Sowell v. State, 4 Div. 624.

• Decision Date: 21 January 1941
• Docket Number: 4 Div. 624.
• Citation: 199 So. 900,30 Ala.App. 18
• Parties: SOWELL v. STATE.
• Court: Alabama Court of Appeals

199 So. 900

30 Ala.App. 18

SOWELL v. STATE.

4 Div. 624.

Court of Appeals of Alabama

January 21, 1941

Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.

Cecil Sowell was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

Ralph A. Clark, of Andalusia, for appellant.

Thos S. Lawson, Atty. Gen., and Clarence M. Small, Asst. Atty Gen., for the State.

SIMPSON Judge.

Under an indictment for murder in the first degree, the appellant was convicted of murder in the second degree. He killed his father-in-law and at his trial pleaded selfdefense.

Dying declarations of the deceased and testimony of the two eyewitnesses to the affray were the only evidence for the State as to the events at the time of the tragedy. These two witnesses were the appellant's wife and her mother, wife of the deceased. The testimony of these two witnesses and the dying declarations of the deceased strongly supported the charge of first degree murder. So the potent effect of such evidence at the trial, especially of the two living State's witnesses, against the appellant is readily manifest. Admittedly, it was the force of such evidence which produced his conviction, for, without it, little else was proved for the State.

It may be said, for the purpose of this discussion, that the evidence for the defendant (appellant) tended to sustain his plea of self-defense. He and his mother were the only eyewitnesses to the difficulty testifying in his behalf at said trial.

By various questions propounded on cross-examination to the said two State's witnesses, elicitation was sought by the defendant of evidence of hostile bias and existing bad feeling of said witnesses toward the defendant. Other questions sought to show that the deceased and defendant were on bad terms. The trial court sustained--and in our opinion erroneously--the State's objections to these questions. Exceptions to this action of the court were duly reserved, and the propriety of said rulings is one of the controlling insistences of error on this appeal.

Generally, anything which tends to show bias or inclines the witness to swear against a party is relevant for impeachment. Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474, 476; Nelson v. State, 11 Ala.App. 221, 65 So. 844; Pelham v. State, 22 Ala.App. 529, 530, 117 So. 497; Byrd v. State, 17 Ala.App. 301, 302, 84 So. 777.

Hostile feeling shown to be malignant, reflects greater discredit to the witness than that generated by a sudden quarrel. So, proper inquiry is allowed to test the extent of the hostility of such witness. Legitimate cross-examination to elicit such proof is proper. Fincher v. State, 58 Ala. 215, 220.

Upon such inquiry, any circumstance which might reasonably show bias or hostility is admissible upon cross-examination for consideration of the jury. 2 Wigmore on Evidence, 2nd Ed., Sections 948, 949, 950. This principle was skilfully dealt with by Mr. Justice Thomas of our Supreme Court in Adler v. Miller, 218 Ala. 674, 679, 120 So. 153, and excellently restated by Mr. Chief Justice Gardner of that court in Louisville & N. R. Co. v. Martin, 198 So. 141, 144. As so well set forth in these cases (quoting Wigmore, supra, Section 949, p. 332): "The range of external circumstances from which probable [[[[[[probably] bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place."

It is also a part of our statute law that every party has the right of cross-examination, thorough and sifting, of the witnesses who testify against him. Code 1923, Section 7731.

This court, after a careful and studious scrutiny of the present record, is convinced that the sustaining of the State's objections to certain questions, propounded by defendant to the State's said two witnesses, was not in accordance with the foregoing authorities, and that substantial error intervened to the prejudice of the defendant.

The following exemplify the instances where the cross-examination of said witnesses was too narrowly limited:

After having testified that there was no ill feeling because of the defendant's marriage to their daughter, the mother-in-law of defendant (wife of deceased and mother of defendant's wife) was asked, upon cross-examination: "Q. And isn't it a fact that you carried your daughter down to your home when the child was born and you and your husband refused to let Cecil visit down there at all?"

Using the authorities hereinabove as our guide, we think the evidence, or "circumstance", sought to be shown by this type of question, was proper to prove the hostile feeling of the witness, the malignancy and extent thereof. Appropriate here, also, is the observation in Section 950, p. 336, Wigmore, supra: "The only question is whether from the conduct or language a palpable and more or less fixed hostility (to one party) or sympathy (for the other) is inferable."

And it cannot be said that such question was rendered illegal by the reference therein to her husband, the deceased. For, aside from tending to show a circumstance from which hostility of the witness may be inferred, it has been held that legitimate inquiry may be made as to whether the defendant and deceased were on good or bad terms. Cook v. State, 5 Ala.App. 11, 23, 59 So. 519. Especially are we so impressed since the dying declarations of the deceased in evidence tended to show that he was shot without cause, whereas the defendant, for such shooting, claimed self-defense.

The daughter of deceased (wife of defendant) gave testimony the tendency of which was that her father was killed without cause, when there was no bad feeling existing between him and the defendant. Upon cross-examination of this witness, the defendant propounded certain questions seeking to...