Forman v. State

• Decision Date: 17 December 1914
• Docket Number: 666
• Citation: 190 Ala. 22,67 So. 583
• Parties: FORMAN v. STATE.
• Court: Alabama Supreme Court

67 So. 583

190 Ala. 22

FORMAN v. STATE.

No. 666

Supreme Court of Alabama

December 17, 1914

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Beauregard alias Bory, Forman was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Percy Benners & Burr, of Birmingham, for appellant.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

The opinion in this case was prepared for the court by DE GRAFFENRIED, J.

The defendant in this case was indicted for, and convicted of murder in the first degree.

At common law, a defendant's general character was not subject to attack by the state until he himself had put his character in issue. Since the adoption of the statute which permits a defendant in a criminal case to take the stand as a witness and testify as such in his case, this court has held that, for the purpose of impeaching his testimony, the state may introduce evidence tending to show his general bad character. A general inquiry, in such a case, into the moral character of the defendant is permissible for the purpose of affecting his credibility as a witness, and for no other purpose. Sweatt v. State, 156 Ala. 85, 47 So. 194; Dolan v. State, 81 Ala. 11, 1 So. 707.

In this case the defendant testified in his own behalf as a witness, but he offered no evidence as to his general character or as to his general character for peace and quiet. This being the situation, the state had no right, against the seasonable objection of the defendant, to offer evidence tending to show that the defendant was a man whose general character for peace and quiet was bad; and in permitting the state, against the seasonable objection of the defendant, to offer this evidence to the jury, the trial court committed reversible error. Sweatt v. State, supra; Dolan v. State, supra.

The state had a right, for the purpose of impeaching the defendant as a witness, to offer evidence tending to show that he was a man whose general character prior to the homicide was, in the community in which he lived, bad; but, as already stated, under the situation of the evidence in this case, it had no right to show that, prior to the homicide, the defendant's general character for peace and quiet was, in the community in which he lived, bad.

1. We deem it wise to direct attention to the fact that in all criminal cases, whenever the character of the defendant becomes the subject of evidence on the part of the state or of the defendant, the evidence as to such character must be limited to the character which the defendant bore in his community prior to the time of the commission of the offense for which he is being tried. The question in all such cases is: What was the general character of the defendant up to the time of the commission of the alleged offense? and not, what was the general character of the defendant on the day of the trial? Robinson v. State, 5 Ala.App. 45, 59 So. 321.

In the instant case the trial court seems to have disregarded the above rule.

2. It is the unquestioned law of this state that no unfavorable inference can be drawn, and no unfavorable argument to a jury made, by counsel against a party to a cause because of the absence of the testimony of a witness in a cause, when that witness is accessible to both parties, and can be introduced by and examined by either party as a witness. Hutcherson v. State, 165 Ala. 16, 17, 50 So. 1027, 38 Am.St.Rep. 17; Du Bose v. Conner, 1 Ala.App. 456, 55 So. 432; Etheridge v. State, 124 Ala. 106, 27 So. 320; Earle v. State, 1 Ala.App. 183, 56 So. 32.

In this case, so the bill of exceptions recites:

The "solicitor, in his closing argument to the jury, made the following argument to the jury: 'Where is Raymond Smith? How do they account for the fact that Raymond Smith did not testify in this case?' "

The defendant seasonably objected to this argument of the solicitor, but the court overruled the objection, and permitted the argument to remain with the jury.

As Raymond Smith was equally accessible to the state and the defendant, and as the state could, if it had seen proper so to do, have used the said Raymond Smith as a witness, the court committed reversible error in not sustaining the defendant's objection to said argument and in not excluding it from the jury. Authorities supra.

3. Charge 7, requested by the defendant, is a copy of a...