The Alabama Supreme Court : A Changing Constant

<v Narrator>Alabama Supreme Court. ?inaudible? Take 1. <v Speaker>[Justices speaking over one another] <v C.C. Torbert, Jr., Chief Justice>I don't believe there's that much apart, but there is a certain amount of formality if <v C.C. Torbert, Jr., Chief Justice>you want to call it that or standard procedure.

<v C.C. Torbert, Jr., Chief Justice>Judges in Alabama wear robes as they do <v C.C. Torbert, Jr., Chief Justice>in many other states. <v C.C. Torbert, Jr., Chief Justice>And the idea is not so much of a formality. <v C.C. Torbert, Jr., Chief Justice>It's a matter of symbolism that this is a serious matter, that we are dealing with <v C.C. Torbert, Jr., Chief Justice>a person's life, perhaps that person's property. <v C.C. Torbert, Jr., Chief Justice>And it needs to be taken in a very serious vein rather than a flippant vein. <v C.C. Torbert, Jr., Chief Justice>And all of these this formality or this standard procedure <v C.C. Torbert, Jr., Chief Justice>has been decided upon over many, many years so that it is orderly, <v C.C. Torbert, Jr., Chief Justice>so that there is not interruptions or interference in the procedure, so that <v C.C. Torbert, Jr., Chief Justice>the whole thrust you have to think about that case and those parties <v C.C. Torbert, Jr., Chief Justice>and what rights they are entitled to and what obligations they have. <v C.C. Torbert, Jr., Chief Justice>It's just a necessary part of the system. <v Announcer>Gimme your attention a moment, please.

<v Announcer>When I announce the court, I want all of you to rise and remain standing until <v Announcer>the court has been seated. <v Announcer>Ladies and gentlemen, the Supreme Court. <v Announcer>Supreme Court of Alabama is now in session. <v Announcer>Be seated. <v C.C. Torbert, Jr., Chief Justice>The Supreme Court is very pleased this morning to sit in <v C.C. Torbert, Jr., Chief Justice>oral argument at Auburn University. <v C.C. Torbert, Jr., Chief Justice>It's been the practice of this court for some years now to bring

<v C.C. Torbert, Jr., Chief Justice>court proceedings to the various cities and communities of this state. <v C.C. Torbert, Jr., Chief Justice>Many people think that courts are <v C.C. Torbert, Jr., Chief Justice>mysterious. <v C.C. Torbert, Jr., Chief Justice>And in the olden day, a court session <v C.C. Torbert, Jr., Chief Justice>was a rather widely publicized and well attended <v C.C. Torbert, Jr., Chief Justice>by the citizenry. In more modern times, courtrooms are smaller <v C.C. Torbert, Jr., Chief Justice>and fewer and fewer people actually go to court to watch the proceedings. <v C.C. Torbert, Jr., Chief Justice>The Supreme Court of Alabama in recent years had decided to <v C.C. Torbert, Jr., Chief Justice>hold its court around the state in certain areas <v C.C. Torbert, Jr., Chief Justice>rather than in the small courtroom in Montgomery. <v C.C. Torbert, Jr., Chief Justice>So we have been to Auburn, to Mobile, to <v C.C. Torbert, Jr., Chief Justice>Huntsville, to Tuscaloosa. <v C.C. Torbert, Jr., Chief Justice>and in a number of other cities and town. <v C.C. Torbert, Jr., Chief Justice>The idea is to bring the work of the court closer to the people

<v C.C. Torbert, Jr., Chief Justice>so that the citizens can see how court works and understand <v C.C. Torbert, Jr., Chief Justice>its function. <v C.C. Torbert, Jr., Chief Justice>I think it has been rather successful in terms of people attending <v C.C. Torbert, Jr., Chief Justice>these court sessions because we've had good attendance. <v C.C. Torbert, Jr., Chief Justice>I think it means a great deal for the average citizen to be able to come in <v C.C. Torbert, Jr., Chief Justice>and go to court when that citizen is not personally involved, but to see how the court <v C.C. Torbert, Jr., Chief Justice>works and see how arguments are made and how cases are decided. <v C.C. Torbert, Jr., Chief Justice>Now, the procedure is very simply this: the <v C.C. Torbert, Jr., Chief Justice>appealing party or the appellant, are on oral argument, then <v C.C. Torbert, Jr., Chief Justice>will speak first and by some ?inaudible? <v C.C. Torbert, Jr., Chief Justice>with the clerk of this court, a certain time has been <v C.C. Torbert, Jr., Chief Justice>set and signals of that time is given by the clerk. <v C.C. Torbert, Jr., Chief Justice>Then the appellee, or the other party, then will have his say <v C.C. Torbert, Jr., Chief Justice>on oral argument. And then lastly, the appellant closes.

<v C.C. Torbert, Jr., Chief Justice>In case you did not know the first person you saw here, <v C.C. Torbert, Jr., Chief Justice>Mr. Young, who announced the court <v C.C. Torbert, Jr., Chief Justice>martial of the Supreme Court. <v C.C. Torbert, Jr., Chief Justice>The clerk of the court who is seated to my left is Mr J. <v C.C. Torbert, Jr., Chief Justice>O. Sentayo. <v C.C. Torbert, Jr., Chief Justice>I will not take the time to introduce the members of the court since their names are <v C.C. Torbert, Jr., Chief Justice>displayed. But as you see, they are 9 members, and <v C.C. Torbert, Jr., Chief Justice>in these cases, all 9 members of the court sit <v C.C. Torbert, Jr., Chief Justice>and decide the cases in bank. <v C.C. Torbert, Jr., Chief Justice>Mr. Sentayo, call the first case. <v Clerk>Case number 2631 <v Clerk>ex-Party. Jerry Burkes petition for writ <v Clerk>of certiorari to the Court of Criminal Appeals.

<v Clerk>Read Jerry Burkes v the State of Alabama. <v Clerk>Honorable Larry Waites of Birmingham for the petition of Jerry Burkes. <v Clerk>Honorable John B. Rucker III, Assistant attorney general of Birmingham. <v Clerk>State of Alabama. <v Clerk>Mr. Waites. <v Larry Waites, Attorney>May it please the court I'm Larry Waites from Birmingham and represent the appellate <v Larry Waites, Attorney>petition in this case Jerry Burkes. <v Larry Waites, Attorney>This case comes before the Court of Appeals out of Marshall. <v Larry Waites, Attorney>When in June of 1975, Jerry Burkes was found guilty of the <v Larry Waites, Attorney>offense of assault intent to ravish, he was brought by indictment <v Larry Waites, Attorney>of rape, an offense allegedly happening in September

<v Larry Waites, Attorney>of 1974. <v Larry Waites, Attorney>He was indicted by the Marshall County grand jury for the charge of rape, was <v Larry Waites, Attorney>arraigned and entered a plea of not guilty on the charge of rape, was brought before the <v Larry Waites, Attorney>court on September 4 as I recall in 1975 on a charge of rape in <v Larry Waites, Attorney>which?inaudible? plea of not guilty.Entered a plea again ?inaudible? <v Larry Waites, Attorney>of rape. <v Larry Waites, Attorney>At the conclusion of testimony, the court charged <v Larry Waites, Attorney>that the jury could find the defense [guilty] of rape and fix his punishment <v Larry Waites, Attorney>at a minimum 10 years and in the penitentiray or in the alternative based on the theory <v Larry Waites, Attorney>of lesser included offenses that the court that the jury could find him guilty of <v Larry Waites, Attorney>the charge of assault, intent to ravish, which the jury did. <v Larry Waites, Attorney>And upon conclusion of the judgment, the court sentenced the defendent to 11 years <v Larry Waites, Attorney>in the penitentiary. And now the contention <v Larry Waites, Attorney>of the appellant in this particular case is that there is no <v Larry Waites, Attorney>such thing as the lesser included offense of assault, intent to ravish.

<v James Bloodworth, Associate Justice>Many people perhaps have a misconception of what we do <v James Bloodworth, Associate Justice>on the appellate bench of Alabama. This is the appellate bench. <v James Bloodworth, Associate Justice>The Supreme Court is the highest court in the state. <v James Bloodworth, Associate Justice>And beneath the Supreme Court, the appellate courts, the court of civil <v James Bloodworth, Associate Justice>appeals and the Court of Criminal Appeals. <v James Bloodworth, Associate Justice>We take on appeal cases, appeal from the court, below is <v James Bloodworth, Associate Justice>a trial court, usually a circuit court. <v James Bloodworth, Associate Justice>One of the parties is disappointed with the verdict of the jury. <v James Bloodworth, Associate Justice>If it's a criminal case, usually if a defendant gets ?inaudible? <v James Bloodworth, Associate Justice>he wants to appeal. If it's a civil case and say he has damages <v James Bloodworth, Associate Justice>assessed against them, they may take an appeal and they can appeal. <v James Bloodworth, Associate Justice>It goes to the civil appeals if the amount in controversy, <v James Bloodworth, Associate Justice>that is the amount of the verdict, or the amount sued for is [less than] $10,000 dollars, <v James Bloodworth, Associate Justice>it goes to the court of civil appeals. <v James Bloodworth, Associate Justice>If it's more than $10,000 dollars, it comes here.

<v James Bloodworth, Associate Justice>Now, there's some other technical differences in our jurisdiction, but basically that's <v James Bloodworth, Associate Justice>it. If it's a criminal case, it goes to the court of criminal appeals. <v James Bloodworth, Associate Justice>Every criminal case, including the death case. <v James Bloodworth, Associate Justice>Then in order to get to this court, they file what's called a writ of certiorari. <v James Bloodworth, Associate Justice>Now, that's a technical legal term. <v James Bloodworth, Associate Justice>But what it means is that a person can go to the court of civil appeals <v James Bloodworth, Associate Justice>or the court of civil appeal of criminal appeals and lose there and still <v James Bloodworth, Associate Justice>come to our court if they've got good grounds for it. <v James Bloodworth, Associate Justice>There's certain grounds they can come up here on. <v Hugh Maddox, Associate Justice>During the trial of either a criminal or a civil case before <v Hugh Maddox, Associate Justice>a jury many people have <v Hugh Maddox, Associate Justice>seen these trials on television and they see the lawyers say object in the <v Hugh Maddox, Associate Justice>trial judge either sustains the objection or overrules it. <v Hugh Maddox, Associate Justice>And that objection then is made the basis of a claim of error. <v Hugh Maddox, Associate Justice>In other words, if the jury finds against, say, the <v Hugh Maddox, Associate Justice>defendant in a criminal case and the trial judge overruled

<v Hugh Maddox, Associate Justice>the defendant lawyer's objection, ?inaudible? <v Hugh Maddox, Associate Justice>they have some evidence during the trial case. <v Hugh Maddox, Associate Justice>Well, then he will raise that on appeal and claim that the trial judge made a mistake, <v Hugh Maddox, Associate Justice>a legal mistake by introducing that evidence for allowing the other side the state <v Hugh Maddox, Associate Justice>to introduce the evidence into trial case. <v Hugh Maddox, Associate Justice>So, that becomes an error which is urged to the appellate <v Hugh Maddox, Associate Justice>court as guarantee and human right to a new trial, because <v Hugh Maddox, Associate Justice>that was prejudicial to it. The jury was allowed to hear this evidence, which was <v Hugh Maddox, Associate Justice>objectionable. And therefore, he asked what to reverse the case, reverse <v Hugh Maddox, Associate Justice>the trial judge for committing that error and grant him a new trial. <v Hugh Maddox, Associate Justice>So that's basically what the appellate court does, is review claimed error. <v Hugh Maddox, Associate Justice>They claim the parties are claiming that trial judge made a mistake, basically, <v Hugh Maddox, Associate Justice>and they are asking the appellate court to reverse it and send it back so they can get <v Hugh Maddox, Associate Justice>a new trial.

<v C.C. Torbert, Jr., Chief Justice>Both parties could be dissatisfied and then there would be a cross appeal, see? <v C.C. Torbert, Jr., Chief Justice>And with a cross appeal, then each side has some error <v C.C. Torbert, Jr., Chief Justice>and it crosses. In many cases, however, only one side, <v C.C. Torbert, Jr., Chief Justice>the losing side, so to speak, dissatisfied, and they bring an appeal. <v C.C. Torbert, Jr., Chief Justice>And that person is an appellant. <v C.C. Torbert, Jr., Chief Justice>And the person or party who wins the case is called the appellee. <v C.C. Torbert, Jr., Chief Justice>So the cases get here and in a time frame, all of these things <v C.C. Torbert, Jr., Chief Justice>are made in file and then it's set down for argument. <v C.C. Torbert, Jr., Chief Justice>And before the arguments are heard in the Supreme Court or elsewhere in the <v C.C. Torbert, Jr., Chief Justice>state, the case is assigned to <v C.C. Torbert, Jr., Chief Justice>a particular justice. Now no one knows <v C.C. Torbert, Jr., Chief Justice>and properly so to whom the case is decided. <v C.C. Torbert, Jr., Chief Justice>That justice gets the record and the briefs, and with the assistance of <v C.C. Torbert, Jr., Chief Justice>that justice's law clerk, a bench memorandum is prepared <v C.C. Torbert, Jr., Chief Justice>and [it's just] a short synopsis of what the judges,

<v C.C. Torbert, Jr., Chief Justice>the justices can anticipate as being raised when <v C.C. Torbert, Jr., Chief Justice>argument takes place. And everybody has those bench <v C.C. Torbert, Jr., Chief Justice>memorandums before the argument. <v C.C. Torbert, Jr., Chief Justice>Then on the day set, the parties come down by their attorneys <v C.C. Torbert, Jr., Chief Justice>and they are usually given 1 hour to argue each <v C.C. Torbert, Jr., Chief Justice>appeal case in Supreme Court. <v C.C. Torbert, Jr., Chief Justice>The appellant, or the party that lost the case and wants <v C.C. Torbert, Jr., Chief Justice>to appeal to this court is first. <v C.C. Torbert, Jr., Chief Justice>And then the appellee of the winning party argues second. <v C.C. Torbert, Jr., Chief Justice>Then, last, the appellate of the party who lost makes a <v C.C. Torbert, Jr., Chief Justice>closing argument. After that is done, then that case is considered <v C.C. Torbert, Jr., Chief Justice>to be argued and submitted, and that ends it as far <v C.C. Torbert, Jr., Chief Justice>as the lawyer's participation. <v C.C. Torbert, Jr., Chief Justice>Then the court at some subsequent time meets in conference

<v C.C. Torbert, Jr., Chief Justice>and after the judge who had the case assigned to him or her <v C.C. Torbert, Jr., Chief Justice>has studied the record and considered the arguments studied the briefs writes a <v C.C. Torbert, Jr., Chief Justice>proposed opinion that decides that case. <v C.C. Torbert, Jr., Chief Justice>Then that opinion then is circulated to all of the court <v C.C. Torbert, Jr., Chief Justice>or to that division. <v C.C. Torbert, Jr., Chief Justice>And then you have a conference and that conference is held and <v C.C. Torbert, Jr., Chief Justice>that opinion is considered to be read <v C.C. Torbert, Jr., Chief Justice>and it's discussed. <v C.C. Torbert, Jr., Chief Justice>The other justices either agree with it or disagree <v C.C. Torbert, Jr., Chief Justice>with. And as a result of that conference, all that collective <v C.C. Torbert, Jr., Chief Justice>sort of discussion, the case is then decided. <v C.C. Torbert, Jr., Chief Justice>[Sometimes] the <v C.C. Torbert, Jr., Chief Justice>opinion first presented does not carry. <v C.C. Torbert, Jr., Chief Justice>And that means that they are more opposed to it that are in favor of it. <v C.C. Torbert, Jr., Chief Justice>Sometimes the opinion is not unanimous.

<v C.C. Torbert, Jr., Chief Justice>But there are some justices who dissent or who disagree. <v C.C. Torbert, Jr., Chief Justice>And if they dissent, then they can write a dissenting opinion. <v C.C. Torbert, Jr., Chief Justice>But in every case that's finally decided is decided by a majority <v C.C. Torbert, Jr., Chief Justice>vote. And there are 9 members on the court, and therefore, <v C.C. Torbert, Jr., Chief Justice>5 of the 9 must agree, at least in the results <v C.C. Torbert, Jr., Chief Justice>of the case. Now, they may have different reasons for reaching a result, but they <v C.C. Torbert, Jr., Chief Justice>5 must agree. <v Larry Waites, Attorney>Now, there are some side issues that we have raised in brief I'd like to very quickly go <v Larry Waites, Attorney>into to illustrate it. <v Larry Waites, Attorney>The victim did, in fact, say that she knew <v Larry Waites, Attorney>the defendant, that she had known him in the past in school and in the neighborhood, <v Larry Waites, Attorney>and that she could identify him. <v Larry Waites, Attorney>He was arrested and upon trial he did not take the witness stand, <v Larry Waites, Attorney>did not testify. Our contention is that that was not necessary <v Larry Waites, Attorney>for our theory to hold that when he entered his plea of not guilty, that that put it

<v Larry Waites, Attorney>at issue that he said and did not commit the crime of rape. <v James Bloodworth, Associate Justice>That's your best point. Simply that the jury had two alternatives. <v James Bloodworth, Associate Justice>Not guilty or guilty of rape under the test. <v Larry Waites, Attorney>Yes sir, that is my best point, except that I would have to go further and say that in <v Larry Waites, Attorney>the transcript there is some medical testimony that there was no sperm in <v Larry Waites, Attorney>the vagina and therefore there might be that question of whether or not there was <v Larry Waites, Attorney>penetration. And that's why I would go further and touch on the question of whether or <v Larry Waites, Attorney>not the assault intent to ravish is a lesser included offense. <v Reneau Almon, Associate Justice>What would be wrong with this theory? Let's assume the man went in there and accosted <v Reneau Almon, Associate Justice>this young lady and did in fact, assault her with intent <v Reneau Almon, Associate Justice>to ravish. <v Reneau Almon, Associate Justice>Now, and let's assume later that he did, in fact, rape her. <v Reneau Almon, Associate Justice>Would the fact that he later raped her preclude the state from <v Reneau Almon, Associate Justice>prosecuting him for assault with intent to ravish, assuming he did that prior <v Reneau Almon, Associate Justice>to. <v Larry Waites, Attorney>No, sir.

<v Reneau Almon, Associate Justice>In other words, they were there a long time, weren't they? <v Larry Waites, Attorney>Yes sir. <v Reneau Almon, Associate Justice>Why couldn't he actually his case have assaulted her <v Reneau Almon, Associate Justice>with intent to ravish her for an hour? <v Larry Waites, Attorney>He could have. <v Reneau Almon, Associate Justice>Not consummating the purpose. <v Reneau Almon, Associate Justice>And then later having this admittedly. <v Reneau Almon, Associate Justice>Now, wasn't that a jury question? <v Larry Waites, Attorney>Well, under those facts, under those facts, but no, because <v Larry Waites, Attorney>once it's consummated, once the act is consummated, that is <v Larry Waites, Attorney>the crime that is very definitely a crime. <v Larry Waites, Attorney>I don't think that under what your honor just said I don't think you can say <v Larry Waites, Attorney>the continuing act, but now had there been consent, had there been <v Larry Waites, Attorney>consent after the assault, if you have the initial assault with intent to ravish and then <v Larry Waites, Attorney>you have that that ceases, then you have consent to the sexual intercourse. <v Reneau Almon, Associate Justice>That was gonna be my next question, see she could and then consent. <v Larry Waites, Attorney>That's right. <v Reneau Almon, Associate Justice>Then after after that assault. <v Larry Waites, Attorney>Right. And if the consent is a defense, then the court could I would can't <v Larry Waites, Attorney>contend that the court really can't but under the ?inaudible? of the case of the court

<v Larry Waites, Attorney>could then charge the jury ?inaudible? to ravish. <v James Faulkner, Associate Justice>Questioning the lawyers in particular is <v James Faulkner, Associate Justice>done for the reason that the judge or justice who's <v James Faulkner, Associate Justice>asking the question may seek clarification <v James Faulkner, Associate Justice>of some point that was in the brief. <v James Faulkner, Associate Justice>And that is the principal reason not <v James Faulkner, Associate Justice>to face away from the lawyer and <v James Faulkner, Associate Justice>prevent him from doing his job as an advocate. <v James Faulkner, Associate Justice>But it's better to enlighten the court of particular issue.Uh, <v James Faulkner, Associate Justice>I know that sometimes, uh, we have been criticized <v James Faulkner, Associate Justice>for asking too many questions and, uh, I noticed <v James Faulkner, Associate Justice>that one newspaper person had said <v James Faulkner, Associate Justice>that quoting another lawyer that the

<v James Faulkner, Associate Justice>court was taking the case away from the lawyers. <v James Faulkner, Associate Justice>Well, that's not true. <v James Faulkner, Associate Justice>We merely asked these questions to clear up some <v James Faulkner, Associate Justice>point that may be in the back of our minds, it would help in arriving <v James Faulkner, Associate Justice>at the decision. <v James Faulkner, Associate Justice>It's not done to berate a lawyer or to make him look foolish as <v James Faulkner, Associate Justice>an advocate before the court or even his client. <v James Faulkner, Associate Justice>It's always with sincerity and with the <v James Faulkner, Associate Justice>purpose in mind of enlightening the judge a justice <v James Faulkner, Associate Justice>who may be clouded on on a particular issue that he read <v James Faulkner, Associate Justice>in the brief and he was cleared up. <v C.C. Torbert, Jr., Chief Justice>In Alabama, we try to make it easier <v C.C. Torbert, Jr., Chief Justice>for cases to be decided. <v C.C. Torbert, Jr., Chief Justice>It's our goal and our aim that cases not be decided <v C.C. Torbert, Jr., Chief Justice>on what is commonly termed mere technicalities or the dotting of I and

<v C.C. Torbert, Jr., Chief Justice>the crossing of the T. <v C.C. Torbert, Jr., Chief Justice>For instance, our briefs do not have to be printed <v C.C. Torbert, Jr., Chief Justice>as they are required in the some of the federal courts. <v C.C. Torbert, Jr., Chief Justice>You can type you a brief and you can Xerox a copy and send it <v C.C. Torbert, Jr., Chief Justice>down here. <v C.C. Torbert, Jr., Chief Justice>You you have less stringent requirements. <v C.C. Torbert, Jr., Chief Justice>Although it is helpful that it be of a size where it can be placed <v C.C. Torbert, Jr., Chief Justice>and looked at. But by and large we don't have the kind <v C.C. Torbert, Jr., Chief Justice>of technicalities that you have or even Alabama had in years past. <v C.C. Torbert, Jr., Chief Justice>The idea being that every case is an issue. <v C.C. Torbert, Jr., Chief Justice>It's an important issue and it should be decided on the merits <v C.C. Torbert, Jr., Chief Justice>of that case rather than on some procedural rule <v C.C. Torbert, Jr., Chief Justice>or technicality. <v Janie Shores, Associate Justice>Now that we have a unified court system in the state of Alabama, that legislation in the <v Janie Shores, Associate Justice>Constitution, which provided for it makes the chief justice the

<v Janie Shores, Associate Justice>chief administrative head of all the courts in the state. <v Janie Shores, Associate Justice>And the chief justice, in conjunction with the members of the court, makes all <v Janie Shores, Associate Justice>administrative rules with respect to all of the courts in the state, circuit courts, <v Janie Shores, Associate Justice>district court, etc.. <v Janie Shores, Associate Justice>So what it has done, insofar as we personally are our concern is <v Janie Shores, Associate Justice>to require a great deal more administrative work <v Janie Shores, Associate Justice>than has been true heretofore. On a positive <v Janie Shores, Associate Justice>side of course what it's done is made all of the courts in the state subject to the exact <v Janie Shores, Associate Justice>same procedure and the exact same rules and to the naturally <v Janie Shores, Associate Justice>it has to emanate from one point, and those rules emanate from the Supreme Court. <v James Bloodworth, Associate Justice>Well, I think it is the unified court system has helped the cause <v James Bloodworth, Associate Justice>of justice in ?inaudible? In so many ways. <v James Bloodworth, Associate Justice>We really don't have time to to delve into all of the ways. <v James Bloodworth, Associate Justice>But just offhand, I think for the first time in any state <v James Bloodworth, Associate Justice>for that matter, we have one system of justice for all

<v James Bloodworth, Associate Justice>throughout the state. Now heretofore, just a little thing, a lawyer from one county <v James Bloodworth, Associate Justice>representing a client going into another county would not be sure that <v James Bloodworth, Associate Justice>he had complied with all the local rules of the second county because it might <v James Bloodworth, Associate Justice>have a court system entirely different from the first county. <v James Bloodworth, Associate Justice>And uniformity, I think, has been achieved. <v James Bloodworth, Associate Justice>And ?inaudible? <v James Bloodworth, Associate Justice>that in itself would justify the system. <v James Bloodworth, Associate Justice>But in addition to that, for the first time, I think we're going to see that we're going <v James Bloodworth, Associate Justice>to know exactly what we're paying for in justice and in the court system <v James Bloodworth, Associate Justice>in Alabama and exactly what it's going to cost. <v James Bloodworth, Associate Justice>And I think that's important this day in time when cost of government <v James Bloodworth, Associate Justice>in all phases of government have soared. <v Hugh Maddox, Associate Justice>And another aspect of the system, I think it's been beneficial has been <v Hugh Maddox, Associate Justice>the institution of the small claims court where people without <v Hugh Maddox, Associate Justice>an attorney can go and file for $10 filing fee, a <v Hugh Maddox, Associate Justice>cause of action against another individual.

<v Hugh Maddox, Associate Justice>This this is for the purpose of allowing them a <v Hugh Maddox, Associate Justice>place to go at a very small and reasonable cost and get <v Hugh Maddox, Associate Justice>their disputes settled in court. <v Hugh Maddox, Associate Justice>And I think the the unified system has also generated <v Hugh Maddox, Associate Justice>what I might say of a degree <v Hugh Maddox, Associate Justice>of feeling among the judiciary that we're on the move we are progressing. <v Hugh Maddox, Associate Justice>And as a result of all of the activity, the judges <v Hugh Maddox, Associate Justice>are are interested in back to school and being reeducated <v Hugh Maddox, Associate Justice>on some of the new laws that are developing, <v Hugh Maddox, Associate Justice>the case law that's developing and so forth. <v Hugh Maddox, Associate Justice>And there's a there's a feeling of progress, I think, in that I <v Hugh Maddox, Associate Justice>think that's very beneficial. <v Samuel Beatty, Associate Justice>Now let's lay aside for a moment the issue of whether or not the offense of assault with <v Samuel Beatty, Associate Justice>intent to ravish is in law a lesser included offense. <v Samuel Beatty, Associate Justice>Let's say the issue

<v Samuel Beatty, Associate Justice>is whether or not there was a conflict in the evidence, rape or no rape. <v Samuel Beatty, Associate Justice>Which would allow, if that was true, would allow the trial judge <v Samuel Beatty, Associate Justice>to charge a jury on the lesser included offenses in the general offense of rape, you <v Samuel Beatty, Associate Justice>follow? <v Larry Waites, Attorney>Yes sir. <v Samuel Beatty, Associate Justice>Now, what would it take? <v Samuel Beatty, Associate Justice>What I'm interested in is what would it take to make a conflict in the evidence <v Samuel Beatty, Associate Justice>which would allow the jury to find him guilty of a lesser included offense? <v Larry Waites, Attorney>I would ?inaudible? <v Larry Waites, Attorney>a any scintilla of a question, any question <v Larry Waites, Attorney>of the consummation of it. <v Samuel Beatty, Associate Justice>Now that's what ?inaudible? because you see the scintilla rule doesn't apply in criminal <v Samuel Beatty, Associate Justice>law, only in civil law. <v Samuel Beatty, Associate Justice>You, you follow me there? So, that's not exactly correct. <v Larry Waites, Attorney>I used the wrong word. <v Samuel Beatty, Associate Justice>Now, what bothers me is that the attorney general cites the Kelso case for <v Samuel Beatty, Associate Justice>this proposition. Do you remember that case?

<v Larry Waites, Attorney>Yes sir. <v Samuel Beatty, Associate Justice>Whether alright. Now what I want to ask you is did the accused in that <v Samuel Beatty, Associate Justice>case testify in Kelso? <v Larry Waites, Attorney>I don't think so, sir, and <v Samuel Beatty, Associate Justice>You see, if he didn't this case is almost four-square with Kelso. <v Samuel Beatty, Associate Justice>What bothers me is here we got a case in which the victim admits the rape <v Samuel Beatty, Associate Justice>and admits concedes the ?inaudible? <v Samuel Beatty, Associate Justice>the accused doesn't testify. Now, where's the conflict in the evidence? <v Larry Waites, Attorney>Here's the difference right here. I believe on questioning of the doctor <v Larry Waites, Attorney>and so question and I don't know which side is questioning it. <v Larry Waites, Attorney>So your findings do not necessarily indicate that she had sexual intercourse with a male. <v Larry Waites, Attorney>And he says no. From all in, he says that he couldn't <v Larry Waites, Attorney>conclude or not, could he conclude when there was. <v Larry Waites, Attorney>That puts at issue then you could, in fact, have had under the Kelso case, you could <v Larry Waites, Attorney>have, in fact, had that assault. <v Samuel Beatty, Associate Justice>Well, that's what bothers me about this case, because you don't have to have <v Samuel Beatty, Associate Justice>male semen to have committed rape.

<v Samuel Beatty, Associate Justice>You don't have to have outward signs of force. <v Samuel Beatty, Associate Justice>Rape can be committed by intimidation.The slightest penetration with force <v Samuel Beatty, Associate Justice>without consent is rape. <v Samuel Beatty, Associate Justice>Now where's the conflict? <v Larry Waites, Attorney>Well, the I'd have to go back and <v Larry Waites, Attorney>read the Kelso case nowadays. <v Samuel Beatty, Associate Justice>?inaudible? right? <v Larry Waites, Attorney>Yes. I think that it is other than I think that there is conflict in the Kelso case a <v Larry Waites, Attorney>case than there is in my case, because there was there was no contention. <v Larry Waites, Attorney>And again, I have to reiterate that you have read, in my opinion, the entire transcript <v Larry Waites, Attorney>to get the tenor of the trial. There was no there was no contention that they had not <v Larry Waites, Attorney>been a rape. That, in fact, there was a rape. <v Larry Waites, Attorney>And he did not raise the issue of it. <v Larry Waites, Attorney>He did not cross-examine doctors as to penetration as to semen. <v Larry Waites, Attorney>And so forth. And his general tenor was there was that there was a rape. <v Larry Waites, Attorney>I didn't do it. <v James Bloodworth, Associate Justice>You may know that this court has operated since 1912 <v James Bloodworth, Associate Justice>in divisions. We have 9 members on the Supreme Court, a chief justice and <v James Bloodworth, Associate Justice>8 associate justices.

<v James Bloodworth, Associate Justice>Each of the associate justices serve on a division of the court. <v James Bloodworth, Associate Justice>There's one division, the senior division, which is called the Bloodworth division, just <v James Bloodworth, Associate Justice>happens to be that I'm the senior justice. <v James Bloodworth, Associate Justice>The next senior justice is Justice Maddox, and he serves as chief of the Maddox <v James Bloodworth, Associate Justice>division. The chief justice serves on both divisions so that if a division <v James Bloodworth, Associate Justice>of this court at conference decides a case, 5 of them concurring, 5 <v James Bloodworth, Associate Justice>is a majority. And so it's obvious you have enough <v James Bloodworth, Associate Justice>votes for the case to go out. <v James Bloodworth, Associate Justice>That is a majority of the justices concur in it. <v James Bloodworth, Associate Justice>So it's not necessary to go to the full court. <v James Bloodworth, Associate Justice>However, if somebody on that division dissents that his has does <v James Bloodworth, Associate Justice>not agree with the opinion prepared by the justice to whom it's assigned, then it goes to <v James Bloodworth, Associate Justice>the full court. And usually that justice who dissents will prepare a dissent, meaning <v James Bloodworth, Associate Justice>he does not agree with the decision, and then the full court votes on it. <v James Bloodworth, Associate Justice>Sometimes a full court goes with the majority opinion that was prepared by the justice. <v James Bloodworth, Associate Justice>Other times I've seen the dissent become the majority opinion

<v James Bloodworth, Associate Justice>because the members of the court will agree that that's the law. <v James Bloodworth, Associate Justice>That, in a nutshell, is about how we operate. <v James Bloodworth, Associate Justice>Usually we are getting cases out within a month to two months after oral argument <v James Bloodworth, Associate Justice>or after submission on brief, and we're real proud of that. <v James Bloodworth, Associate Justice>In fact, I'd like state this at the outset that Alabama is <v James Bloodworth, Associate Justice>the only state in the union that has all of its appellate courts current. <v James Bloodworth, Associate Justice>Now meaning by that, that at the end of our court <v James Bloodworth, Associate Justice>year, which will be in September each year, we will have all <v James Bloodworth, Associate Justice>of the cases that are submitted to each judge and justice. <v James Bloodworth, Associate Justice>There are 17 judges and justices on the appellate bench of Alabama. <v James Bloodworth, Associate Justice>All of those cases will be written, an opinion will be prepared and it will be <v James Bloodworth, Associate Justice>released to the press, the news media, and to the people concerned <v James Bloodworth, Associate Justice>and the lawyers. And we're real proud of that. <v James Bloodworth, Associate Justice>I think that's a great record. And for six years now, Alabama has had that record. <v James Bloodworth, Associate Justice>And we are the only appellate bench in the country that can say that

<v James Bloodworth, Associate Justice>our record at the end of our court year is clean. <v James Bloodworth, Associate Justice>That is, we have gotten all of our cases out. <v Larry Waites, Attorney>The state contends that the court was properly charged <v Larry Waites, Attorney>jury and did so on a Title 15, Section <v Larry Waites, Attorney>233 and Title 14, Section 42, when the code says that <v Larry Waites, Attorney>when indictment charging offense of which there are different degrees, the jury may find <v Larry Waites, Attorney>the defendant guilty of the degree charged. Now, I don't think that that would hold here. <v Larry Waites, Attorney>I think that it has been misled <v Larry Waites, Attorney>in such as murder in the first degree that you have the lesser degree of murder second <v Larry Waites, Attorney>degree. But assualt intent to ravish I don't find that anybody has contended that there <v Larry Waites, Attorney>is in fact, that there is in fact, a lesser degree of crime. <v Larry Waites, Attorney>Yours further says the jury may find <v Larry Waites, Attorney>?inaudible? to have any degree inferior thereto. Again, I don't think that this is a <v Larry Waites, Attorney>question of degree goes a little further and says that that <v Larry Waites, Attorney>the jury may find an attempt to commit the offense charged

<v Larry Waites, Attorney>and if the offense is ?inaudible? <v Larry Waites, Attorney>Included in the original charge. <v Larry Waites, Attorney>Well, there is no there is no attempt here. <v Larry Waites, Attorney>And I've attempted to show it in the brief that, again, as in this particular case, <v Larry Waites, Attorney>that once you have the ?inaudible?, such as the burning of the pine forest, then there is <v Larry Waites, Attorney>no attempt. So that is part of the code section cannot be used. <v Larry Waites, Attorney>This is not an attempt. It is an assault with an intent to ravish. <v Larry Waites, Attorney>So it can't so that the theater state cannot hold on to that code section. <v Larry Waites, Attorney>So you go to Title 14, which is a second contention, Title 14, Section 42, <v Larry Waites, Attorney>which says that upon trial and by indictment that the <v Larry Waites, Attorney>jury may find the accused not guilty of the offense charged, but if the evidence warrants <v Larry Waites, Attorney>it guilty of an attempt to commit the offense, again, <v Larry Waites, Attorney>there was in this particular case no crime of attempt. <v Larry Waites, Attorney>There was, in fact, a crime of rape and rape only.. <v James Faulkner, Associate Justice>Will you stop right there?

<v Larry Waites, Attorney>Yes sir. <v James Faulkner, Associate Justice>Well why do you say there was no new evidence of any attempt? <v Larry Waites, Attorney>I say that that that the state cannot <v Larry Waites, Attorney>prosecute on attempt, because under the facts of the case, there was <v Larry Waites, Attorney>the consummated crime. And under the Broadhead case, when it is when it's when it is <v Larry Waites, Attorney>consummated, when the crime consummate, then the jury cannot find an attempt. <v Reneau Almon, Associate Justice>Well, I think if you carry that to its logical conclusion in a robbery indictment, which <v Reneau Almon, Associate Justice>except state of facts, where they robbed the force ?inaudbible? <v Reneau Almon, Associate Justice>accomplished by an assault and battery. <v Larry Waites, Attorney>All right, so you have. <v Reneau Almon, Associate Justice>Now when you say an assault and battery then cannot ever be a lesser included offense, <v Reneau Almon, Associate Justice>where in fact, there was a robbery? <v Larry Waites, Attorney>No, I think it's a question of defense. <v Larry Waites, Attorney>Now, there's a case cited in brief directly on that point <v Larry Waites, Attorney>where there was, in fact, a robbery and there was no contention that there <v Larry Waites, Attorney>was that there was the assault. <v Larry Waites, Attorney>I don't recall the facts, I'd have to pull it out, but there was the assault. <v Larry Waites, Attorney>There was the consummated robbery, the defendant said I ?inaudible? <v Larry Waites, Attorney>and actually, he didn't even testify, as I recall, in that particular case.

<v Reneau Almon, Associate Justice>It depends on the issue they frame, you say. <v Larry Waites, Attorney>That's right, and I have raised that because it is very similar to it. <v Larry Waites, Attorney>And he said I did not do it. <v C.C. Torbert, Jr., Chief Justice>That's true. Mr. Waites, your time is up. <v Larry Waites, Attorney>Yes sir. <v C.C. Torbert, Jr., Chief Justice>As chief justice in Alabama, I actually wear two hats. <v C.C. Torbert, Jr., Chief Justice>One hat that I wear is in as the chief administrative <v C.C. Torbert, Jr., Chief Justice>head of the system. And that involves dealing with the legislature <v C.C. Torbert, Jr., Chief Justice>in terms of funding or appropriations. <v C.C. Torbert, Jr., Chief Justice>It involves the day to day operations of the administration, of the system <v C.C. Torbert, Jr., Chief Justice>that is not related, however, to the court decision. <v C.C. Torbert, Jr., Chief Justice>And it's a rather challenging task to <v C.C. Torbert, Jr., Chief Justice>establish personnel, procedures, procedures for the orderly administration <v C.C. Torbert, Jr., Chief Justice>of justice to take care of the day to day problems that any business <v C.C. Torbert, Jr., Chief Justice>or any government has, aside from the function of deciding a case. <v C.C. Torbert, Jr., Chief Justice>The other function I have is to sit with the other

<v C.C. Torbert, Jr., Chief Justice>8 justices for a total of 9 on cases that are <v C.C. Torbert, Jr., Chief Justice>important that are appealed to the Supreme Court. <v C.C. Torbert, Jr., Chief Justice>So the two the two jobs, really, while they are <v C.C. Torbert, Jr., Chief Justice>in one person, they are vastly different. <v C.C. Torbert, Jr., Chief Justice>I have an administrative staff to attend to and assist me with administrative <v C.C. Torbert, Jr., Chief Justice>and management matters, how to collect information and data in terms <v C.C. Torbert, Jr., Chief Justice>of how many cases are filed and how many cases are disposed of <v C.C. Torbert, Jr., Chief Justice>in terms of what the budget needs are to buy pencils and people <v C.C. Torbert, Jr., Chief Justice>and supplies and to pay for personnel. <v C.C. Torbert, Jr., Chief Justice>Perhaps the harder job is the administrative job. <v Reneau Almon, Associate Justice>It's a very high honor, I think, to be chosen to <v Reneau Almon, Associate Justice>sit in judgment over your fellow man in many instances. <v Reneau Almon, Associate Justice>And perhaps that's biggest is one reason I could give <v Reneau Almon, Associate Justice>it is quite an honor and it's in a sense the pinnacle of your profession.

<v Reneau Almon, Associate Justice>And I think that's primarily it. <v Reneau Almon, Associate Justice>There are a lot of drawbacks to it, there are a lot of tough decisions to be made, and <v Reneau Almon, Associate Justice>rightly so there's criticism from time to time. <v Reneau Almon, Associate Justice>But then you have to make difficult decisions that affect people's lives, which <v Reneau Almon, Associate Justice>a lot of that is not very [pleasant]. <v Reneau Almon, Associate Justice>Other than that, it's a very pleasant job. <v Reneau Almon, Associate Justice>Your association with members of the bar. <v Reneau Almon, Associate Justice>But I suppose it would be the the idea of rendering service <v Reneau Almon, Associate Justice>to the community and the honor involved. <v Samuel Beatty, Associate Justice>A lot of law probably the number of lawyers think <v Samuel Beatty, Associate Justice>that that's the top of the ladder, being a member of the Supreme <v Samuel Beatty, Associate Justice>Court of the state of Alabama, where we practice law and where we know all the <v Samuel Beatty, Associate Justice>lawyers and it is a is <v Samuel Beatty, Associate Justice>it is a distinction, I think, to aspire to becoming a judge.

<v Samuel Beatty, Associate Justice>In my particular case, I had not only practiced <v Samuel Beatty, Associate Justice>law, but I had taught law a good many years. <v Samuel Beatty, Associate Justice>And I felt that my training and background as a teacher or student of <v Samuel Beatty, Associate Justice>the law. My experience in applying <v Samuel Beatty, Associate Justice>the law to particular cases would fit me for the bench. <v Janie Shores, Associate Justice>There are those of us lawyers who take a great deal of pride <v Janie Shores, Associate Justice>and pleasure in research, in writing. <v Janie Shores, Associate Justice>We're in the minority, I think, in terms of that being such a small part <v Janie Shores, Associate Justice>of the practice of law. And I had long had an interest in the scholarly <v Janie Shores, Associate Justice>side of the legal profession, if I may. <v Richard Jones, Associate Justice>I think in the back of my mind, I'd always felt that I wanted to <v Richard Jones, Associate Justice>be a trial judge. <v Richard Jones, Associate Justice>But when I saw what was beginning to happen in the area of judicial <v Richard Jones, Associate Justice>reform and saw that the Supreme Court of Alabama was really where the action

<v Richard Jones, Associate Justice>was, that this is where the new rules of court were being made <v Richard Jones, Associate Justice>under Chief Justice Heflin and his leadership, <v Richard Jones, Associate Justice>things were beginning to happen and I want to be a part of that action. <v C.C. Torbert, Jr., Chief Justice>Mr. Rucker represents the attorney general. <v John Rucker>[If it pleases the] court my name is John Rucker and I represent the state in this cause. <v John Rucker>The petitioner of Jerry Burkes was indicted by the Marshall County grand jury with <v John Rucker>the crime of rape, and the jury returned a verdict of guilty of assault with intent to <v John Rucker>ravish and sentenced Jerry Burke to 11 years in the penitentiary. <v John Rucker>The petitioner now [alledged] it was improper for the trial judge to instruct the jury <v John Rucker>with regard to the crime of assault with intent to ravish. <v John Rucker>And that, he argues, because the crime of rape was consummated, <v John Rucker>that it was improper for the jury to return a verdict of assault with intent to ravish. <v John Rucker>We maintain that it was proper for the judge to instruct the jury on the lesser included <v John Rucker>offense of assault with intent to ravish under Title 15, Section 233

<v John Rucker>and Title 14, Section 42. <v John Rucker>They read in part that a jury may find a defendant guilty of a lesser included offense or <v John Rucker>an attempt to commit that offense at the evidence so warrants. <v John Rucker>Necessarily so we have here presented presented to this court this morning a factual <v John Rucker>situation. <v James Bloodworth, Associate Justice>Since Mr. Waites tells us he did not try ?inaudible? <v James Bloodworth, Associate Justice>was a charge requested by the defendant in this case on the lesser included offense? <v John Rucker>No, sir. I don't believe it was. <v James Bloodworth, Associate Justice>The judge ?inaudible? <v John Rucker>I'd like to direct this court's attention to start with concerning <v John Rucker>the cases that the petitioner cites in his brief, he first cites the Broadhead <v John Rucker>case where the crime was setting fire to a pine tree forest. <v John Rucker>I think that's a very different factual situation than we had presented with us <v John Rucker>this morning. And that ?inaudible?

<v John Rucker>is to the jury and to the court that the crime had been committed. <v John Rucker>The pine tree forest had burned up. <v John Rucker>And I believe in our case, this rape case, we have a factual controversy over <v John Rucker>whether the rape had been committed. <v John Rucker>Whether the jury was warranted in convicting the accused of the lesser included charge. <v Eric Embry, Associate Justice>Now was the medical testing? Go ahead. I was gonna ask if the medical testimony <v Eric Embry, Associate Justice>was what warranted that conflict? <v John Rucker>Yes, sir, I believe it was. I would like to point out to the court that the doctor didn't <v John Rucker>testify in this case. The state never put the doctor on the stand. <v John Rucker>The way that that testimony came out was when the victim, the prosecutrix <v John Rucker>took the stand on cross-examination. <v John Rucker>The defense brought out the fact that she had gone to the doctor and brought out several <v John Rucker>weaknesses in the state's case on cross examination. <v John Rucker>And that was why the jury. <v Eric Embry, Associate Justice>He brought out the fact that they found no evidence of semen in the vagina? <v John Rucker>Yes, sir. <v John Rucker>Yes. There were several other things that I would want to point out, factual <v John Rucker>controversies that I would want to point to point out to the court.

<v John Rucker>On direct examination, the prosecutrix testified that she had been <v John Rucker>accosted by Jerry Burke in her house that morning, she'd been dragged down <v John Rucker>the hall. She'd been choked and beat up and thrown around. <v John Rucker>And there was quite a bit of testimonies concerning the rough treatment that the accused <v John Rucker>in the had assaulted her with. <v John Rucker>And on cross-examination, the <v John Rucker>defense attorney brought out the fact that the doctor found no bruises or scrapes or cuts <v John Rucker>or any bruise, except for a quarter sized bruise on her left breast. <v John Rucker>And so the state maintains that that is one factual instance that <v John Rucker>set the jury on notice. And they they tended to take <v John Rucker>a little bit of weight away from her testimony. <v Samuel Beatty, Associate Justice>Well, now, wait a minute. Does that does that take away the fact that <v Samuel Beatty, Associate Justice>rape was committed? <v John Rucker>No, sir. I just feel that's that's one fact. <v Samuel Beatty, Associate Justice>That seems to me to be the whole point in this case. <v Samuel Beatty, Associate Justice>?inaudible? direct your attention to that, assuming that and I

<v Samuel Beatty, Associate Justice>think it's well established that a scintilla of evidence rule doesn't apply in this case <v Samuel Beatty, Associate Justice>so that I would take it that the state would have <v Samuel Beatty, Associate Justice>to have proved, by substantial evidence, clear and convincing evidence. <v Samuel Beatty, Associate Justice>Not only that, the rape did not occur, but that the assault <v Samuel Beatty, Associate Justice>did with intent to rape ?inaudible?. Now, she said she testified, as I understand from <v Samuel Beatty, Associate Justice>the briefs court of criminal appeals opinion. <v Samuel Beatty, Associate Justice>She testified that he did rape her. <v Samuel Beatty, Associate Justice>What's the evidence of the conflict? <v Samuel Beatty, Associate Justice>That's what we I want to know. <v Samuel Beatty, Associate Justice>You conceived you've got to have a conflict. <v John Rucker>Yes sir. <v Samuel Beatty, Associate Justice>Now, where's the conflict? <v John Rucker>Well, we feel that we've got a bigger conflict in our case than the two cases that you <v John Rucker>mentioned, the Kelso and Williams case. <v John Rucker>We feel that in Kelso and Williams, I want to direct the court's attention that in <v John Rucker>Williams that the doctor was placed on the on the witness stand. <v John Rucker>And the there was we maintain a much. <v John Rucker>It was proved we feel more conclusively in Williams and Kelso that the rape was

<v John Rucker>committed, as I recall. <v John Rucker>And in Kelso, for instance, where they said it was a jury question. <v John Rucker>The doctor testified on the stand on cross-examination <v John Rucker>that the sperm could have been placed in her vagina by another means <v John Rucker>rather than his sexual organs. <v John Rucker>And that was this the number one reason that the court <v John Rucker>said that that presented a jury question just because that little bit of testimony there. <v Hugh Maddox, Associate Justice>In these books contain the opinions which are drafted <v Hugh Maddox, Associate Justice>and concurred in by the judges. <v Hugh Maddox, Associate Justice>And the value of this is that in cases down the road, <v Hugh Maddox, Associate Justice>then lawyers and judges refer to these prior opinions and cite <v Hugh Maddox, Associate Justice>them in support of their position in a particular case. <v Hugh Maddox, Associate Justice>So that's that's the value of having them published and this is called ?inaudible? <v Hugh Maddox, Associate Justice>and it contains all of the opinions <v Hugh Maddox, Associate Justice>of the Supreme Court of Alabama, the Court of Criminal Appeals of Alabama and the court

<v Hugh Maddox, Associate Justice>of civil appeals. <v C.C. Torbert, Jr., Chief Justice>The law, just like anything else, is not <v C.C. Torbert, Jr., Chief Justice>a fixed thing forever because we live in changing modern <v C.C. Torbert, Jr., Chief Justice>times. But the Supreme Court is <v C.C. Torbert, Jr., Chief Justice>very hesitant to change a ?inaudible? <v C.C. Torbert, Jr., Chief Justice>or an existing case, although it does on occasion do that to <v C.C. Torbert, Jr., Chief Justice>fit in with the changing times as appropriate. <v C.C. Torbert, Jr., Chief Justice>But it's a very serious matter. <v C.C. Torbert, Jr., Chief Justice>And in one recent case where a decision had been made previously <v C.C. Torbert, Jr., Chief Justice>but simply didn't fit at all anymore, or the <v C.C. Torbert, Jr., Chief Justice>court decided that it should overrule that case, then <v C.C. Torbert, Jr., Chief Justice>it did it in a careful sort of way and said that henceforth <v C.C. Torbert, Jr., Chief Justice>the law will be thus and so or the law is thus and so, and it did not <v C.C. Torbert, Jr., Chief Justice>disturb that which had gone on in the past. <v C.C. Torbert, Jr., Chief Justice>And there's very good reason for that.

<v C.C. Torbert, Jr., Chief Justice>And the reason is that people make decisions, <v C.C. Torbert, Jr., Chief Justice>important decisions relating to their property based upon what this court <v C.C. Torbert, Jr., Chief Justice>has said. <v Reneau Almon, Associate Justice>Judges don't have as much leeway of decision as <v Reneau Almon, Associate Justice>a lot of people think they do. And some areas they do. <v Reneau Almon, Associate Justice>And their personal philosophy of life and other political issues <v Reneau Almon, Associate Justice>of the day come to bear. But most of the decisions <v Reneau Almon, Associate Justice>that the essential question is, does the judge understand the law? <v Reneau Almon, Associate Justice>Does he understand the facts and can he apply the law to ?inaudible? <v Reneau Almon, Associate Justice>regardless of who the parties are and, uh, <v Reneau Almon, Associate Justice>and that's essentially character, I think. <v Reneau Almon, Associate Justice>The law only undertakes to prescribe minimum standards. <v Reneau Almon, Associate Justice>They are not necessarily moral standards, but the law also undertakes <v Reneau Almon, Associate Justice>to adjust all disputes. <v Reneau Almon, Associate Justice>And the kind of disputes that citizens can get into is virtually unlimited. <v Reneau Almon, Associate Justice>So it's a bold undertakin. It's

<v Reneau Almon, Associate Justice>in those areas that I mentioned earlier, where there's no precedent, <v Reneau Almon, Associate Justice>no clear statute on it, no clear act of Congress or the Constitution is not <v Reneau Almon, Associate Justice>explicit. <v Reneau Almon, Associate Justice>It's in those areas that the judges' philosophy does <v Reneau Almon, Associate Justice>of necessity. And it would be wrong for anybody to assume <v Reneau Almon, Associate Justice>otherwise. In fact, that's that's what you're electing the man for. <v Reneau Almon, Associate Justice>You're saying the public should be saying to him I'm going to <v Reneau Almon, Associate Justice>choose this person because in difficult situations <v Reneau Almon, Associate Justice>I have confidence that they have common sense and judgment, <v Reneau Almon, Associate Justice>that their [interests] in the long run benefit of the state <v Reneau Almon, Associate Justice>of Alabama and the nation. To understand the check and balance system of our <v Reneau Almon, Associate Justice>Constitution, they understand that certain duties are executive <v Reneau Almon, Associate Justice>and certain are legislative.

<v Reneau Almon, Associate Justice>You see, the power of the legislature is plenary total and the legislature <v Reneau Almon, Associate Justice>may do anything they want to, so long as it's not unconstitutional. <v Reneau Almon, Associate Justice>Well, it's the province of the judiciary to determine <v Reneau Almon, Associate Justice>what's unconstitutional, but beyond that, they have no say so <v Reneau Almon, Associate Justice>about what the legislature does. <v Reneau Almon, Associate Justice>The executive branch, on the other hand, is charged with faithfully <v Reneau Almon, Associate Justice>executing those laws. <v Reneau Almon, Associate Justice>And of course, the judiciary from time to time is called upon to balance these <v Reneau Almon, Associate Justice>three. Each checks the other. <v Reneau Almon, Associate Justice>Well in those areas of the law, you can see <v Reneau Almon, Associate Justice>are quite sensitive. <v Reneau Almon, Associate Justice>And it calls for the judgment of the judge or the court that's sitting <v Reneau Almon, Associate Justice>in judgment on that issue. <v James Faulkner, Associate Justice>I think we got sort of sidetracked on what the burden of proof is. <v James Faulkner, Associate Justice>Burden of proof is still proof beyond reasonable doubt? <v John Rucker>Yes sir. <v James Faulkner, Associate Justice>But we don't go by the rule of clear and convincing evidence in a criminal case.

<v John Rucker>But still, if the if the jury, from looking at the testimony, <v John Rucker>had had a doubt that there was, in fact, if the rape wasn't <v John Rucker>in fact committed and that there was an assault, we feel that the jury was warranted in <v John Rucker>convicting the accused of the crime of assault. <v Hugh Maddox, Associate Justice>Mr. Rucker, do you contend, as a matter of law, that a trial judge should charge in every <v Hugh Maddox, Associate Justice>case on the lesser included offense in a rape case? <v Hugh Maddox, Associate Justice>You got all the legal elements in an assault with intent to ravish leading up <v Hugh Maddox, Associate Justice>to a rape, haven't you? <v John Rucker>I imagine that just kind of looking at this case that the <v John Rucker>trial judge probably would have instructed the jury on the lesser included offense no <v John Rucker>matter what from ?inaudible?. <v John Rucker>But we feel that that he was wanted in this particular set of circumstances <v John Rucker>because of the conflicting evidence presented by the prosecutrix. <v John Rucker>And I would direct again the court's attention to the conflicting testimony

<v John Rucker>in Kelso and Williams, which we think wasn't as conflicting as we had in this case. <v Hugh Maddox, Associate Justice>Well, Kelso, as I read it, it says that the jury had a right to believe <v Hugh Maddox, Associate Justice>or disbelieve any or all the testimony. <v John Rucker>Yes, sir. <v Samuel Beatty, Associate Justice>Well that's mighty puzzling to me, you say, in effect, what you're really arguing <v Samuel Beatty, Associate Justice>is you're not arguing the lesser included offense rule at all, you're saying whenever <v Samuel Beatty, Associate Justice>there's a rape charge, judge can charge on lesser included offenses. <v Samuel Beatty, Associate Justice>You're saying in the jury the jury can disregard <v Samuel Beatty, Associate Justice>any part of the evidence so they can disregard her confession that he raped her. <v Samuel Beatty, Associate Justice>Disregard that in order to find him guilty of an assault with intent to rape. <v Samuel Beatty, Associate Justice>They can believe that but they don't have to believe her, her confession <v Samuel Beatty, Associate Justice>that he raped her. <v Richard Jones, Associate Justice>It'd be hard for me to conceive that this case came to this court in exactly the same <v Richard Jones, Associate Justice>?inaudible? with one exception, that is that the defense <v Richard Jones, Associate Justice>had asked for the charge of the lesser included offense,

<v Richard Jones, Associate Justice>and that had been refused. <v Richard Jones, Associate Justice>It's hard for me to conceive that this court would have taken five minutes with it. <v Richard Jones, Associate Justice>It would have been reversed world without end, right there. <v John Rucker>Yes sir. <v Richard Jones, Associate Justice>Because under these facts ?inaudible? <v Richard Jones, Associate Justice>entitled to their charge, now that he got that charge, he's complaining about it. <v Richard Jones, Associate Justice>You just agreed with me, I take it. <v John Rucker>I understand what you're saying, yes sir. <v James Faulkner, Associate Justice>Well, he did object to the charge, didn't he, at the desk? <v John Rucker>He did object. <v James Faulkner, Associate Justice>Seeking a position on a court whether it be a trial bench <v James Faulkner, Associate Justice>or an appellate bench something that's <v James Faulkner, Associate Justice>to the left, to the individual lawyer. <v James Faulkner, Associate Justice>I know when I was a freshman in law school, it was <v James Faulkner, Associate Justice>considered the ultimate of success if you became a member of <v James Faulkner, Associate Justice>the Supreme Court. <v James Faulkner, Associate Justice>And while I always aspired <v James Faulkner, Associate Justice>on this court, I never dreamed that when I was a freshman

<v James Faulkner, Associate Justice>that I would be, but I do consider it the <v James Faulkner, Associate Justice>heights of my success in the field of law. <v James Faulkner, Associate Justice>I know that I made more money when I practiced law. <v James Faulkner, Associate Justice>Yet I did not get the satisfaction of doing my work. <v James Faulkner, Associate Justice>I get the satisfaction that I get here. <v James Faulkner, Associate Justice>Well, I think that I'm doing some good. <v James Faulkner, Associate Justice>Well, I'm not whether I am not, I don't know. <v James Faulkner, Associate Justice>But I hope that I am. And that is purely an individual's desire. <v James Faulkner, Associate Justice>All lawyers don't wanna be judges because they don't have the <v James Faulkner, Associate Justice>judicial temperament, so to speak. <v James Faulkner, Associate Justice>That's one reason. Another reason is that, uh, they, uh, prefer <v James Faulkner, Associate Justice>to be out in the, uh, arena where the fights <v James Faulkner, Associate Justice>going on. And, uh, another reason is that, uh, it's just <v James Faulkner, Associate Justice>more money in being a practicing lawyer than it is on the court.

<v Eric Embry, Associate Justice>The work consists of a whole lot of reading and writing. <v Eric Embry, Associate Justice>?inaudible in contrast to what I did for my 28 years of practice, <v Eric Embry, Associate Justice>which was trial work. <v Eric Embry, Associate Justice>This is a complete new ambience. <v Eric Embry, Associate Justice>You know, both trial work. <v Eric Embry, Associate Justice>And you're somewhat the lack of the combative role as a trial lawyer has to assume. <v Eric Embry, Associate Justice>In other words I can look at things <v Eric Embry, Associate Justice>completely detached and objectively, <v Eric Embry, Associate Justice>I hope. I've always since childhood been a voracious reader. <v Eric Embry, Associate Justice>That's one of my main hobbies. <v Eric Embry, Associate Justice>I like to hunt and fish. Unfortunately, not much time for it. <v Eric Embry, Associate Justice>I take at least one day of the week, every Sunday to <v Eric Embry, Associate Justice>do a great deal of my reading in the quiet here in my home.

<v Eric Embry, Associate Justice>Without distraction, you know, you can absorb, I can at least, different people have <v Eric Embry, Associate Justice>different work habits, can absorb a great <v Eric Embry, Associate Justice>?inaudible? in the early hours of morning in my kitchen table, <v Eric Embry, Associate Justice>than I can in an office with the telephone ringing, <v Eric Embry, Associate Justice>people bustling around, bustling about, as it were. <v James Bloodworth, Associate Justice>I chose public service think as a career <v James Bloodworth, Associate Justice>because of a sense of a need to serve others. <v James Bloodworth, Associate Justice>I think basically that's what probably prompts most of us who are in public <v James Bloodworth, Associate Justice>service and I like to call it that. <v James Bloodworth, Associate Justice>Public service, serving the public. <v James Bloodworth, Associate Justice>Suppose I'd take an old fashioned view of it. <v James Bloodworth, Associate Justice>But that's the way I am, because I truly believe that <v James Bloodworth, Associate Justice>[service] is the rent we pay for the ?inaudible? we occupy on of this earth. <v James Bloodworth, Associate Justice>And I think every man and every woman, every young person owes something

<v James Bloodworth, Associate Justice>to other generations that have preceded us, to our fellow man. <v James Bloodworth, Associate Justice>Finally, to ourselves. <v James Bloodworth, Associate Justice>Then, too, I think I get a sense of fullfill ?inaudible? <v James Bloodworth, Associate Justice>public service in the judiciary that I didn't get in the law practice <v James Bloodworth, Associate Justice>opportunities that we have for study and reflection, <v James Bloodworth, Associate Justice>which often the busy lawyer doesn't have. <v James Bloodworth, Associate Justice>And finally, I suppose a sense of achievement after a case is <v James Bloodworth, Associate Justice>over here that you've done the best you could. <v James Bloodworth, Associate Justice>You've called it like you saw it. <v James Bloodworth, Associate Justice>And that's the result. <v James Bloodworth, Associate Justice> <v Larry Waites, Attorney>If it pleases the court I very briefly o a step further than I have gone to this point. <v Larry Waites, Attorney>I do not have the code in front of me, but in Title 14, there are innumerable, <v Larry Waites, Attorney>that's not the right word, there are several statutes called rape and kindred

<v Larry Waites, Attorney>offenses. <v Larry Waites, Attorney>One being rape, one being carnal knowledge of a child <v Larry Waites, Attorney>between 12 and 16, one under 12, and one of assault [with intent to ravish]. <v Larry Waites, Attorney>Rape and kindred offenses. <v Larry Waites, Attorney>The case and I have not brought it up other than to have the citation <v Larry Waites, Attorney>of the Smith versus State, which is 38 Southern second 341 <v Larry Waites, Attorney>court appeals way into a dissertation concerning rape <v Larry Waites, Attorney>and kindred offenses and said the most important thing having to do with <v Larry Waites, Attorney>the issue here today, that rape and its kindred offenses <v Larry Waites, Attorney>are the subject of several different ?inaudible? <v Larry Waites, Attorney>And the punishment for each is distinctly described. <v Larry Waites, Attorney>No one of these embraces the offense included in the other. <v Larry Waites, Attorney>I am here to say, and I have said that the court of appeals in these cases decided <v Larry Waites, Attorney>the state is wrong, ?inaudible?

<v Larry Waites, Attorney>in fact, a separate offense of assault, intent to ravish. <v Larry Waites, Attorney>The difference being an element that is the element consummation <v Larry Waites, Attorney>that assault intent to ravish has an element that rape does not in <v Larry Waites, Attorney>that element being lack of consummation. <v Larry Waites, Attorney>I contend that in fact this is a separate offense <v Larry Waites, Attorney>and one of the best measures of proof points of proof that I have, in <v Larry Waites, Attorney>my opinion, is that the sentence under our ?inaudible? <v Larry Waites, Attorney>for what has been called a separate and distinct offense, that our sentence for rape <v Larry Waites, Attorney>is a minimum 10 years with no maximum. <v Larry Waites, Attorney>On the charge of assault with intent to ravish and on assault charge <v Larry Waites, Attorney>of assualt with intent to rob is a good analogy that the sentence carries with <v Larry Waites, Attorney>it a penalty of 2 to 20. <v Larry Waites, Attorney>In this particular case, the man was sentenced to one year more <v Larry Waites, Attorney>than the minimum for rape.

<v Larry Waites, Attorney>I feel that the court should take that into consideration and not raise it at all in <v Larry Waites, Attorney>brief. But I think that the court should take that into consideration to show that there <v Larry Waites, Attorney>is in fact a separate and distinct offense with assualt intent to ravish. <v C.C. Torbert, Jr., Chief Justice>Thank you very much. <v C.C. Torbert, Jr., Chief Justice>We'll take a 10 minute recess before convening for the next case. <v Narrator>Five weeks from the date of this oral argument, the Supreme Court of Alabama rendered <v Narrator>its decision. That decision stated, writ quashed <v Narrator>as improvidently granted. <v Narrator>Thus, the Supreme Court upheld the lower court's decision and denied appellate <v Narrator>jerry Burkes represented by attorney Larry Waites an opportunity for a new <v Narrator>trial. <v Richard Jones, Associate Justice>The court up on full deliberation and after careful <v Richard Jones, Associate Justice>consideration of oral arguments and briefs in the case, decided that the Court of <v Richard Jones, Associate Justice>Criminal Appeals opinion in affirming that conviction was correct

<v Richard Jones, Associate Justice>and they should be affirmed. <v Richard Jones, Associate Justice>Rather than writing a full opinion and repeating what the Court of Criminal Appeals had <v Richard Jones, Associate Justice>said, we simply entered an order quashing the writ. <v Richard Jones, Associate Justice>That is to say that originally when the petitioner asked us to review <v Richard Jones, Associate Justice>the opinion from the court of Criminal, which confirmed <v Richard Jones, Associate Justice>or affirmed his conviction, we thought there was merit to <v Richard Jones, Associate Justice>that petition and we granted it and reviewed it, but then we decided that <v Richard Jones, Associate Justice>the Court of Criminal Appeals was correct and nothing more needed to be written on the <v Richard Jones, Associate Justice>subject. And we quash the writ. <v Richard Jones, Associate Justice>That is to say, we left it where we found it and left the Court of Criminal Appeals <v Richard Jones, Associate Justice>opinion to stand. <v C.C. Torbert, Jr., Chief Justice>The law [just like] anything <v C.C. Torbert, Jr., Chief Justice>else is not a fixed thing forever because <v C.C. Torbert, Jr., Chief Justice>we live in changing modern times. <v James Bloodworth, Associate Justice>This is the appellate bench. The Supreme Court is the highest court in the state. <v C.C. Torbert, Jr., Chief Justice>It means a great deal for the average citizen to be able to come in and go

<v C.C. Torbert, Jr., Chief Justice>look when that citizen is not personally involved, but to see how the court works <v C.C. Torbert, Jr., Chief Justice>and see how arguments are made and how cases are decided. <v Reneau Almon, Associate Justice>It's a very high honor, I think, to be chosen to sit <v Reneau Almon, Associate Justice>in judgment over your fellow man in many instances and <v Reneau Almon, Associate Justice>perhaps thats. <v James Faulkner, Associate Justice>Think that I'm doing some good for them. <v James Faulkner, Associate Justice>Not whether I am or not, I don't know, but I hope that I am. <v Reneau Almon, Associate Justice>But then you have to make difficult decisions that affect people's lives, which <v Reneau Almon, Associate Justice>a lot of that is not very pleasant. <v C.C. Torbert, Jr., Chief Justice>But in every case that's finally decided is decided by a majority <v C.C. Torbert, Jr., Chief Justice>vote. <v Richard Jones, Associate Justice>And we quash the writ. That is to say, we left it where we found it. <v James Bloodworth, Associate Justice>You've done the best you could. <v James Bloodworth, Associate Justice>You called it like you saw it. <v James Bloodworth, Associate Justice>And that's the result. <v Speaker>This program has been produced in the studios of Auburn Television.