Green v. State, 6 Div. 922

Decision Date07 January 1937
Docket Number6 Div. 922
Citation171 So. 643,233 Ala. 349
PartiesGREEN v. STATE.
CourtAlabama Supreme Court

Rehearing Denied Jan. 14, 1937

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Tom Green was convicted of murder in the second degree and he appeals.

Reversed and remanded.

George Ross, of Bessemer, and Horace C. Wilkinson, of Birmingham for appellant.

A.A Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

ANDERSON Chief Justice.

The appellant questions several rulings of the trial court with reference to the legality of the grand jury finding the indictment and the venire by which he was tried. Counsel, in effect, concede that the rulings of the trial court substantially conformed to the "Robinson Jury Law" Gen.Acts 1932, Ex. Sess., p. 89, but vigorously argue that said act is invalid as violative of several constitutional provisions. It is sufficient to suggest that the validity of this act was upheld by the Court of Appeals in the case of Dixon v. State, 232 Ala. 150, 167 So. 349. This court not only denied the certiorari in said case, but expressly approved the opinion of the Court of Appeals, 167 So. 340.

The State introduced as its witness Will Dowdell, a nephew of the deceased, an eyewitness to the killing. The trial court subsequently permitted the State to introduce in evidence the entire transcript of the evidence of this witness before Judge Abernathy upon the preliminary trial. This was patently improper and illegal. It is well established by the decisions of this court that a party cannot offer previous statements or testimony of his own witness for the purpose of bolstering or corroborating his testimony. Long v. Whit, 197 Ala. 271, 72 So. 529, and cases there cited. True, defendant's counsel, upon cross-examination of the witness, Will Dowdell, asked him several questions relating to his testimony before Judge Abernathy for the purpose of impeachment, but the trial court sustained the objection to one of them and one of them was of no importance. The only one that amounted to a predicate for impeachment was the fact that he testified before Judge Abernathy that he was "out on a strike." Witness could not remember, and this was equivalent to a denial for impeachment purposes. Henson v. State, 120 Ala. 316, 25 So. 23; Brown v. State, 79 Ala. 61; Payne v. State, 60 Ala. 80. The defendant, however, did not follow this up by introducing the testimony before Judge Abernathy, or any portion of same, and, in this regard, the witness was in nowise impeached and there was no excuse in reason or law for the introduction of the transcript of Will Dowdell's evidence before Judge Abernathy by the State.

As to so much of the argument of the solicitor that stated "that this Captive Mine Brotherhood proposition was something that the company, that the big boys of that corporation was interested in," we think that the corporation or company so referred to could only...

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15 cases
  • Burns v. State
    • United States
    • Alabama Supreme Court
    • June 15, 1944
    ... 19 So.2d 450 246 Ala. 135 BURNS v. STATE. 6 Div. 186. Supreme Court of Alabama June 15, 1944 ... Rehearing ... 64, 167 So. 340, cert. den. 232 ... Ala. 150, 167 So. 349; Green v. State, 233 Ala. 349, ... 171 So. 643; Dyer v. State, 241 Ala. 679, ... ...
  • May v. State, 8 Div. 749
    • United States
    • Alabama Court of Appeals
    • February 28, 1950
    ...authorities treat the matter of instant concern. Couch et al. v. Hutcherson, 243 Ala. 47, 8 So.2d 580, 141 A.L.R. 697; Green v. State, 233 Ala. 349, 171 So. 643; Brown v. State, 27 Ala.App. 32, 165 So. 405; Nichols v. State, 27 Ala.App. 435, 173 So. 652; King v. State, 24 Ala.App. 267, 134 ......
  • Edwards v. State
    • United States
    • Alabama Supreme Court
    • March 3, 1966
    ...19 Ala.App. 229, 96 So. 644; Raines v. State, 147 Ala. 691, 40 So. 932; Weaver v. State, 33 Ala.App. 207, 31 So.2d 593; Green v. State, 233 Ala. 349, 171 So. 643; Bigham v. State, 203 Ala. 162, 82 So. 192.' Lawson v. State, 36 Ala.App. 438, 440, 57 So.2d 643, We think it clear that the cour......
  • Clark v. State
    • United States
    • Alabama Court of Appeals
    • June 29, 1951
    ...testimony at the trial. She stated that she did not remember. For impeachment purposes, this was equivalent to a denial. Green v. State, 233 Ala. 349, 171 So. 643. Refused The general affirmative charges have had our attention. Charges 7-A and 16 were covered by given written instructions. ......
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