Johnson v. State

• Decision Date: 20 May 1915
• Docket Number: 804
• Citation: 13 Ala.App. 140,69 So. 396
• Parties: JOHNSON v. STATE.
• Court: Alabama Court of Appeals

69 So. 396

13 Ala.App. 140

JOHNSON v. STATE.

No. 804

Court of Appeals of Alabama

May 20, 1915

On Rehearing, June 18, 1915

Appeal from Circuit Court, Winston County; C.P. Altman, Judge.

Luther Johnson was convicted of murder, and he appeals. Reversed and remanded.

The facts sufficiently appear. Charge 38 refused the defendant is as follows:

"If there is one fact proven in this case, which one fact is not consistent with the guilt of the defendant, then under the law you must acquit him."

The following exceptions were reserved to the following language of counsel for the state, while addressing the jury:

"His expression like his last act was that of murder." "Why did they go around these poor girls when their father was lying out there dead, and asked them who did it." William Manasco is not here to testify; if he was, he would probably corroborate his two girls." "It appears to me from the logic of the evidence in this case that it was an unprovoked shooting of Manasco."

Brown J., dissenting in part on rehearing.

J.J Ray, of Jasper, M.L. Leith, of Birmingham, Norman Gunn, of Jasper, and Mayhall & Stagner, of Haleyville, for appellant.

W.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

BROWN J.

This is the third appeal in this case, and in the reports of the case on the former appeals will be found a summary of the facts attending the homicide. Johnson v. State, 4 Ala.App 47, 57 So. 593; Johnson v. State, 8 Ala.App. 14, 62 So. 450; Ex parte Johnson, 183 Ala. 88, 63 So. 73.

It is sufficient to say that the evidence on the part of the state tended to show that the homicide was unprovoked and unjustifiable, while that offered by the defendant tended to show that the defendant acted in self-defense.

Before the witness Harper was examined by the state, the fact was developed in the testimony of Lula Edwards, a daughter of the deceased, that Kirk Dodd was the uncle of Lula Edwards, and that he had been taking an active interest in the prosecution, and had "posted" the witness Lula Edwards, as a result of which she had testified on a previous trial that she knew who shot her father, when as a matter of fact her testimony on the last trial showed that she did not know who fired the shots that caused his death. In view of this evidence and the relation of Dodd to the deceased, and the tendency of the evidence showing Dodd's disposition to color the facts bearing upon the homicide, the court fell into error in sustaining the objections of the solicitor to the questions eliciting testimony to the effect that the witness, before the preliminary trial of the defendant, received the assurance from Dodd, who was the prosecutor in a case against the witness, that if he would stand by the state in this prosecution, the case against the witness would be dropped. If such assurance was given the witness and in pursuance thereof he gave evidence favorable to the prosecution, it was a material fact to which the defendant was entitled, as showing bias or prejudice, and proper to be considered by the jury in weighing the testimony of the witness. Lodge v. State, 122 Ala. 97, 26 So. 210, 82 Am.St.Rep. 23; Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am.St.Rep. 28; Southern Ry. Co. v. Crowder, 130 Ala. 265, 30 So. 592; Hosey v. State, 5 Ala.App. 8, 59 So. 549; Houston Biscuit Co. v. Dial, 135 Ala. 168, 33 So. 268; Ott v. State, 160 Ala. 31, 49 So. 810; A.G.S.R.R. Co. v. Johnston, 128 Ala. 295, 29 South 771; Harwell v. State, 11 Ala.App. 190, 65 So. 702.

In Prince v. State, supra, the court observed:

"In weighing testimony the jury ought to be in possession of all facts calculated to exert any influence upon the witness. It cannot be said as a conclusion of law that an employé, testifying in a matter in which he knows his employer is interested personally or pecuniarily, is, or is not, wholly unbiased. It is proper for the jury to know the character of the interest of the employer, how it is to be affected, and in what way it is manifested."

In Commonwealth v. Sacket, 22 Pick. (Mass.) 394:

"On a cross-examination great latitude is allowed to counsel in putting questions to test the accuracy or credibility of the witness, and the limitation of the inquiries in respect to matters irrelevant to the point in issue must depend on the discretion of the court trying the cause; and in such a case the decision of the common pleas is not subject to revision in this court. But we think that the question whether a reward had not been offered to the witness in relation to the testimony which he should give in a certain class of cases, comprehending this case, was material to the issue under consideration, and it was a matter of right for the party to have it answered."

In Harwell v. State, supra, this court, speaking by Walker, P.J., said:

"On the cross-examination of the witness the defendant was entitled to bring out any fact having a tendency to impeach his impartiality. It is not to be denied that the jury, in determining whether or not the witness was under the influence of a bias that might affect the weight to be accorded his testimony, should have been permitted to look, not only to the fact that he had been employed to obtain incriminating evidence against the defendant, but to the amount of compensation he expected to receive for the service rendered by him in that regard."

The action of the court in offering to allow the defendant, on the cross-examination of Dodd, to ask the same questions that had been propounded to Harper, and to which objections were sustained, with the condition that if Dodd denied the facts sought to be proved by Harper's answers to those questions, the court would have Harper recalled, did not cure the injurious effects of the error. The effect of this offer was to fix as a prerequisite to the defendant's right to cross-examine Harper as to a fact material to his defense that the defendant first disprove that fact by the witness Dodd, who is shown to have been active in the prosecution of the defendant.

The control of the prosecution, in so far as presenting the state's case is concerned, was in the hands of the solicitor, upon whom the statute imposes the duty of representing the state in the prosecution. Code 1907, § 7781. There is nothing in the statute...