Ex parte State, 6 Div. 409

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation74 So. 366,199 Ala. 255
PartiesEx parte STATE. v. STATE. JOHNSON
Decision Date21 December 1916
Docket Number6 Div. 409

74 So. 366

199 Ala. 255

Ex parte STATE.

JOHNSON
v.
STATE.

6 Div. 409

Supreme Court of Alabama

December 21, 1916


Rehearing Denied Feb. 15, 1917

Certiorari to Court of Appeals.

G.O. Johnson was convicted of violating the prohibition law, and he appealed to the Court of Appeals, which reversed and remanded (72 So. 561), and the State petitions for certiorari. Writ granted, and judgment of the Court of Appeals reversed.

Sayre, J., dissenting.

W.L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

L.D. Gray, of Jasper, for appellee.

THOMAS, J.

One Johnson was convicted of violating the prohibition law. On the trial the defense introduced a witness who testified to defendant's good character. On the cross-examination of this witness, over the objection and exception of the defendant, the state's counsel was permitted to ask the witness if he had not been recently convicted of the offense for which the defendant was on trial. The witness answered: "Twice--city court and circuit court." For this ruling the Court of Appeals has reversed the trial court and remanded the cause.

1. The latitude allowed upon the cross-examination of a character witness was considered by this court in Carson v. State, 128 Ala. 60, 29 So. 609, where the rule was thus stated:

"Much latitude is allowed upon cross-examination of a witness as to character, even sometimes to the extent, within the sound discretion of the trial court, of asking questions which may call for irrelevant evidence. This for the purpose of testing the accuracy, credibility and sincerity of the witness. As to how a witness makes up his estimate of character is a proper subject of inquiry upon cross-examination."

In Cox v. State, 162 Ala. 68, 50 So. 399, Chief Justice Dowdell again said:

"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."

This court is committed to the doctrine that the trial court will not be reversed, except in an extreme case of abuse of this discretion, for permitting the cross-examination of a witness on irrelevant and immaterial matters, to test his memory or accuracy, credibility, interest, or sincerity; interpreting the tendency of modern practice to be favorable to great latitude in this regard. Marler v. State, 68 Ala. 580; Cox v. State, supra; Ingram v. State, 67 Ala. 67; Burger v. State, 83 Ala. 36, 3 So. 319; Lowman v. State, 161 Ala. 47, 50 So. 43. It is evident that in this cross-examination there was no abuse of discretion by the trial court.

2. The testimony was admissible as having a tendency to show the bias or interest of the witness in favor of the cause or the person on trial. Underhill on Cir.Ev. § 222; Cook v. State, 152 Ala. 66, 44 So. 549; Patton v. State, 72 So. 401; Bullington v. State, 13 Ala.App. 61, 69 So. 319. In McCormack v. State, 133 Ala. 202, 207, 32 So. 268, 269, the court said:

"The interest of a witness in the cause may always be shown as affecting the credibility of his testimony. It was doubtless upon this theory that the solicitor was permitted on cross-examination of Woodward, the proprietor of the Palace Saloon and the employer of the defendant, to ask him if a prosecution was not pending against him for the same offense."

Mr. Wigmore defines three different kinds of emotion constituting untrustworthy partiality, viz.:

"Bias, interest, and corruption. Bias, in common acceptance, covers all varieties of hostility or prejudice against the opponent personally, or of favor to the proponent personally. Interest signifies the specific inclination which is apt to be produced by the relation between the witness and the cause at issue."

In 40 Cyc. 2658, the text laying down that "a mere interest in the question involved in a suit may affect the credibility of a witness, although he has no interest in the event of that particular suit," is supported by authority. In the case of Dodge v. Hedden (C.C.) 42 F. 446, it was held that:

"In weighing the testimony of witnesses as to trade usage, the jury should consider the extent to which any of the witnesses may have an interest in the result of the litigation which might color their evidence."

So, also, independently of any prejudice or feeling as to the parties, the feeling of a witness in respect to the case which is being tried may be brought out to affect his credibility. State v. Sam, 53 N.C. 150; Cambeis v. Third Ave. R. Co., 1 Misc.Rep. 158, 20 N.Y.Supp. 633.

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36 practice notes
  • Knowles v. Blue, 3 Div. 598.
    • United States
    • Supreme Court of Alabama
    • January 18, 1923
    ..."Mr. Knowles," were proper in the effort to show bias or interest, however slight such tendency may be. Johnson v. State, 199 Ala. 255, 74 So. 366; Banks v. State (Ala. Sup.) 39 So. 921; 40 Cyc. 2489. No appropriate assignment of error challenges the correctness of the trial court......
  • Anderson v. State, 6 Div. 481.
    • United States
    • Alabama Supreme Court
    • November 2, 1922
    ...information, source of knowledge, bias, etc., in the testimony given as to the defendant's character. Ex parte State (Johnson v. State) 199 Ala. 255, 74 So. 366. [95 So. 178] In the instant case the defendant did not testify, and the questions to which objections were made and sought to be ......
  • Feore v. Trammel, 1 Div. 313
    • United States
    • Supreme Court of Alabama
    • December 18, 1924
    ...of bias or prejudice was the subject of discussion in Stahmer v. State, 125 Ala. 72, 27 So. 311; Ex parte State (Johnson v. State), 199 Ala. 255, 74 So. 366. There was no error in the cross-examination of the witness J.P. Wilson, testing the bias or the accuracy of his evidence. It was comp......
  • Adler v. Miller, 6 Div. 479.
    • United States
    • Supreme Court of Alabama
    • June 7, 1928
    ...was competent, when the inquiry was limited for consideration of the jury to bias or interest. Ex parte State, In re Johnson v. State, 199 Ala. 255, 258, 74 So. 366, and authorities. In such inquiry a witness' social and business relations with the party, his intimacy or hostility, and such......
  • Request a trial to view additional results
36 cases
  • Knowles v. Blue, 3 Div. 598.
    • United States
    • Supreme Court of Alabama
    • January 18, 1923
    ..."Mr. Knowles," were proper in the effort to show bias or interest, however slight such tendency may be. Johnson v. State, 199 Ala. 255, 74 So. 366; Banks v. State (Ala. Sup.) 39 So. 921; 40 Cyc. 2489. No appropriate assignment of error challenges the correctness of the trial court......
  • Anderson v. State, 6 Div. 481.
    • United States
    • Alabama Supreme Court
    • November 2, 1922
    ...information, source of knowledge, bias, etc., in the testimony given as to the defendant's character. Ex parte State (Johnson v. State) 199 Ala. 255, 74 So. 366. [95 So. 178] In the instant case the defendant did not testify, and the questions to which objections were made and sought to be ......
  • Feore v. Trammel, 1 Div. 313
    • United States
    • Supreme Court of Alabama
    • December 18, 1924
    ...of bias or prejudice was the subject of discussion in Stahmer v. State, 125 Ala. 72, 27 So. 311; Ex parte State (Johnson v. State), 199 Ala. 255, 74 So. 366. There was no error in the cross-examination of the witness J.P. Wilson, testing the bias or the accuracy of his evidence. It was comp......
  • Adler v. Miller, 6 Div. 479.
    • United States
    • Supreme Court of Alabama
    • June 7, 1928
    ...was competent, when the inquiry was limited for consideration of the jury to bias or interest. Ex parte State, In re Johnson v. State, 199 Ala. 255, 258, 74 So. 366, and authorities. In such inquiry a witness' social and business relations with the party, his intimacy or hostility, and such......
  • Request a trial to view additional results

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