Hall v. State, 6 Div. 720.

• Decision Date: 19 August 1930
• Docket Number: 6 Div. 720.
• Citation: 24 Ala.App. 75,130 So. 531
• Parties: HALL v. STATE.
• Court: Alabama Court of Appeals

130 So. 531

24 Ala.App. 75

HALL v. STATE.

6 Div. 720.

Court of Appeals of Alabama

August 19, 1930

Rehearing Dismissed Oct. 7, 1930.

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Eurgust alias Ergust, alias Ernest, Hall was convicted of manslaughter in the first degree, and he appeals.

Reversed and remanded.

Robert B. Harwood, of Tuscaloosa, and Ross, Baumgardner, Ross &amp Ross, of Bessemer, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

This appellant admittedly killed David Burton, the deceased named in the indictment, by shooting him with a pistol. He was indicted for this act and charged with murder in the first degree. This trial resulted in his conviction, by the jury of manslaughter in the first degree and punishment fixed at imprisonment for ten years. Judgment of conviction was accordingly pronounced and entered, and he was duly sentenced to imprisonment in the penitentiary for ten years, and appealed.

The accused depended upon self-defense to justify his having thus killed the deceased, and upon the trial a large number of witnesses, both for the state and for the defendant, were examined. The evidence as to the details and circumstances attending the killing were in conflict and presented jury questions.

Pending the trial numerous exceptions were reserved to the court's rulings upon the admission of evidence. In the main these exceptions are without merit and cannot be sustained. No good purpose can be subserved by writing to each of these exceptions, and we refrain from so doing.

The killing of deceased by appellant being admitted, all the facts and circumstances attending the homicide or leading up thereto were of special importance in ascertaining whether or not the accused acted in self-defense; and we are of the opinion that the principal inquiry under the evidence here involved the question as to whether or not this appellant was free from fault in bringing on the difficulty, or contributed to the situation from which the difficulty arose. The tendency of the state's evidence was to the effect that this appellant was either the aggressor, or fought willingly, or that he did contribute to the situation out of which the difficulty arose resulting in the homicide complained of. The insistence of the defendant was to the contrary; his contention was that without any fault upon his part the difficulty was forced upon him by the deceased, and others acting in concert with him, and, in order to sustain this insistence, he introduced as a witness, in fact his most material witness, Mrs. Richard Gwin, who testified she was an eyewitness to the whole difficulty, and was sitting in a car with her two small children, in close proximity to where it occurred. The evidence disclosed that she was in no manner related to the defendant and was entirely and wholly disinterested. On the cross-examination of this witness by the state's attorneys, over the objections and exceptions of defendant, strenuous efforts were indulged to impair the testimony given by this witness and several insistent attempts to unduly derogate the evidence given by her. This court, sitting en banc, has given careful consideration to the points of decision here involved, and have reached the conclusion that prejudicial error prevailed in the court's rulings in this connection. The rule allowing wide latitude upon cross-examination of an adverse witness is not without limitation. The accused was entitled to the testimony of this witness without illegal impairment, and the court by its rulings permitted the state to extend its inquiry to matters wholly foreign to the issues involved. This examination which, by its rulings, met the approval of the court, had the tendency to cast undue opprobrium upon the witness and to place her in an improper and prejudicial light before the jury, resulting in undue and improper reflection upon the witness necessarily lessening the weight or probative force of her testimony. The elementary rules of evidence permit a part to show interest, bias, etc., of an adverse witness, but resort to illegal methods as here indulged is never allowable. One of the questions thus propounded by the solicitor is as follows: "Q. At various times from the night of the killing; at various times from the time that Hall's brother saw you down there in that settlement after, the Sunday after the shooting, or the Saturday morning after the shooting, you made your brag to different people that you were on the money side of this case, haven't you?" The objection interposed to the foregoing question should have been sustained; it assumed that Hall's brother saw witness down in the settlement. Moreover, if the question propounded sought to lay a predicate for the impeachment of the witness, it was insufficient and too indefinite to apprise the witness of the matter inquired about, also as to time, place, and those present. The next question was equally objectionable and injurious, to wit: "Q. You have it in for Preacher Burton and Wilson Gilbert and the good citizens out there ever since they brought about the conviction of your husband for making whisky and sent him to the penitentiary?" These inquiries and others of like import, upon the cross-examination of defendant's principal witness Mrs. Gwin, as stated, met the approval of the court by its several rulings. They were highly improper, and the rulings complained of constituted error to a reversal.

In Brasher v. State, 22 Ala. App. 79, 112 So. 535, 536 this court said: "Derogation of an adverse witness and the evidence given by him should not be attempted or indulged by resort to illegal method of practice. The solicitor must have known that this character of impeachment is not allowed or authorized by any rule of evidence known to the law. Its only effect, was to produce an unfavorable impression of the witness before the jury, and thereby, in this unauthorized manner, lessen the weight of the witness'...