Opinion
6 Div. 613.
April 5, 1949. Rehearing Denied May 3, 1949.
Appeal from Circuit Court, Jefferson County; Alta L. King, Judge.
Arthur Parham was convicted of robbery, and he appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Parham v. State, 252 Ala. 279, 40 So.2d 646.
K.C. Edwards, of Birmingham, for appellant.
It was error to permit introduction of the so-called F.B.I. sheet, purporting to show previous conviction of appellant. It did not purport to be a final record of a conviction from any court in the manner prescribed by law. Code 1940, Tit. 7, §§ 422, 423, 432. It was nothing more than hearsay. Murphy v. State, 108 Ala. 10, 18 So. 557; Spicer v. State, 188 Ala. 9, 65 So. 972; Richardson v. State, 215 Ala. 318, 111 So. 204. Moreover a conviction by court-martial would not be admissible. Fidelity-Phoenix Fire Ins. Co. v. Murphy, 231 Ala. 680, 166 So. 604.
A.A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.
A witness may be discredited by proof of prior conviction of offense involving moral turpitude. Code 1940, Tit. 7, § 434. Proof of conviction without the jurisdiction of this State is admissible. Fidelity-Phenix Fire Ins. Co. v. Murphy, 231 Ala. 680, 166 So. 604; Dickey v. State, 32 Ala. App. 413, 26 So.2d 532. Proof of conviction by army court is admissible. 6 C.J.S., Army and Navy, §§ 38, 52, 56, 59, pp. 425, 441, 456, 464. See Midkiff v. State, 29 Ariz. 523, 243 P. 601. The manner of offering the proof was proper. Ellis v. State, 244 Ala. 79, 11 So.2d 861; Childers v. Holmes, 207 Ala. 382, 92 So. 615; Rollings v. State, 160 Ala. 82, 49 So. 329. The paper shows that it is the record of this appellant, and over the signature of the director of the department. This amounts to a certificate.
This appellant has been convicted of robbery, and sentenced to imprisonment in the penitentiary for a term of ten years.
Evidence introduced by the State was abundant in its tendencies to establish appellant's guilt.
The defense was based on an attempt to establish an alibi. That such effort was unconvincing to the jury is apparent from the verdict of guilty.
During the cross examination of the appellant he was asked by the Solicitor if he had not been tried and convicted by a court martial at Fort Knox, Kentucky, of the offense of rape, and given a sentence of five years.
Objection to this question was interposed by appellant's counsel, which objection was overruled, exception being duly reserved. The appellant replied in the negative.
In an attempt to rebut appellant's above denial the State introduced as a witness Mr. J.H. McFarland, Identification Officer for Jefferson County. Mr. McFarland testified that he had a record on the appellant, forwarded to him from Washington, D.C., by the Federal Bureau of Investigation. This record was termed by Mr. McFarland as "the criminal record of Arthur Parham" from the Federal Bureau of Investigation in Washington.
Over appellant's objection and exception this paper was then received in evidence. It is in words and figures as follows:
"Federal Bureau of Investigation
United States Department of Justice
ALA. 1917 M. B. WASHINGTON, D.C. The following is the record of FBI number 4080981 J.E. Hoover, Director. ------------------------------------------------------------------------ Contributor of Name and Arrested or Charge Disposition Finger Prints Number Received ------------------------------------------------------------------------ Rehab. Center Arthur Parham 5-14-43 Having carnal 5 yrs. Ft. Knox, Ky. #1159 knowledge H. L. Rehab. Center, Arthur Parham 6-4-43 Rape 5 yrs. Camp Bowie, #443/493 Texas USDB, Fort Har- Arthur Parham Not given 92 AW 5 yrs. rison, Ind. #M560 (F.P. 11-22-44) War Dept., Wash., Arthur Parham Inducted 4-1-42 D.C. #34166737 Fort McClellan Ala. PD., Birmingham, Arthur Parham 8-16-47 Robbery 8-26-47 del Ala. #66026 to SO Bir- mingham, Ala. SO, Birmingham Arthur Parham 8-26-47 Ala. #45113 The following is the record of FBI number 4080981 J.E. Hoover, Director, Wanted: As Arthur Parham, by P. M. G. O., War Dept. Inf dated 3 — 46. CC: Provost Div. Provost Marshal Generals Office, War Dept., Wash., D.C. Notice: This Record is furnished for Official Use only.Thereafter the appellant was recalled as a witness and testified, on redirect and re-cross examination, that he had been convicted of rape by a court martial which sat at Camp Hood, Texas. He had therefore answered in the negative when previously asked if he had been so convicted at Fort Knox, Kentucky.
Appellant further contended that "They reduced it after I was locked up at Fort Benjamin Harrison, they paid me all the time I was locked up, and got all of that straightened out," and that he was reinstated to active duty.
The Attorney General argues that the above paper, showing the prior criminal record of this accused was properly admitted as being evidence of a conviction for a crime involving moral turpitude, and therefore going to accused's credibility as a witness. See Section 423, Title 7, Code of Alabama 1940.
Without deciding whether a prior court martial conviction for a crime involving moral turpitude, as distinguished from such conviction in a civil court, is admissible for the purposes above referred to, we are clear to the conclusion that the paper admitted in this case could in no event be properly received in evidence.
The paper was designated by State's witness McFarland as the "criminal record" of the appellant. That this is its character is shown from the contents of the document itself. Certainly it does not purport to be a record of court or judicial proceeding, which records are admissible when relative, provided they are properly authenticated. See Section 427, Title 7, Code of Alabama 1940.
Nor is the paper admissible under Section 428, Title 7, Code of Alabama 1940, as a paper in the nature of a record kept in a public office, which in proper cases may be admissible when attested by the custodian of such record.
To certify means to attest authoritatively. Bates v. Bates, 247 Ala. 337, 24 So.2d 440. No certification of this record appears on it.
The complete absence of any authentication of this paper immediately negatives its proper reception in evidence. Further consideration of various other possible vices with which it is apparently infected is therefore unnecessary.
The appellant's admission that he was convicted of rape by a court martial at Camp Hood, Texas, was in nowise an admission of substantially the same facts as evidenced by the paper. This admission therefore did not render innocuous the error resulting from the reception in evidence of the document. In our opinion there is no room for the application of the principle that the admission of incompetent evidence as to a fact later admitted by an accused is rendered harmless by such admission. See 7 Ala. Dig., Crim. Law, 1169(3), for innumerable cases enunciating such doctrine.
Reversed and remanded.