Johnson v. State

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 978
• Citation: 15 Ala.App. 75,72 So. 561
• Parties: JOHNSON v. STATE.
• Court: Alabama Court of Appeals

72 So. 561

15 Ala.App. 75

JOHNSON v. STATE.

6 Div. 978

Court of Appeals of Alabama

June 30, 1916

On Rehearing, August 1, 1916

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

G.O Johnson was convicted of illegally selling liquor, and appeals. Reversed and remanded.

Gray & Wiggins, of Jasper, for appellant.

William L. Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty Gen., for the State.

BROWN J.

The fact that the sheriff had, on occasions previous to the raid in which whisky was found at the defendant's livery stable, visited the stable at the defendant's request was wholly immaterial to any issue in the case. If in fact the defendant kept liquors at his stable for sale in violation of the law, it is not reasonable to assume that he would request the sheriff to visit and inspect the place when there was a stock of liquors on hand. The acts, declarations, and demeanor of the accused before the offense are not admissible in his behalf unless they are a part of the res gestae. Jones v. State, 181 Ala. 78, 61 So. 434. If however, the accused makes a statement or utters an exclamation which is spontaneous, and which is connected with the incidents of a criminal transaction and explanatory of it, it may be received though it is in his favor. Underhill on Evidence, § 99; Liles v. State, 30 Ala. 24, 68 Am.Dec. 108. Under this rule, the state having offered a part of the conversation between the sheriff and the defendant at the time of the raid, the defendant was entitled to bring out all that was said between them at the time; and on cross-examination of the witness Gray, he testified fully to the conversation, stating that the defendant told him, in substance, that he was glad that he (the sheriff) came down and got the stuff; that defendant helped to remove the whisky to the sheriff's office, The testimony on this point was not disputed, and the ruling of the court, sustaining an objection to the question to the witness Shores, eliciting testimony as to this fact, was error without injury. Chandler v. State, 12 Ala.App. 287, 68 So. 536.

The defendant examined several witnesses who testified to his general good character, and that he did not have the general reputation of "a liquor seller." After the defendant had made these phases of his general character an issue, it was competent for the state to show that his reputation in these respects was bad. Mitchell v. State, 70 So. 991; Cauley v. State, 92 Ala. 71, 9 So. 456; Cox v. State, 69 So. 240.

The state was allowed to show by the witness Creel, who had testified to the defendant's general good character, and that he did not bear the reputation of "a liquor seller" that the witness had recently before giving his testimony been convicted of a like offense to that for which the defendant was on trial. McCormack v. State, 133 Ala. 202, 32 So. 268; Cox v. State, supra; 40 Cyc. pp. 2658, 2665. The range of external circumstances from which probable bias may be inferred is almost infinite, and accurate, concrete rules are almost impossible of formulation to meet the exigencies of every case; and for this reason great latitude in the cross-examination of witnesses for the purpose of showing bias, interest, or prejudice must be left to the enlightened discretion of the trial court; and, as said in one of our cases:

"The tendency of modern practice seems favorable to great latitude *** in this regard." Marler v. State, 68 Ala. 580. "Hence it must be a strong case to justify a reversal for allowing too great latitude in cross-examination." Cox v. State, 162 Ala. 66, 50 So. 398; Ingram v. State, 67 Ala. 67; Burger v. State, 83 Ala. 39, 3 So. 319; Lowman v. State, 161 Ala. 47, 50 So. 43; 2 Wigmore's Evidence, § 945.

In the opinion of the writer, the record here shows no abuse of the discretion.

We find no error in the record, and the judgment of the trial court is affirmed.

Affirmed.

On Application for Rehearing by Defendant.

PELHAM, P.J., in which EVANS, J., concurs, BROWN, J., adhering to the original opinion, as amplified by him on this application for rehearing. the record in this case shows that one R.L. Creel, who was a character witness examined on behalf of the defendant as affecting his credibility as a witness, was required by the court, over the duly interposed objections and exceptions reserved on behalf of the defendant, to answer questions eliciting the fact that he had been recently convicted of the offense of selling liquor. After the defendant's counsel had, on proper and specifically stated grounds, objected to the question calling for this testimony from the witness, and had moved to exclude the answer, the court, against further duly interposed objection by the defendant, based upon proper grounds, permitted the state to pursue the inquiry further and show by the cross-examination of the witness that he had been twice convicted of selling liquor--once in the city court and once in the circuit court.

I entertain the opinion that the court committed error for which the case should be reversed in permitting the state, against the well-interposed and repeated objections of the defendant's counsel, on proper and specific grounds pointing out its infirmity to introduce in evidence this illegal testimony, showing that the witness had been convicted of certain misdemeanors, as affecting his credibility as a witness. It is well settled that such proof is not proper as affecting the credibility of the witness, or for any other purpose. Gordon v. State, 140 Ala. 29, 39, 36 So. 1009; Smith v. State, 129 Ala. 89, 29 So. 699, 87 Am.St.Rep. 47. Although great latitude is allowed on cross-examination, the court should confine it within proper bounds, and it was beyond the legitimate scope of cross-examination for the court to permit the witness to be asked if he had not himself been guilty of selling whisky. Smith v. State, 161 Ala. 94, 49 So. 1029; Smith v. State, 159 Ala. 68, 48 So. 668.

Application for rehearing granted. Judgment of affirmance set aside. Reversed and remanded.

On Rehearing by the State.

In both of the cases of Smith v. State, 161 Ala. 94, 49 So 1029 and Smith v. State, 159 Ala. 68, 48 So. 668, the defendants were convicted of violating the laws prohibiting the sale of liquors, and sought to reverse the judgments of the trial courts because the courts refused to allow the defendant to show that witnesses for the state had been guilty of making illegal sales--not convicted--and in each of those cases it was held error was not shown, and the judgments were affirmed. There is no conflict between these cases and the first opinion of the writer as amplified, holding that a judgment will not be reversed for extending the cross-examination to such matters. Furthermore, in these cases, it was the state's witnesses that were being cross-examined, and the fact of the witness being guilty of a like offense too that for which the defendant was on trial would have a tendency to show interest in favor of the defendant, rather than bias against him; hence the ruling of the court that such evidence was wholly irrelevant, it not being permissible for the defendant to show that the state's witnesses are in sympathy with him. Independent of the question of the matter being within the sound discretion of the trial court on the principle stated in the authorities cited in the original opinion, and especially the recent case of Cox v. State, 162 Ala. 66, 50 So. 398, the writer is of the opinion that the evidence of the conviction of the witness for a violation of exactly the same character was admissible on other grounds: (1) The defendant, as he had a right to do, had put his character in issue to the extent of showing that it was not bad for selling liquor in violation of law. The witness had been called by the defendant to prove his good character in this respect, and had testified that it was good. The fact that the witness had been engaged in the same unlawful...