Green v. State
Decision Date | 15 September 1955 |
Docket Number | 6 Div. 913 |
Citation | 82 So.2d 418,263 Ala. 324 |
Parties | Claud GREEN v. STATE of Alabama. |
Court | Alabama Supreme Court |
The following charges were refused to defendant:
Tweedy & Beech, Jasper, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
The appeal is from a conviction of murder in the first degree, with punishment fixed at imprisonment for life.
This is the second appeal. We reversed the first conviction. Green v. State, 258 Ala. 471, 64 So.2d 84.
It is unnecessary to set out here the tendencies of the evidence for the State and for the defendant. Suffice it to say that the evidence found in the record on the present appeal is substantially the same as that set forth in the former opinion.
As shown in the former opinion, the evidence connecting the defendant with the perpetration of the horrible crime was purely circumstantial, but it clearly presented a case for the jury's consideration and, in fact, it is not contended otherwise in the brief filed here on behalf of appellant by the able counsel who also represented him below. There is no argument made that the verdict was contrary to the great weight of the evidence and, indeed, no such argument would be appropriate since there was no motion for a new trial and the case is not governed by the Automatic Appeal Act. Collins v. State, 250 Ala. 58, 33 So.2d 18. Cf. Broadway v. State, 257 Ala. 414, 60 So.2d 701; Easley v. State, 246 Ala. 359, 20 So.2d 519.
On the first trial of the case Roy Posey, who was the Sheriff of Winston County at the time the crime was committed, was examined as a witness on behalf of the State. During his cross-examination the State's objection was sustained to a question seeking to determine whether he heard any of a group of men who were searching for the defendant after the homicide 'say they were going to shoot him on sight, and take him dead or alive.' Also the trial court would not permit the witness to answer questions propounded to him on cross-examination as to whether one Clarence Spain had told him after the killing that he was looking for the defendant and was going to shoot him on sight. Clarence Spain was a witness for the State on the first trial and lived in the community where the killing took place. The trial court also sustained the State's objections to several questions asked this witness on cross-examination concerning his movements and those of some of his deputies on a day about a week prior to the day of the killing in the community where the crime was committed. The cross-examination of this witness in all other respects on the first trial appears to have been full and complete.
We reversed the first conviction because of the cumulative effect of several erroneous rulings made by the trial court in the exclusion of evidence which the defendant sought to introduce. However, the rulings made during the examination of Sheriff Posey were not among those treated in the opinion written on the first appeal. But one of the rulings which we held to be erroneous was the sustaining of the State's objection to questions propounded by counsel for defendant on the direct examination of a witness whose name is not set out in the opinion, Hewett Bell, which questions sought to establish the fact that Clarence Spain, a witness for the State on that trial, told certain persons after the killing that he was going to 'shoot the defendant on sight' and 'bring him in dead or alive.'
Roy Posey was dead at the time of the trial here under review and over the strenuous objection of the defendant, the trial court permitted the State to introduce in evidence his testimony given on the first trial.
The defendant argues that he did not have a full opportunity to cross-examine the witness Roy Posey on the first trial, being denied the right to have answered the questions to which we referred above, and that for this reason the trial court committed reversible error in permitting the State to introduce in evidence the testimony given by Roy Posey on the first trial.
It is the rule that before the testimony of a witness given on a former trial is admissible, it must appear that on the former trial the absent witness was cross-examined or a full opportunity afforded for cross-examination by the party against whom the testimony is offered. Floyd v. State, 82 Ala. 16, 2 So. 683; Pruitt v. State, 92 Ala. 41, 9 So. 406; Thompson v. State, 106 Ala. 67, 17 So. 512; Blanks v. State, 30 Ala.App. 519, 8 So.2d 450; Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837; McElroy, The Law of Evidence in Alabama, pp. 91-92.
The defendant was not denied the right of cross-examination by the action of the trial court in sustaining the State's objection to questions asked Sheriff Posey on cross-examination as to whether or not he stopped his car and let some one out at or near the home of the deceased approximately a week prior to the date of the killing. As far as the trial court was advised and as far as we can determine, those questions called for irrelevant and immaterial testimony.
Clarence Spain did not testify at the trial here under review. Hence the defendant cannot now complain of the rulings of the trial court on the first trial which prevented Sheriff Posey from answering the questions propounded to him concerning statements alleged to have been made by Clarence Spain. In the opinion on the former appeal, we indicated that testimony of that character was admissible for the purpose of showing Spain's feeling towards the defendant and thereby shedding light on the credibility of Spain's testimony.
It was fully developed by other evidence in the case that after it became known that the defendant was under suspicion a search for him was conducted by a large group of men composed of officers and individuals who lived in the community and that threats against the defendant were made by members of that group. Therefore the trial court did not err to reversal in admitting in evidence the testimony of Sheriff Posey given on the first trial, although he was not permitted on that trial to testify that the members of the searching party threatened to take the defendant dead or alive. Harwell v. State, 12 Ala.App. 265, 68 So. 500, certiorari denied 192 Ala. 689, 68 So. 1019. We are of the opinion that the trial court did not err to a reversal in admitting in evidence the testimony given by Sheriff Posey at the first trial.
C. D. Brooks, a State Toxicologist, was a witness for the prosecution. On direct examination he stated that in the course of his investigation of the crime he was given a stick 'to make an examination of.' As to how he got possession of the stick the witness testified: The witness testified as to the condition of the stick and the nature of the substances found thereon. On direct examination the witness was not interrogated in any manner concerning any clothing of the defendant.
On cross-examination the witness C. D. Brooks stated that he had examined a pair of overalls which were...
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