Houston v. State, 6 Div. 175

CourtAlabama Court of Criminal Appeals
Citation50 Ala.App. 536,280 So.2d 797
Docket Number6 Div. 175
PartiesThomas Jefferson HOUSTON v. STATE.
Decision Date15 May 1973

Page 797

280 So.2d 797
50 Ala.App. 536
Thomas Jefferson HOUSTON
6 Div. 175.
Court of Criminal Appeals of Alabama.
May 15, 1973.
Rehearing Denied June 12, 1973.

[50 Ala.App. 537]

Page 798

Rogers, Howard, Redden & Mills and Robert M. Harper, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.

[50 Ala.App. 538] ALMON, Judge.

Appellant was convicted in Jefferson County Circuit Court of murder in the second degree and sentenced to fifteen years in the penitentiary.

Jerrell Dean Houston, the estranged wife of appellant, died as the result of a gunshot wound she received in the early morning hours of May 25, 1969. On the night of her death, she and a companion, Brenda Johnson, had been barhopping in and around Leeds. Appellant and Lloyd Johnson, the husband of Brenda Johnson, had also been visiting several bars in this same part of Jefferson County. There was evidence that during the evening appellant had become heavily intoxicated.

Sometime around midnight the deceased and Brenda Johnson began following a vehicle driven by appellant and occupied by Lloyd Johnson. Eventually both vehicles stopped and the deceased began driving appellant's vehicle with appellant as passenger. The Johnsons followed them in their own vehicle. Deceased drove to appellant's apartment and, being unable to persuade appellant to go to bed, deceased locked appellant's car, took the keys, and drove off in the Johnson vehicle.

Deceased then drove the Johnson vehicle around the block several times and then returned to the driveway leading to appellant's apartment. Brenda Johnson testified that after deceased parked, both deceased and appellant walked to the rear of the vehicle; that after hearing a shot she ran to the rear also and saw deceased on the ground; and that appellant said he had shot his wife and asked her to call an ambulance. Brenda Johnson further testified that she didn't see anything until after she ran to the rear of the vehicle.

Mr. Carl Phillips testified as a character witness for appellant. He testified both as to the appellant's good general reputation and his good reputation for peace and quiet in the community. On cross-examination the following questions were asked Phillips:

'Q. (BY MR. BOWEN) Mr. Phillips, have you heard or do you know that Mr. Houston was convicted for a felony and given five years in the penitentiary in 1938?

'Q. Do you know, Mr. Phillips, or had you heard, that Mr. Houston was convicted of a felony of distilling in the federal court in 1938 and sentenced to five years?

'Q. Do you know that he was arrested for public drunkenness in 1947?

'Q. Let me rephrase the question. Did you know, or have you heard, he was arrested for public drunkenness in 1947?

'Q. Did you know or had you heard he was arrested for driving while intoxicated in 1948?

[50 Ala.App. 539]

Page 799

'Q. Did you know or had you heard he was arrested for reckless driving in 1948?

'Q. Did you know or had you heard of (his) driving while intoxicated in 1949?'

Objections were made and overruled and Phillips was instructed to answer. To each question he responded in the negative.

Able counsel for appellant suggest that the above questions are illegal and improper in two particulars. First, that part of the questions, 'Do you know,' seeks improperly to elicit the witness's personal knowledge of the accused's prior misconduct. We agree. A character witness may be cross-examined as to whether he has knowledge of the circulation of derogatory rumors or hearsay concerning the character of the accused; but, the character witness's personal knowledge of specific misdeeds is not subject to inquiry on cross-examination. Robinson v. State, 44 Ala.App. 206, 205 So.2d 524; Johnson v. State, 260 Ala. 276, 69 So.2d 854. Numerous decisions have approved questions where the character witness was asked if he had 'heard of' specific acts of misconduct by the accused; however, such testimony is admissible only as bearing on the credibility of the character witness and not as substantive evidence of the character of the accused. Mullins v. State, 31 Ala.App. 571, 19 So.2d 845; Aaron v. State, 271 Ala. 70, 122 So.2d 360; Baldwin v. State, 282 Ala. 653, 213 So.2d 819. Similarly, other decisions point out that the use of the words 'Do...

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9 cases
  • Travis v. State, 1 Div. 143
    • United States
    • Alabama Court of Criminal Appeals
    • January 20, 1981
    ...Ala. 70, 122 So.2d 360 (1960); Crowe v. State, Ala.Cr.App., 333 So.2d 902, cert. denied, Ala., 333 So.2d 906 (1976); Houston v. State, 50 Ala.App. 536, 280 So.2d 797, cert. denied, 291 Ala. 784, 280 So.2d 801 (1973); and cases cited therein; 19A Alabama Digest Witnesses In any event, no pre......
  • State v. Watts, 17206
    • United States
    • Supreme Court of Utah
    • December 9, 1981
    ...v. United States, 335 U.S. at 482, 69 S.Ct. at 221. Accord, Segal v. United States, 246 F.2d 814, 820 (8th Cir. 1957); Houston v. State, 50 Ala.App. 536, 280 So.2d 797, cert. den. 291 Ala. 784, 280 So.2d 801 (1973); People v. Wrigley, 69 Cal.2d 149, 70 Cal.Rptr. 116, 127, 443 P.2d 580, 591 ......
  • Wiggins v. State, 4 Div. 712
    • United States
    • Alabama Court of Criminal Appeals
    • April 14, 1987
    ...was harmless. Wyrick v. State, 409 So.2d 969 (Ala.Crim.App.1981); Yates v. State, 390 So.2d 32 (Ala.Crim.App.1980); Houston v. State, 50 Ala.App. 536, 280 So.2d 797 (1973). In addition, we are not convinced that the question was asked in bad faith, as the appellant contends in his brief. Se......
  • Hooper v. State, 3 Div. 473
    • United States
    • Alabama Court of Criminal Appeals
    • October 28, 1986
    ...asked to such a witness should be "have you heard ...?" Wedgeworth v. State, 450 So.2d 195, 196 (Ala.Cr.App.1984). In Houston v. State, 50 Ala.App. 536, 280 So.2d 797 (Ala.Cr.App.), cert. denied, 291 Ala. 784, 280 So.2d 801 (Ala.1973), during the cross-examination of a defense character wit......
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