Moore v. State

• Decision Date: 12 January 1915
• Docket Number: 185
• Citation: 67 So. 789,12 Ala.App. 243
• Parties: MOORE v. STATE.
• Court: Alabama Court of Appeals

67 So. 789

12 Ala.App. 243

MOORE v. STATE.

No. 185

Court of Appeals of Alabama

January 12, 1915

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Gus Moore was convicted of violating the prohibition law, and he appeals. Reversed and remanded.

See also, 10 Ala.App. 179, 64 So. 520.

L.A. Sanderson and Goodwyn & McIntyre, all of Montgomery, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst Atty. Gen., for the State.

BROWN J.

The theory advanced by the appellant in his defense, as indicated by the examination of the state's witnesses and by some of the evidence offered on the trial, was that the prosecution was a malicious one instigated by the state's witness Sellers for the purpose of acquiring possession of defendant's lands adjoining those of Sellers. On the cross-examination of the state's witness Arrington, who is shown to have been one of Sellers' tenants, he was examined extensively as to the interest he had manifested in the prosecution of the defendant, and his testimony tended to refute the fact that he had taken any unusual interest in the prosecution, but showed that he had appeared before the grand jury and testified at the time the defendant was indicted. On redirect examination, the court allowed the solicitor to ask the witness if he appeared before the grand jury voluntarily or if he appeared there in response to a subpoena. The question elicited testimony pertinent and material to the inquiry as to what interest, if any, the witness had manifested in the prosecution. For this reason, there was no error in overruling the defendant's objection to the question; and, for like reasons, there was no error in overruling the defendant's motion to exclude the answer.

While, in view of the negative answer of the witness to the question calling for his knowledge as to who reported this case to the grand jury, in the absence of testimony tending to show that the witness himself reported it or was connected with the instigation of the prosecution, we are unable to see how this fact could be material to any issue in the case; yet the negative answer of the witness to this inquiry could not have prejudiced the defendant.

There is nothing in the record to show what, if anything, was on the paper exhibited to the witness Arrington by the solicitor; but, assuming that this paper contained matter which, if it had been admitted, would have been prejudicial to the rights of the defendant, there was nothing improper in the preliminary inquiry of the solicitor seeking to identify this paper and to connect the defendant with it; and there was no error in the ruling of the court in allowing this preliminary inquiry. The court could not assume at this stage of the trial that the state would not be able to identify the paper and connect the defendant with the fact of its presence at witness' door. While there is nothing in the testimony developed on the preliminary inquiry tending to connect the defendant with the paper, yet, in view of the fact that the contents of the paper were not disclosed to the jury, no prejudice could have resulted to the defendant from this preliminary inquiry. If the defendant had made a motion to exclude the evidence of the witness as to this paper, after the court refused to permit the paper to be introduced in evidence, it was clearly the defendant's right to have it excluded; and, if the motion had been made at this stage of the case, it no doubt would have been granted. However, at the time the objections were made to the preliminary questions, and motion made to exclude the answer thereto, it was not the defendant's right to have such inquiry stopped.

There was no error in allowing the witness Jerico to testify that, about the time the witness Arrington swore that he bought whisky from the defendant, he (Jerico) saw three bottles of beer in a little box on ice in the defendant's store. This fact, in the absence of a license authorizing the defendant to engage in the liquor business, was prima facie evidence that the defendant was keeping liquors for sale contrary to law, and was a fact pertinent to be considered by the jury in connection with the evidence tending to show a sale of whisky to Arrington. Acts 1909, p. 64, § 4; Patterson v. State, 8 Ala.App. 422, 62 So. 1023; Kinsaul v. State, 8 Ala.App. 405, 62 So. 990; Stokes v. State, 5 Ala.App. 159, 59 So. 310; Bell v. State, 2 Ala.App. 224, 57 So. 154.

The defendant asked the witness Jerico on cross-examination the following question: "State whether or not you have been convicted in this court and sent to the penitentiary for a term." The court sustained an objection to this question, and the appellant here insists that in this ruling the court committed error which should work a reversal of the judgment. Section 4008 of the Code of 1907 provides that, if a witness has been convicted of a crime involving moral turpitude, this fact may be shown as tending to impeach the credibility of the witness; and section 4009 provides that the witness may be examined touching his conviction for crime. Section 6756 of the Code defines the difference between felonies and misdemeanors as follows:

"A felony within the meaning of this Code, is a public offense which may be punished by death, or by imprisonment in the penitentiary; all other public offenses are called misdemeanors." Therefore, if the witness previous to his examination had been convicted of a crime which justified a sentence to the penitentiary for a term, it was a felony. Clifton v. State, 73 Ala. 473. A conviction for a felony at common law carried with it the stigma of infamy and disqualified the convict to become a witness or to serve as a juror, and the same result follows the conviction for any form of crimen falsi, such as "the crime of falsifying; which might be committed either by writing, as by the forgery of a will or other instrument; by words, as by bearing false witness, or perjury; and by acts, as by counterfeiting or adulterating the public money, dealing with false weights and measures, counterfeiting seals, and other fraudulent and deceitful practices" (Black's Law Dictionary, p. 300)--regardless of whether the crime was a felony or a misdemeanor (16 Am. & Eng.Ency.Law [2d Ed.] 245; 22 Cyc. 501; Smith v. State, 129 Ala. 91, 29 So. 699, 87 Am.St.Rep. 47).

Section 1795 of the Code of 1896 provided:

"No objection must be allowed to the competency of the witness because of his conviction for any crime, except perjury or subornation of perjury, but if he has been convicted of other infamous crime, the objection goes to his credibiIity."

Construing that statute, the Supreme Court, in the case of Smith v. State, 129 Ala. 89, 29 So. 699, 87 Am.St.Rep. 47, said:

"The rule of the common law was that persons convicted of treason, felony, and the crimen falsi, were rendered infamous and were disqualified as witnesses in civil and criminal cases. *** The common-law rule, which prevailed in this state, was changed by the enactment of the statute now embraced in section 1795 of the Code so as to relieve a witness of disqualification by reason of having been convicted of an infamous crime, except where the conviction is for perjury or subornation of perjury; providing, however, that the evidence of such conviction goes to his credibility. It is too clear for argument that the words 'infamous crime' employed in the statute have the same meaning as they had at common law."

In Gordon v. State, 140 Ala. 38, 36 So. 1012, applying that section, the court said:

"Manslaughter was a felony at common law, and by the common law a conviction and sentence for crime belonging to the class called infamous and comprised in treason, felony, and crimen falsi rendered the convict incompetent to testify as a witness."

But in that case the court held that it was not permissible to offer proof of a conviction for wantonly or maliciously throwing into a railroad train, which under some circumstances is a felony and under others a misdemeanor, because it was not a common-law felony or an offense within the description crimen falsi. In the case of Deal v. State, 136 Ala. 57, 34 So. 23, the Supreme Court, speaking by Justice Sharpe, the author of the opinion in the Gordon Case, held that evidence of a conviction for burning a gin, which was not a felony at common law, but was a felony under our statute, was admissible to discredit the witness. 3 Cyc. 986.

The Smith and Gordon Cases both cite, as sustaining their enunciations, Sylvester v. State, 71 A1a. 23, and Taylor v. State, 62 Ala. 164. In Sy1vester's Case, the court holds:

"At common law persons convicted of crimes which render them infamous were excluded from being witnesses. An infamous crime was regarded as comprehending treason, felony, and crimen falsi."

And in Taylor's Case:

"The rule of the common law is that persons convicted of treason, felony, and the crimen falsi were rendered infamous, and were disqualified as witnesses in cases civil or criminal. *** The

...