Powe v. State

• Decision Date: 08 May 1923
• Docket Number: 1 Div. 492.
• Citation: 19 Ala.App. 215,96 So. 370
• Parties: POWE v. STATE.
• Court: Alabama Court of Appeals

96 So. 370

19 Ala.App. 215

POWE v. STATE.

1 Div. 492.

Court of Appeals of Alabama

May 8, 1923

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Sam Powe was convicted of assault and battery, and he appeals. Reversed and remanded.

Brooks & McMillan, of Mobile, for appellant.

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

SAMFORD J.

The prosecution grew out of a difficulty between defendant and one Sam Schwarz. Two other parties were engaged in a fight Schwarz attempted to interfere as a peacemaker, and, as claimed by him, defendant caught him by the collar and assaulted and beat him. During the cross-examination of Schwarz as a witness, he first testified that he had never had any feeling for or against defendant but on further cross-examination admitted that on several occasions he had reported defendant to the authorities for parking his automobile in front of the Cawthon Hotel and had made efforts before the city commissioners and before the state authorities to have defendant's license as a chauffeur revoked. On redirect examination he testified "I did, before this assault took place, make some complaints to the city authorities about Sam Powe being in front of the hotel." The solicitor then asked "Just tell them on what you made your complaint." Defendant objected to this question, stating proper grounds, the objection was overruled, and defendant excepted. The testimony called for by this question was not substantially contemporaneous with the offense charged, or so closely connected with the main fact as to tend to illustrate the act complained of. Such testimony therefore could not be a part of the res gestæ.

The testimony called for related to entirely different and distinct transactions, having no bearing on the case at issue, and with no tendency to prove or disprove any fact properly involved in the trial. The defendant's objection to this question should have been sustained. Hammock v. State, 8 Ala. App. 367, 62 So. 322; A. G. S. Ry. v. Guest, 144 Ala. 373, 39 So. 654; Crawford v. State, 112 Ala. 1, 21 So. 214. Indeed, the trial court recognized the illegality of the question, by its subsequent ruling sustaining the motion of defendant's counsel to exclude the answer.

Ordinarily this action of the court in excluding the answer to an illegal question would have rendered the error harmless, but in this case the answer to the question was so calculated to influence the minds of the jury against the defendant as that a mere formal granting of a motion to exclude would not be sufficient to render the error harmless.

It is unnecessary, we think, to quote the language of the answer to the question, but it was calculated, if true, to have aroused resentment in the minds of every man on the jury, and judging from the severe punishment inflicted by the court, perhaps even...