparently contends, as did the Florida petitioner in Ford v. Strickland , 676 F.2d 434 (11th Cir. 1982) that the crime of capital felony in Alabama includes the element of mitigating circumstances not outweighing aggravating circumstances, which as an element of the substantive crime, must be proved beyond a reasonable doubt, as required by In re Winship , 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 *Page 1235 (1970).

1982There is no room for the influence of passion, prejudice or other arbitrary factor and it is your solemn duty to avoid the influence of such factors." (R. 717-718) Appellant apparently contends, as did the Florida petitioner in Ford v. Strickland , 676 F.2d 434 (11th Cir. 1982) that the crime of capital felony in Alabama includes the element of mitigating circumstances not outweighing aggravating circumstances, which as an element of the substantive crime, must be proved beyond a reasonable doubt, as required by In re Winship , 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 *Page 1235 (1970).

1973Childress v. State, 86 Ala. 77 , 5 So. 775 ; Cross, supra; Finley v. State, 28 Ala.App. 151 , 181 So. 123 , cert. denied 236 Ala. 161 , 181 So. 125 ; Payne v. State, 261 Ala. 397 , 74 So.2d 630 .

1973Childress v. State, 86 Ala. 77 , 5 So. 775 ; Cross, supra; Finley v. State, 28 Ala.App. 151 , 181 So. 123 , cert. denied 236 Ala. 161 , 181 So. 125 ; Payne v. State, 261 Ala. 397 , 74 So.2d 630 .

1973Childress v. State, 86 Ala. 77 , 5 So. 775 ; Cross, supra; Finley v. State, 28 Ala.App. 151 , 181 So. 123 , cert. denied 236 Ala. 161 , 181 So. 125 ; Payne v. State, 261 Ala. 397 , 74 So.2d 630 .

1973Childress v. State, 86 Ala. 77 , 5 So. 775 ; Cross, supra; Finley v. State, 28 Ala.App. 151 , 181 So. 123 , cert. denied 236 Ala. 161 , 181 So. 125 ; Payne v. State, 261 Ala. 397 , 74 So.2d 630 .

1973Childress v. State, 86 Ala. 77 , 5 So. 775 ; Cross, supra; Finley v. State, 28 Ala.App. 151 , 181 So. 123 , cert. denied 236 Ala. 161 , 181 So. 125 ; Payne v. State, 261 Ala. 397 , 74 So.2d 630 .

1973Childress v. State, 86 Ala. 77 , 5 So. 775 ; Cross, supra; Finley v. State, 28 Ala.App. 151 , 181 So. 123 , cert. denied 236 Ala. 161 , 181 So. 125 ; Payne v. State, 261 Ala. 397 , 74 So.2d 630 .

1973Childress v. State, 86 Ala. 77 , 5 So. 775 ; Cross, supra; Finley v. State, 28 Ala.App. 151 , 181 So. 123 , cert. denied 236 Ala. 161 , 181 So. 125 ; Payne v. State, 261 Ala. 397 , 74 So.2d 630 .

1957Jackson v. State, 226 Ala. 72, 145 So. 656 : The solicitor asked Mr. Howell, “Prior to Billie Duck making the statement to you, did you make any threats or promises or coerce him in any way?” The answer was, “No.” “Did he make the statement voluntarily and of his own accord?” To which the witness replied, “He said he shot her and he guessed he would burn for it.” “* * * "Were you having a conversation with him at that time or did he voluntarily make the statement?” “Voluntary statement.” “You did not ask him?” “No.” “And it was not in response to any question?” “No.” The foregoing failed up to

1957Jackson v. State, 226 Ala. 72, 145 So. 656 : The solicitor asked Mr. Howell, “Prior to Billie Duck making the statement to you, did you make any threats or promises or coerce him in any way?” The answer was, “No.” “Did he make the statement voluntarily and of his own accord?” To which the witness replied, “He said he shot her and he guessed he would burn for it.” “* * * "Were you having a conversation with him at that time or did he voluntarily make the statement?” “Voluntary statement.” “You did not ask him?” “No.” “And it was not in response to any question?” “No.” The foregoing failed up to

1956This rule is familiarly expressed in the maxim that writings are to be upheld when possible, ‘ut res magis valeat quam pereat.’ Under the influence of this principle it is universally held that a liberal construction should be placed upon the language of written instruments when by so doing they may be upheld, and when otherwise the plain intention of the parties will be defeated.” Dinkins v. Latham, 154 Ala. 90 , 45 So. 60, 63 .

1956This rule is familiarly expressed in the maxim that writings are to be upheld when possible, ‘ut res magis valeat quam pereat.’ Under the influence of this principle it is universally held that a liberal construction should be placed upon the language of written instruments when by so doing they may be upheld, and when otherwise the plain intention of the parties will be defeated.” Dinkins v. Latham, 154 Ala. 90 , 45 So. 60, 63 .

1956And in Nettles v. Lichtman, 228 Ala. 52 , 152 So. 450, 452 , 91 A.L.R. 1455 , this court said: “And it is the well-settled rule that, where the language of a deed is ambiguous, the intention of the parties may be ascertained by a consideration of the surrounding circumstances existing at the time of its execution, and for this purpose the court will place itself as nearly as possible in the position of the parties when the instrument was executed. 18 Corpus Juris, p. 260.

1956And in Nettles v. Lichtman, 228 Ala. 52 , 152 So. 450, 452 , 91 A.L.R. 1455 , this court said: “And it is the well-settled rule that, where the language of a deed is ambiguous, the intention of the parties may be ascertained by a consideration of the surrounding circumstances existing at the time of its execution, and for this purpose the court will place itself as nearly as possible in the position of the parties when the instrument was executed. 18 Corpus Juris, p. 260.

1954In the opinion of our Court of Appeals in the case of Williams v. State, 26 Ala.App. 555, 556 , 163 So. 463 , in a somewhat analogous situation appears the following: “There is no law requiring the names of witnesses appearing before the grand jury to be indorsed on indictments returned, and when such endorsements are made there is no presumption that such witnesses appeared and testified, and the solicitor should not have referred to the fact that the names appeared on the indictment; but the fact as to who appeared before the grand jury in this case is so foreign to any issue involved, that

1954In the opinion of our Court of Appeals in the case of Williams v. State, 26 Ala.App. 555, 556 , 163 So. 463 , in a somewhat analogous situation appears the following: “There is no law requiring the names of witnesses appearing before the grand jury to be indorsed on indictments returned, and when such endorsements are made there is no presumption that such witnesses appeared and testified, and the solicitor should not have referred to the fact that the names appeared on the indictment; but the fact as to who appeared before the grand jury in this case is so foreign to any issue involved, that

1952For other cases defining proxifnate cause see Chambers v. Cox, 222 Ala. 1 , 130 So. *624 416; Braden v. St Louis-San Francisco R.

1951Clark-Pratt Cotton Mills v. Bailey, 201 Ala. 333 , 77 So. 995 ; W.

1951Clark-Pratt Cotton Mills v. Bailey, 201 Ala. 333 , 77 So. 995 ; W.

1948The review, therefore, comes under the influence of the rule which provides: “A *123 general objection of this character cannot he sustained, unless the evidence is manifestly illegal and irrelevant, and apparently incapable of being rendered admissible in connection with other evidence.” Sanders v. Knox, 57 Ala. 80 .

1948Brown & Sons Lumber Co. v. Rattray, 238 Ala. 405 , 192 So. 851 , 129 A.L.R. 526 , note, page 534; 37 C.J.S., Frauds, Statute of, § 42, note 68.

1948Brown & Sons Lumber Co. v. Rattray, 238 Ala. 405 , 192 So. 851 , 129 A.L.R. 526 , note, page 534; 37 C.J.S., Frauds, Statute of, § 42, note 68.

1946Lowe v. State, 86 Ala. 47 , 5 So. 435 ; Jones v. State, 156 Ala. 175 , 47 So. 100 .

1946Lowe v. State, 86 Ala. 47 , 5 So. 435 ; Jones v. State, 156 Ala. 175 , 47 So. 100 .

1946Lowe v. State, 86 Ala. 47 , 5 So. 435 ; Jones v. State, 156 Ala. 175 , 47 So. 100 .

1945In the absence of the predicate the statement of deceased was hearsay (Spicer v. State, 188 Ala. 9 , 65 So. 972 ), and is not within the influence of the exception to the hearsay rule laid down in Shell v. State, 88 Ala. 14 , 7 So. 40 ; Gregory v. State, 140 Ala. 16 , 37 So. 259 , and other cases, which permit the introduction of contradictory statements made by the deceased (though not made under a sense of impending-death), to impeach a dying declaration previously offered in evidence by the state.

1945In the absence of the predicate the statement of deceased was hearsay (Spicer v. State, 188 Ala. 9 , 65 So. 972 ), and is not within the influence of the exception to the hearsay rule laid down in Shell v. State, 88 Ala. 14 , 7 So. 40 ; Gregory v. State, 140 Ala. 16 , 37 So. 259 , and other cases, which permit the introduction of contradictory statements made by the deceased (though not made under a sense of impending-death), to impeach a dying declaration previously offered in evidence by the state.

1945In the absence of the predicate the statement of deceased was hearsay (Spicer v. State, 188 Ala. 9 , 65 So. 972 ), and is not within the influence of the exception to the hearsay rule laid down in Shell v. State, 88 Ala. 14 , 7 So. 40 ; Gregory v. State, 140 Ala. 16 , 37 So. 259 , and other cases, which permit the introduction of contradictory statements made by the deceased (though not made under a sense of impending-death), to impeach a dying declaration previously offered in evidence by the state.

1945In the absence of the predicate the statement of deceased was hearsay (Spicer v. State, 188 Ala. 9 , 65 So. 972 ), and is not within the influence of the exception to the hearsay rule laid down in Shell v. State, 88 Ala. 14 , 7 So. 40 ; Gregory v. State, 140 Ala. 16 , 37 So. 259 , and other cases, which permit the introduction of contradictory statements made by the deceased (though not made under a sense of impending-death), to impeach a dying declaration previously offered in evidence by the state.

1940Co. v. Moog, 81 Ala. 335 , 1 So. 108 , which is in substance: Even where the jury has reported its inability to agree upon a verdict, the court may, in the exercise of a sound discretion, order further consideration by the jury, and (though the court did not even go that far, in this case) avoiding any appearance of duress or coercion, advise the jury of the desirability that a verdict be made, that, if practicable, a conclusion of the litigation may be attained, and that they cultivate a spirit of harmony.