Carpenter v. State

• Decision Date: 20 May 1915
• Docket Number: 930
• Citation: 69 So. 531,193 Ala. 51
• Parties: CARPENTER v. STATE.
• Court: Alabama Supreme Court

69 So. 531

193 Ala. 51

CARPENTER v. STATE.

No. 930

Supreme Court of Alabama

May 20, 1915

Rehearing Denied June 30, 1915

Appeal from Criminal Court, Jefferson County; S.E. Greene, Judge.

Millard Carpenter was convicted of murder in the first degree, and he appeals. Affirmed.

Arthur L. Arnold and Vassar L. Allen, both of Birmingham, for appellant.

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

MAYFIELD J.

Appellant is represented here by able counsel, who argued the case well, both orally and in brief; and it is conceded that, if any reversible error is shown, it was in the giving of the following instruction, which was requested in writing by the state. We have examined the whole record, as the statute directs, and we agree with counsel that the giving of the charge in question presents the only question worthy of consideration. The charge was as follows:

"I charge you, gentlemen of the jury, that if you believe that Millard Carpenter, the defendant, has willfully and corruptly testified falsely as to any material fact in this case, then you may disregard any part or all of his testimony."

It is conceded by counsel that the charge states a correct proposition of abstract law, and that this court has frequently held that charges like it were correct and properly given, when the charge did not name a particular witness; but it is insisted that naming a particular witness and especially the defendant himself, who was a witness gives undue prominence to his testimony, by singling him out from all other witnesses in the case, and that the giving of the charge was thus rendered improper, and prejudicial to the defendant.

We cannot agree with counsel in this insistence. Since the passage of our statutes allowing the defendant in criminal cases to testify as a witness for himself, this court has uniformly held that where a defendant in a criminal prosecution elects to become a witness in his own behalf, as he may do under the statute, he waives the constitutional guaranty which protects him from answering questions touching the merits of the case which may tend to criminate him. He may be examined by the state as to all material facts pertinent to his guilt, and his failure to explain or rebut any criminating fact, where he reasonably can do so, is a circumstance which may be considered by the jury as prejudicial to his innocence. Cotton v. State, 87 Ala. 103, 6 So. 372. A defendant who has voluntarily made a witness of himself may be recalled and examined further. Thomas v. State, 100 Ala. 53, 14 So. 878; Williams v. State, 98 Ala. 52, 13 So. 333. A defendant, who testifies for himself as a witness, may be impeached in the same manner as other...