Cox v. State

• Decision Date: 30 June 1909
• Parties: COX v. STATE.
• Court: Alabama Supreme Court

50 So. 398

162 Ala. 66

COX v. STATE.

Supreme Court of Alabama

June 30, 1909

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Cris Cox was convicted of publishing a defamatory letter that had a tendency to provoke a breach of the peace, and he appeals. Reversed and remanded.

Dowdell C.J., and Simpson, J., dissenting in part.

The indictment was as follows: "Cris Cox unlawfully and maliciously published of and concerning Lula Thompson, Willie Thompson, Tempy Thompson, and Dolly Thompson the following false, defamatory, and libelous matter in writing, and with the intent to defame the said Lula Thompson, Willie Thompson Tempy Thompson, and Dolly Thompson, to wit: 'Miss Loula Thompson: I heard that you was keeping company with that red-eyed, rotten, clappy Dave Swords. Some say that Dave and his two bastard nephews is as good as the Thompsons. People say that Emiline Thompson and Dave Swords' sister was rotten with the clap. People say that all the Thompsons is got the clap (meaning that Lula Thompson, Willie Thompson Tempy Thompson, and Dolly Thompson, who are sisters, had the clap). They say that the Thompson gals (meaning that the said Lula, Willie, Tempy, and Dolly Thompson) caught the clap from those drummers.' Which said libelous matter had a tendency to provoke a breach of the peace--against," etc. The other letters referred to in the opinion are similar in character to the one set out in the indictment, except that they have reference to all the Thompson family, as well as some others. It is not deemed necessary to set out the charges.

John A Lusk, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL C.J.

A wider latitude is allowable on the cross, than upon the direct, examination of a witness. It is permissible upon a cross-examination, for the purpose of testing the memory, sincerity, etc., of the witness, to interrogate him as to matters wholly irrelevant to the issue in the case. The latitude and extent of such cross-examination, however, is a matter that must, of necessity, rest largely, if not exclusively, within the sound discretion of the trial court, and, so long as that discretion is not abused, the action of the trial court will not be revised on appeal. The refusal of the trial court to permit an extended cross-examination as to irrelevant matters, for the purpose of testing the witness along the lines suggested, cannot be said to be an abuse of discretion, nor denial of the right of a cross-examination, and hence can furnish no just ground of complaint on appeal, to a reversal of the cause. It is within the discretion of the trial court, likewise, ex mero motu, to arrest such a cross-examination whenever in its sound judgment it seems proper to do so. We fail to see that the trial court committed any error, or that there was any abuse of sound discretion, in the rulings upon the cross-examination, by the defendant, of the state's witness, Malam Bishop.

The letter constituting the alleged libel, and described in the indictment, was admissible in evidence in connection with evidence tending to show that it was written by the defendant. While an exception was reserved to the admission of this evidence on the trial, counsel in brief for appellant concedes that there was no error in this ruling and that the letter was properly admitted.

The court erred in admitting in evidence, against the objection of the defendant, the letters designated in the bill of exceptions as Nos. 2, 3, 4, 5, 6, and 7. Each one of these letters constituted a separate and distinct libel, and each another and different offense from the one charged in the...