Largin v. State
| Citation | 104 So. 556,20 Ala.App. 610 |
| Decision Date | 19 May 1925 |
| Docket Number | 6 Div. 416 |
| Parties | LARGIN v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.
James Largin was convicted of manslaughter in the first degree, and he appeals. Reversed and remanded.
J.F. Thompson, of Birmingham, and Brown & Ward of Tuscaloosa, for appellant.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
The defendant and his father were separately indicted on a charge of murder in the first degree for the killing of Edward Elliott. The trials were had separately, but the facts as testified to by the state's witness were essentially the same, disclosing a joint offense. The contention of the defendant and his evidence tended to prove that he was not present at the fatal difficulty and had no hand in the killing.
Upon the trial one Ed Pearson, a cousin of defendant, was examined as a defendant's witness. Subsequently defendant examined as a witness in his behalf J.C. Stevens. After Stevens had given his evidence in chief, and upon cross-examination, the state sought to prove that the witness Pearson had offered to pay Stevens to testify to a certain fact in the pending case. The court refused to permit the state to make this proof until a predicate had been laid to Pearson. Whereupon the witness Stevens was withdrawn, Pearson was recalled, and a predicate laid. Stevens was then recalled, and the predicate proven as laid, all of which was done over the objection and exception of defendant. The court specifically limited this evidence for the purpose of showing interest on the part of the witness Pearson. The defendant's counsel then offered to read to the witness a statement signed by the witness, in which there was a statement to the effect that the statement contained all he knew about the case, and to ask witness if such statement was not read over to him, and if he did not affirm its correctness, and further offered to cross-examine the witness upon that part of the testimony hereinabove referred to. The court refused to permit this, and as to which exceptions were reserved.
Under the authority of Mosley v. State, 19 Ala.App. 335 97 So. 247, Byrd v. State, 17 Ala.App. 301, 84 So. 777, it was competent to prove that Pearson had offered money to Stevens, as tending to show the bias of Pearson, and the court properly limited the testimony to this issue.
Did the defendant have a right to cross-examine the witness Stevens on this new matter brought out by the state? The general rule, as is well known, is that a party litigant may not impeach his own witness. White v. State, 87 Ala. 24, 5 So. 829. This rule applies both as to independent evidence as to general character and to proof of contradictory statements as to material facts, made at different times and places. Southern R. Co. v. Parkes, 10 Ala.App. 318, 65 So. 202. Nor does the proof of independent facts in the cross-examination of a witness thereby make the witness the witness of the cross-examining party, subjecting the witness to cross-examination by the party offering him as a witness. Johnson v. Armstrong, 97 Ala. 731, 12 So. 72. Whatever may be the rulings in other jurisdictions, it is well settled in this state that, when a party introduces a witness, he will not be permitted to impeach him, but, when put to a disadvantage by unexpected answers for the purpose of refreshing the recollection of the witness and of showing surprise, and to relieve himself from the disadvantage at which he had been put by such evidence, it is competent for him to ask the witness if he had not made statements contrary to what he had just testified; such evidence being competent, although its incidental effect is the impeachment of the witness' testimony, this character of evidence being limited to the examination of the witness himself. Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687; Thomas v. State, 117 Ala. 178, 23 So. 665; White v. State, 87 Ala. 24, 5 So. 829; So. Bell Tel. Co. v. Mayo, 134 Ala. 641, 33 So. 16.
While these questions and answers were not admissible for the purpose of impeachment of the witness Stevens, they were admissible, and should have been admitted for the purpose of showing the hostility of the witness and surprise on the part of the defendant's counsel. The court was apprised of the predicament of defendant caused by the unexpected testimony of a witness introduced by him, and defendant's counsel asked to be allowed to ask the witness certain questions tending to show a contrary statement. The questions desired to be asked were not, strictly speaking, cross questions, but rather to show surprise and hostility on the part of the witness. In Watts v. State, 8 Ala.App. 115, 63 So. 15, a former learned judge of this court, in a case similar to this, and citing Thomas v. State, 117 Ala. 178, 23 So. 665, says:
"When new matter is brought out on a cross-examination against the interest of the party calling the witness in the nature of a surprise, the party may on re-examination cross him as to it, even though the incidental effect may be the impeachment of the witness."
In Hickman v. State, 12 Ala.App. 23, 67 So. 775, in a case where the solicitor entered into a virtual cross-examination of a...
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Kilpatrick v. State
...Ala.App. 498, 93 So. 342; Lancaster v. State, 21 Ala.App. 140, 106 So. 609; Cline v. State, 25 Ala.App. 433, 148 So. 172; Largin v. State, 20 Ala.App. 610, 104 So. 556; Newsom v. State, 15 Ala.App. 43, 72 So. The same argument and contention as above is made on behalf of the defendant in re......
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Marcum v. State
...to lay a predicate to cross examine Clements with the avowed purpose of impeaching its own witness. This court, in Largin v. State, 20 Ala.App. 610, 104 So. 556, 557, stated the rule as 'Whatever may be the rulings in other jurisdictions, it is well settled in this state that, when a party ......
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McMillian v. State, 2 Div. 394
...12 Ala.App. 22, 67 So. 775; Moulton v. State, 19 Ala.App. 446, 98 So. 709; Duncan v. State, 20 Ala.App. 209, 101 So. 472; Largin v. State, 20 Ala.App. 610, 104 So. 556; Jarrell v. State, 35 Ala.App. 256, 50 So.2d The conflicting tendencies of the evidence presented a question for the jury. ......
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Dial-in testimony.
...test is this: ... Was the statement made dum fervet opus or was it a narrative of a past occurrence?"); see also, e.g., Largin v. State, 104 So. 556, 558 (Ala. Ct. App. 1925) (noting that statements must have been "instinctive from the occurrences to which they relate rather than the retros......