Kervin v. State
| Decision Date | 30 June 1950 |
| Docket Number | 4 Div. 588 |
| Parties | KERVIN v. STATE. |
| Court | Alabama Supreme Court |
Ralph A. Clark, of Andalusia, and Hill, Hill, Whiting & Harris, of Montgomery, for appellant.
A. A. Carmichael, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
Norris E. Kervin (appellant) was indicted for murder in the first degree. Upon trial he was convicted of murder in the second degree and punishment was fixed at twenty-five years in the penitentiary.
Appellant and Cousby Berry, the deceased, were brothers-in-law. On the day of the killing appellant and deceased were driving around in appellant's car. It was a muddy, rainy day and the car slid off the road on two different occasions. They managed to get the car back on the road and continue on their way but only after they got into a fight in the car. Both men were drinking. Early in the evening the two went to the house of appellant. Appellant's wife and child and the wife and child of deceased were at the house. As the two men entered the house appellant walked over to his wife, slapped her and knocked her down. The appellant's wife was the sister of deceased. Thereupon the deceased and the appellant began to scuffle. No blows were passed but the two men wrestled on the floor and over the bed, ending up with the deceased on top of accused. The deceased promised to let the appellant get up if the appellant would let him alone. This the appellant promised to do. However when the appellant got up he got a shot gun from the rack near the bed and ordered the deceased to leave. Tendencies of the evidence showed that the deceased had started to leave the room when he was shot. The charge of the shot gun entered the back of the head of the deceased. Appellant testified that the deceased was advancing upon him with a knife when he was shot. A pen knife was found held loosely in the hand of the deceased. No one saw the actual killing. Both women had left the house just before the shot was fired.
A number of witnesses testified to the good character of the accused. Numerous objections on the trial were made as to the manner of cross-examination of these witnesses. It is true, as contended by the appellant, that a character witness should not be cross-examined as to his knowledge of particular acts or conduct of the defendant in order to prove such acts or conduct. Moulton v. State, 88 Ala. 116, 60 So. 758, 6 L.R.A. 301; Way v. State, 155 Ala. 52, 46 So. 273; Cockrell v. State, 32 Ala.App. 618, 29 So.2d 152.
There is a difference, however, between proof of character and testing the credibility of a witness who has testified to good character. The rule was stated in Smith v. State, 103 Ala. 57, 15 So. 866, 871, as follows:
In the case of Hill v. State, 210 Ala. 221, 97 So. 639, 642, in speaking of cross-examination of character witnesses by reference to specific acts, the court said: 'Such matters, whether as facts or as reputed facts, are not admissible as original evidence, but, as reputed facts, are properly inquired about on cross-examination to test the value of the witness' opinion.'
In Mullins v. State, 31 Ala.App. 571, 19 So.2d 845, it is pointed out that the witness may be asked on cross-examination if he has not heard that the defendant had committed certain unworthy acts, naming them. We cite a number of cases where the cross-examination of character witnesses as to certain unworthy acts was upheld. Hill v. State, 210 Ala. 221, 97 So. 639; Stout v. State, 15 Ala. App. 206, 72 So. 762; Holmes v. State, 88 Ala. 26, 7 So. 193, 16 Am.St.Rep. 17; Terry v. State, 118 Ala. 79, 23 So. 776; Pierce v. State, 228 Ala. 545, 154 So. 526; Bullington v. State, 13 Ala.App. 61, 69 So. 319; Marshall v. State, 18 Ala.App. 483, 93 So. 236.
We have carefully examined the various questions propounded the various character witnesses on cross-examination and find that the court allowed questions that were properly framed and disallowed questions that were improper. We find no error in regard to these questions.
Objection is made to the manner in which the defendant and the defendant's wife were treated on cross-examination. The defendant's wife had made a prior written statement to some of the state officers. The questions propounded her on her cross-examination were designed to test the truth of her testimony and to determine whether the jury was to believe the written statement or her oral...
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Aaron v. State
...other offenses or of specific acts of bad conduct on the part of the defendant. Helms v. State, 254 Ala. 14, 47 So.2d 276; Kervin v. State, 254 Ala. 419, 48 So.2d 204; Johnson v. State, 260 Ala. 276, 69 So.2d 854. The better practice is to frame the question so as to inquire of the witness ......
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Moseley v. State, 3 Div. 763
...other offenses or of specific acts of bad conduct on the part of the defendant. Helms v. State, 254 Ala. 14, 47 So.2d 276, Kervin v. State, 254 Ala. 419, 48 So.2d 204; Johnson v. State, 260 Ala. 276, 69 So.2d 854. The better practice is to frame the question so as to inquire of the witness ......
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Blount County v. Campbell
...the trial court and unless the discretion of the court is grossly abused, the ruling of the court will not be overturned. Kervin v. State, 254 Ala. 419, 48 So.2d 204; Reeder v. State, 210 Ala. 114, 97 So. V. It is further insisted that the court was in error in sustaining an objection to th......
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Hallman v. State, 7 Div. 191
...In the state of the instant record we are not permitted to review the cumulative effects of the solicitor's argument. Kervin v. State, 254 Ala. 419, 48 So.2d 204. With the exception of charge numbered 14, the written instructions refused to appellant were affirmative in effect. Charge 14 is......