"[A]n error that might have been prejudicial in a close case does not require reversal when the evidence of appellant's guilt is strong."
How later courts described this case
- "[A]n error that might have been prejudicial in a close case does not require reversal when the evidence of appellant's guilt is strong."
Written by the judges who cited it.
The opinion
CATES, Presiding Judge
(dissenting).
I must respectfully dissent from the holding that the introduction in evidence over objection of the defendant’s earlier photograph was harmless error under the wording of Supreme Court Rule 45.
This photograph showed the defendant long before trial; it showed him in a facially hirsute condition. To me, when the prosecution injected this photograph there was, in the words of Supreme Court Rule 45, an error which “probably injuriously affected substantial rights of the” defendant.
Appeals to racial prejudice, especially where there is no evidence that such prejudice motivated an act relevant to the of-fence is uniformly condemned by our au *399 thorities. McLemore v. International Union, 264 Ala. 538 , 88 So.2d 170 . In Fonville v. State, 91 Ala. 39 , 8 So. 688 , we find the elder Mr. Justice Coleman writing:
“It is the law of this State, that the admission of illegal or irrelevant evidence against the objection of a defendant, on trial for a criminal offense is a reversible error, unless it affirmatively appears that no injury resulted therefrom. Maxwell v. State, 89 Ala. 150, 164 , 7 So. 824 ; Marks v. State, 87 Ala. 99 , 6 So. 377 ; Vaughan v. State, 83 Ala. 55 , 3 So. 530 ; Williams v. State, 83 Ala. 16 , 3 So. 616 ; Mitchell v. State, 60 Ala. 26 . To inquire and prove that the absent witnesses were negroes, certainly was irrelevant, unless the court judicially knew the color of the witnesses affected their credibility. If it was judicially known that, as a race, the witnesses were prima, facie unworthy of belief, the question was both worthy and legal. We can not judicially affirm of any race of people, of whatever color, as St. Paul did of the Cretians, that they were ‘always liars.’ Under the principle above declared, the objection to such a question, properly made and reserved, should be sustained.”
The rule of relevance is more strictly applied in criminal than in civil cases. Browning v. State, 31 Ala.App. 137 , 13 So.2d 54 ; Pressley v. State, 18 Ala.App. 40 , 88 So. 291 .
Recently, our late beloved Presiding Judge in Chamberlain v. State, 46 Ala.App. 642 , 247 So.2d 683 , wrote of a similar derogatory photograph as follows:
“We fail to see the materiality of the lineup photograph. The testimony concerning the lineup was introduced by the state and was not disputed. It is clear from the testimony of the victim and her husband that their in-court identification of defendant did not depend upon their viewing him in the lineup but was based upon their observation of him in the store at the time of the alleged robbery. The photograph had no tendency to prove or disprove any material fact in issue. In the event of another trial it is our opinion this photograph should not be admitted in evidence in the absence of a predicate showing relevancy. Cf. Bates v. State, 40 Ala.App. 549 , 117 So.2d 258 .”
(Italics added).
In conclusion, I would have found myself in agreement with the majority of the Court had our Supreme Court Rule 45 been phrased so that consideration would be given as though the evidence (hypothetically excluding the offensive photograph) were submitted to any other reasonable jury properly instructed upon the applicable law. I think that this Court should conclude that such a jury would inevitably give the same verdict as the one in this case.
In my opinion no other reasonable jury, without the photograph before it, would have brought in a different verdict. In other words, I think Supreme Court Rule 45 is too lenient towards criminals. However, it is not my rule; but as a judge I am bound to follow it. I think it has to be applied here. Therefore, in this case I must respectfully dissent.