Kirkpatrick v. State

• Decision Date: 07 February 1922
• Docket Number: 7 Div. 755.
• Citation: 92 So. 238,18 Ala.App. 389
• Court: Alabama Court of Appeals
• Parties: KIRKPATRICK v. STATE.

92 So. 238

18 Ala.App. 389

KIRKPATRICK v. STATE.

7 Div. 755.

Court of Appeals of Alabama

February 7, 1922

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Os Kirkpatrick was convicted of violating the prohibition laws and he appeals. Reversed and remanded.

W. J Boykin, of Gadsden, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

Over the objection of defendant, the solicitor was permitted to read to state witness Langley, upon his direct examination the memorandum of his testimony as given before the grand jury, resulting therefore in calling out from the witness what testimony he had given before the grand jury. This was not permissible. Billingslea v. State, 85 Ala. 323 5 So. 137; Thompson v. State, 99 Ala. 173, 13 So. 753; 1 Mayfield, Digest, p. 880. In the Billingslea Case, supra, Stone, C.J., speaking for the court said:

"We think it clear that it was not permissible to call out from the witness Hutchings what testimony he had given before the grand jury. A party on trial for a public offense has the constitutional right 'to be confronted by the witnesses against him.' The right of cross-examination is scarcely less sacred than this: and parties whose conduct is undergoing investigation before a grand jury have no right to be present, and are not permitted to be represented before that body. It is a grand inquest, but it is secret, and ex parte."

In Thompson v. State, supra, the Supreme Court said:

"While it may not be permissible for the solicitor, during the examination of a witness, 'to read from a memorandum of his testimony before the grand jury,' he may 'ask questions from the memorandum to refresh the memory of the witness as to his testimony before the grand jury."

In 1 Mayfield, Digest, supra, it is said:

"A solicitor should not be allowed to read from a memorandum of his own as to the testimony of a witness before the grand jury, but may ask questions from the memorandum to refresh the memory of the witness as to his testimony before the grand jury, but should not be allowed to read therefrom to the witness."

And in 1 Mayfield, Dig. p. 893, par. 350, it is said:

"A solicitor, or an attorney, while examining a witness should not be allowed to read from his own notes to the witness what purports to be the testimony of the witness on a former occasion, but the attorney or solicitor may use his own notes for the purpose of refreshing his own memory, so that he may ask the witness questions as to what he testified on a former occasion."

In the case at bar, after the solicitor had finished reading his memorandum of witness' testimony before the grand jury the record states he asked the witness, "Didn't you say that to the grand jury?" and over the objection and...