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<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.
The Alabama Supreme Court : A Changing Constant
Producing Organization
Alabama Public Television
Auburn University. Educational Television Department
Contributing Organization
The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia (Athens, Georgia)
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Program Description
"Taped while the Alabama Supreme Court was sitting in oral argument at Auburn University, this documentary explains the structure of Alabama's court system and demonstrates the function of the Supreme Court within this structure. The justices themselves describe various aspects of the state's legal system and their individual approaches to their roles. Other parts of the program outline the procedures utilized during Supreme Court sessions and show how the Court fits into Alabama's new unified court system."--1978 Peabody Awards entry form. Appearances include Alabama Supreme Court justices C.C. Tolbert, Jr. (chief justice), Eric Embry, Hugh Maddox, James Bloodworth, James Faulkner, Janie Shores, Reneau Almon, Richard Richard Jones, and Samuel Beatty. Additional appearances include Attorneys Larry Waites and John Rucker.
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Director: Cooley, Bob
Executive Producer: Stone, James H.
Producer: Cooley, Bob
Producer: Scholder, Pam
Producing Organization: Alabama Public Television
Producing Organization: Auburn University. Educational Television Department
AAPB Contributor Holdings
The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia
Identifier: cpb-aacip-6e98a61e678 (Filename)
Format: U-matic
Duration: 01:00:00
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Chicago: “The Alabama Supreme Court : A Changing Constant,” 1978-09-27, The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed June 28, 2022,
MLA: “The Alabama Supreme Court : A Changing Constant.” 1978-09-27. The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. June 28, 2022. <>.
APA: The Alabama Supreme Court : A Changing Constant. Boston, MA: The Walter J. Brown Media Archives & Peabody Awards Collection at the University of Georgia, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from