Carter v. State

• Decision Date: 26 January 1933
• Docket Number: 4 Div. 664.
• Citation: 226 Ala. 96,145 So. 814
• Parties: CARTER v. STATE.
• Court: Alabama Supreme Court

145 So. 814

226 Ala. 96

CARTER v. STATE.

4 Div. 664.

Supreme Court of Alabama

January 26, 1933

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Lee alias Bo Lee, Carter was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

ANDERSON C.J., and GARDNER, J., dissenting.

Walters & Walters, of Troy, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.

FOSTER J.

Appellant was convicted of murder in the first degree. On the trial Barney Berry was a witness for the state and testified to the commission of the offense by appellant. Appellant undertook to impeach this witness by proving his bad character. Ab Watkins was such an impeaching witness. The substance of his testimony was that he knew, or thought he knew, the character of the aforesaid state's witness in the community where he was then living; but that his information did not extend prior to the commission of the crime to which Barney Berry had testified; that he had recently moved into the community, and witness, Watkins, had not heard much about him until after the alleged crime; but that he knew or thought he knew the character of Barney Berry from what he had heard since then and that it was bad, and bad for truth and veracity, and that he would not believe him on oath. After such testimony was given, the court sustained the motion of the state to exclude it.

It is not objectionable because he stated that he "thinks" he knows the character of the witness. White v. State, 114 Ala. 10, 22 So. 111; Collins v. State, 3 Ala. App. 64, 65, 58 So. 80; Mancil v. State, 21 Ala. App. 588, 110 So. 320; Fuller v. State, 22 Ala. App. 652, 119 So. 594.

The time to which the character of the witness relates when its object is impeachment is at the time of the trial and prior thereto. Boyette v. State, 215 Ala. 472, 110 So. 812; 40 Cyc. 2597; 28 R. C. L. 632.

A different rule obtains with respect to the character of the defendant in a criminal case, when such character is properly in issue, and unless he has testified as a witness. If he has not so testified, the inquiry is limited to the time of the alleged crime. If he has testified, impeaching character evidence extends to the time of trial. Johnson v. State, 203 Ala. 30, 81 So. 820; Smith v. State, 197 Ala. 193, 72 So. 316; Charley v. State, 204 Ala. 687, 87 So. 177; Windom v. State, 18 Ala. App. 430, 93 So. 79.

The motion to exclude the evidence of this witness did not assign any ground. Since it was sustained the rule requires us to determine whether it was subject to any valid objection. Feore v. Trammel, 213 Ala. 293, 104 So. 808; L. & N. R. R. Co. v. Fleming, 194 Ala. 51, 69 So. 125.

We have treated the only two aspects of such evidence which seem to present any plausible ground of objection, and find that it was not subject to either of them. There was error in this ruling.

There are many other exceptions noted in the record. We do not think any useful purpose could be accomplished by discussing them. They are either such as are not likely again to occur or are palpably without merit.

All the justices concur in the foregoing discussion. But ANDERSON, C.J., and GARDNER, J., are of the opinion that the judgment should not be reversed for reasons which they will discuss.

THOMAS, BOULDIN, BROWN, and KNIGHT, JJ., concur with the writer that the judgment should be reversed on account of the error.

In Holland v. Barnes, 53 Ala. 83, 25 Am. Rep. 595, this court had before it that exact question, and held that because five other witnesses testified as to such character it did not cure the error. While in Maxwell v. State, 129 Ala. 48, 29 So. 981, the court held there was a right to limit cumulative evidence of character for being dangerous, etc., in view of the fact that such character was not disputed.

We admit the soundness of the rule that, when an issue is not disputed and is proven by the uncontradicted testimony, the court may cut off a further accumulation of the same sort of evidence. We also think that the court may exercise a reasonable discretion in the limitation upon the number of character witnesses. 22 Corpus Juris 479.

But in this case the ruling of the court was not an exercise of such discretion. There had been only two character witnesses examined when his testimony was offered. It is apparent that it was excluded for other reasons than a limitation on the number of such witnesses, because the court afterwards permitted the examination of three other character witnesses. We do not think it is the province of a court to select a certain character witness and say that he cannot be examined and permit the examination of others. The court did not so rule apparently in this case, yet the opinion of the minority seems to justify such a course. It may be that such evidence of this witness was of peculiar value to defendant, and that the jury may not have accepted the evidence of the other witnesses. Allen v. State, 146 Ala. 61, 41 So. 624.

We do not think that the rule which permits the court to cut off further...