Carter v. State

• Decision Date: 11 February 1915
• Docket Number: 118
• Citation: 67 So. 981,191 Ala. 3
• Parties: CARTER v. STATE.
• Court: Alabama Supreme Court

67 So. 981

191 Ala. 3

CARTER v. STATE.

No. 118

Supreme Court of Alabama

February 11, 1915

Appeal from Circuit Court, Conecuh County; A.E. Gamble, Judge.

Martin Carter was convicted of murder in the first degree, and appeals. Reversed and remanded.

James A. Stallworth, of Evergreen, for appellant.

W.L Martin, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

McCLELLAN J.

The appellant has been adjudged guilty of murder in the first degree. The victim was one Lett. The state's theory was that the homicide was of an entirely unjustifiable character. The defense was a denial of any participation of any kind, in the killing of Lett, by the accused; an alibi being offered to sustain his denial. Manifestly the question of guilt vel non was for the jury, under the evidence.

The substance of a dying declaration said to have been made by Lett, under affirmatively proven consciousness of his impending dissolution, was admitted in evidence. There is no room for argument against the propriety of the action of the court in admitting to the jury the matter of the dying declaration. The predicate was satisfactorily laid to allow the admission in evidence of all the declarant said descriptive of the circumstances attendant upon and surrounding his version of the tragedy. Where a dying declaration is properly admitted in evidence, it may be discredited or impeached just as if the declarant had testified as a witness in the proceeding. So it is competent to allow the declarant's credibility to be inquired into his reputation for truth and veracity, and whether he would if testifying as a witness in that behalf, be worthy of belief, in a court of justice. 21 Cyc. pp. 993, 994; Ency. on Evi. p. 1015; Carver v. U.S., 164 U.S. 694, 697, 17 Sup.Ct. 228, 41 L.Ed. 602; Lester v. State, 37 Fla. 382, 20 So. 232; Gambrell v. State, 92 Miss. 728, 46 So. 138, 17 L.R.A.(N.S.) 291, 131 Am.St.Rep. 549, 16 Ann.Cas. 147.

The witness McCrory was called by the prosecution. He testified to a declaration by Lett, who had told him he was going to die. On cross-examination the witness testified, without objection, that Lett's general reputation and his reputation for truth and veracity were bad. He was then asked whether Lett would have been entitled to belief as a witness, in a court of justice. The state's general objection to the question was sustained. Perhaps the trial court entertained the opinion that the injection of the inquiry made by the question was not in order under a proper cross-examination; that it should have come on the defendant's initiative, the witness not having testified on his examination in chief in reference to the particular matter of Lett's reputation or character. If this was the ground of the court's ruling, it consisted with the quotation from Phil. R.R. Co. v. Stimpson, 14 Pet. 448, 461, 10 L.Ed. 535, made in our case of Toole v. Nichol, 43 Ala. 406, 419. That statement of doctrine is not the rule established in this jurisdiction. In Fralick v. Presley, 29 Ala. 457, 461, 65 Am.Dec. 413, it was said:

"This court decided, in the case of Kelly v. Brooks, 25 Ala. 523, that the party against whom a witness has been introduced and examined in chief has a right to examine him 'fully as to his knowledge touching any and all facts material to the case.' We think the rule thus laid down is sustained by principle and a preponderance of authority."

The Stimpson Case, supra, is there cited as sustaining the announcement made; but in this particular the pertinent doctrine of that case was evidently misunderstood. Nevertheless, we take the rule to be correctly stated in Fralick v. Presley; and its soundness, in principle, is further vindicated by the considerations stated and the pertinent rulings made in Amos' Case, 96 Ala. 120, 125 11 So. 424; Johnson v. Armstrong, 97 Ala. 731, 735, 12 So. 72. The state of the law in this relation,...