Mitchell v. State

• Decision Date: 20 January 1916
• Docket Number: 2 Div. 130
• Citation: 14 Ala.App. 46,70 So. 991
• Parties: MITCHELL v. STATE.
• Court: Alabama Court of Appeals

70 So. 991

14 Ala.App. 46

MITCHELL v. STATE.

2 Div. 130

Court of Appeals of Alabama

January 20, 1916

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

John Mitchell was convicted of killing Columbus Gentry, and appeals. Reversed and remanded.

J.T Ellison, of Centerville, and Frank M. Dominick, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and J.F. Thompson, Sol., of Centerville for the State.

BROWN J.

The mistake in the name of the juror Perry as it appeared on the copy of the venire served on the defendant and on the list from which he was required to strike in selecting the jury furnished no ground for quashing the venire. Acts 1909 (Special Session) § 32, p. 320; Bone v. State, 8 Ala.App. 66, 62 So. 455; Smith v. State, 165 Ala. 56, 51 So. 611.

In criminal prosecutions, evidence of the general good character of the accused is admissible as original evidence tending to exculpate from the charge, and the weight of authority establishes what we consider the better rule, that such evidence, when offered, should be directed to the particular traits of character involved in the nature of the charge. Underhill, Criminal Evidence, §§ 77-84; Cauley v. State, 92 Ala. 71, 9 So. 456; Balkum v. State, 115 Ala. 118, 22 So. 532, 67 Am.St.Rep. 19; Snead v. State, 142 Ala. 14, 39 So. 329; Commonwealth v. Nagle, 157 Mass. 554, 32 N.E. 861; Gandolfo v. State, 11 Ohio St. 114; Coffee v. State, 1 Tex.App. 548; Kee v. State, 28 Ark. 155; Westbrooks v. State, 76 Miss. 710, 25 So. 491; State v. Kennedy, 177 Mo. 98, 75 S.W. 979; Arnold v. State, 131 Ga. 494, 62 S.E. 806.

The character of the accused in this respect can be made an issue only by the accused offering proof of his good character, and when he does, the state may offer countervailing evidence of his general bad character in the respect in which it has been made an issue (Smith v. State, supra), or may, on the cross-examination of the defendant's witness, show reports or rumors current in the community of defendant's residence before the alleged criminal act under investigation derogatory to his good character in the respect he has put it in issue, for the purpose of showing that the witness was mistaken in his estimate of defendant's character. Bullington v. State, 69 So. 319; Ragland v. State, 178 Ala. 59, 59 So. 637.

But such evidence must be limited to repute affecting the defendant's character current prior to the commission of the crime under investigation. Ragland v. State, supra; Griffith v. State, 90 Ala. 583, 8 So. 812.

"It is only just that this evidence should be free from any imputation or suggestion of wrongdoing which may have arisen from a public discussion of the crime or of the arrest of the accused. To permit the inquiry to extend down to the arrest or trial would be to embarrass, if not destroy, the probability of innocence arising from good character by evidence of a single wicked transaction, which the accused may not have committed at all. *** Thus, for example, the state is not entitled to bring out on cross-examination of a witness, called to prove the good character of the accused, that, after the commission of the crime, he had heard that the accused had been guilty of actions and conduct that would indicate that the witness was mistaken in his estimate of good character." Underhill, Criminal Evidence, § 83, p. 150; White v. Commonwealth, 80 Ky. 480; Powers v. State, 117 Tenn. 363, 97 S.W. 815.

Repute concerning specific acts affecting the character of one accused of crime after its commission too often emanate from sources of prejudice, interest, and bias growing out of the alleged criminal act, and to allow testimony affected with such infirmities would offer too much incentive for the circulation by interested parties and their friends of false reports, for the purpose of destroying the general reputation of the accused and depriving him of the benefit of a good character.

The result is, the learned trial court erred in overruling the defendant's objections to the questions of the solicitor on cross-examination of the defendant's character witnesses eliciting testimony as to what they had heard since the alleged crime, although the particular act inquired about was reported to have occurred before, Ragland v. State, supra; Forman v. State (Sup.) 67 So. 583.

What we have said above applies only to character evidence admissible as exculpatory evidence. If the accused testifies as a witness, the credibility of his testimony may be impeached, like any other witness, by showing his general bad character; but in cases where the character of the accused in both respects is made an issue, to avoid impinging the principles above stated, the impeaching evidence, when requested by the accused, should be limited by the court to the purpose of impeaching the credibility of the witness. McGuire v. State, 2 Ala.App. 219, 57 So. 57; Byers v. State, 105 Ala. 31, 16 So. 716; Fields v. State, 121 Ala. 16, 25 So. 726; Sweatt v. State, 156 Ala. 85, 47 So. 194.

The objection to the question...