McCain v. State

• Citation: 247 So.2d 383,46 Ala.App. 627
• Decision Date: 20 April 1971
• Docket Number: 6 Div. 26
• Parties: Hugh W. McCAIN, alias v. STATE
• Court: Alabama Court of Criminal Appeals

Page 383

247 So.2d 383

46 Ala.App. 627

Hugh W. McCAIN, alias v. STATE

6 Div. 26.

Court of Criminal Appeals of Alabama.

April 20, 1971.

Tarter & Wininger, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Joseph Victor Price, Jr., Asst. Atty. Gen., for the State.

PER CURIAM.

This appeal is from a conviction of burglary in the Circuit Court of Jefferson County.

The testimony for the State tends to show that Officer Tommy E. Rouse of the Birmingham Police Department was on duty and cruising in a police car on Clairmont Avenue in Birmingham at about 3:10 A.M. on May 10, 1967, when he noticed a lock missing from the front door of a Hill's Grocery Store, owned and operated by Winn-Dixie Montgomery, Inc. He continued for a short distance, then turned around and cut off his lights. As he approached the store front he saw two men come out and walk rapidly away. As he came closer he recognized them as the appellant and one Frank L. McKinsey, at about which time they ran and escaped in a side street or alley. The appellant was wearing a yellow windbreker and dark trousers and had dark hair. The officer alerted other police cars, which converged on the area. The appellant and McKinsey were both found close by and arrested. A Dodge Chager was found nearby and Officer Rouse looked into the car and saw a set of hand trucks, or dollies, and a name plate bearing the initials, 'F.L.M.'. The car was dusted that night for fingerprints and the prints of Frank McKinsey were found.

The manager of the store testified that two locks on the front door were broken or off, that the door was open when he was called to the scene that night, and that the door had been closed and locked earlier in the night when he left the store. Some articles were disarranged and a safe moved. Officer Price, who responded to the police radio call, arrested appellant. Several other police officers responded to the call and aided in the investigation made of the store and the car.

Appellant did not testify and offered no witnesses.

Appellant's attorney, on cross-examination of Police Officer Rouse, outside the presence of the jury, offered to ask the witness to stand and turn his back away from the jury so that he could ask him certain questions; such as, the number of men and women on the jury, how certain people in the courtroom were dressed, their approximate height, weight, color of hair, complexion, and various other things visible in order to test his powers of observation and recollection. The court sustained objection by the State and the appellant reserved an exception.

It is familiar law that the right of cross-examination, thorough and sifting, belongs to every party as to witnesses called to testify against him. Tit. 7, § 443, Code of Alabama, 1940, as amended 1958. Noble v. State, 253 Ala. 519, 45 So.2d 857.

But it is also well settled that the scope and extent of cross-examination rests in the sound discretion of the trial court and such discretion will not be revised on appeal unless grossly abused. Vandiver v. State, 37 Ala.App. 526, 73 So.2d 566, cert. denied 261 Ala. 700, 73 So.2d 572; and many cases cited in Alabama Digest, Criminal Law, k1152(4).

The same rule governs as to experiments in court. Shows v. Brunson, 229 Ala. 682, 159 So. 248.

The experiment sought in this case to test the powers of observation and recollection of the witness under circumstances very different from those testified about might well have confused the jury by the collateral matter...