Coppin v. State

• Decision Date: 15 June 1899
• Citation: 123 Ala. 58,26 So. 333
• Parties: COPPIN v. STATE.
• Court: Alabama Supreme Court

26 So. 333

123 Ala. 58

COPPIN v. STATE.

Supreme Court of Alabama

June 15, 1899

Appeal from circuit court, Lauderdale county; James J. Banks, Judge.

Bill Coppin was convicted of living in adultery with Polly Brock and appeals. Reversed.

The appellant was jointly indicted. On motion, there was a severance, and each of the defendants was tried separately. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. There were several exceptions reserved to the trial court's overruling the defendant's objection to testimony on the part of the state's witnesses. As shown by the bill of exceptions, none of the objections on the part of the defendant were interposed until after the witnesses had, in each instance, testified to facts objected to. There was no objection, as shown by the bill of exceptions, to the question eliciting the testimony objected to. The defendant introduced witnesses who testified about his general good character. The bill of exceptions then contains the following recital: "During the progress of the argument, the solicitor commented on the fact that Polly Brock, one of the defendants, had failed to testify, and that, if defendant had not been meeting her in the woods, she could have shown it. To this the defendant objected and excepted, and asked the court to instruct the jury that the failure of the defendant Polly Brock to testify could not be commented upon; but the court refused to sustain the exception of the defendant and to so instruct the jury, and to this action of the court the defendant then and there in open court duly excepted." The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The good character of the defendant, in connection with the other evidence in the cause, is sufficient to generate a doubt, which may acquit the defendant." (2) "The failure of one of the defendants, or both, to testify, cannot be considered to their disadvantage, or be commented on by counsel." (3) "If the jury believe the evidence they will find the defendants not guilty." The cause was tried before the Honorable J. J. Banks, but before the preparation of the bill of exceptions the term of the Honorable J. J. Banks as circuit judge had expired, and, not having been reelected, he declined to sign the bill of exceptions, being without authority thereto. In this court the defendant moved to re-establish the bill of exceptions setting out in his motion the facts just stated, and submitting with said motion the affidavit of counsel that the facts were true.

Emmett O'Neal, for appellant.

Chas G. Brown, Atty. Gen., for the State.

TYSON J.

The authority of the judge who tried the case to sign the bill of exceptions terminated with the expiration of his term of office. By express provision power is conferred upon this court to establish a bill of exceptions where the judge who presided at the trial of the cause dies, resigns, or is impeached, or if the term of his office expires within the time allowed by an order of the court in which the bill may be signed in vacation. Code, § 622. The bill of exceptions in this case was filed with the clerk of the circuit court within the time prescribed by the order of the court, and there is no dispute as to its correctness. The motion to establish it is granted.

The method adopted by defendant's counsel, in waiting until after the witness had fully deposed to all the facts within his knowledge, and, doubtless, elicited by questions to which answers were responsive, and then moving to exclude either the whole of the witness' testimony or parts of it, is not to be commended as the proper practice to reserve exceptions. He should not, and cannot be allowed to, permit without objection, his adversary to propound questions, elicit responsive answers from the witness, and then, after the witness has been discharged, move to exclude the testimony in its entirety, or a portion of it, and procure a reversal of the cause in the event of a conviction, should any fact disclosed in the testimony of the witness be illegal or irrelevant to the issue. This is the wildest sort of speculation, and finds no lodgment in fair or impartial judicial proceedings. Billingsley v. State, 96 Ala. 126, 11 So. 409; McCalman v. State, 96 Ala. 98, 11 So. 408; Traylor v. State, 100 Ala. 142, 14 So. 634. This doctrine is no wise impinges the general rule that the "court may exclude illegal testimony at any stage of the trial." 1 Brick. Dig. 887, § 1190. There is some want of harmony in our decisions upon this point, but the true rule seems to us to be that, if the question asked seeks to elicit illegal or irrelevant testimony, and the answer is responsive, and the party against whom it is offered makes no objection, this is one of the exceptions to the general rule. In other words, the general doctrine is limited in its application to that class of cases where illegal testimony is offered against a party without his fault, or...