Tuggle v. State

• Decision Date: 15 January 1924
• Docket Number: 6 Div. 444.
• Citation: 19 Ala.App. 541,98 So. 815
• Parties: TUGGLE v. STATE.
• Court: Alabama Court of Appeals

98 So. 815

19 Ala.App. 541

TUGGLE v. STATE.

6 Div. 444.

Court of Appeals of Alabama

January 15, 1924

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

William L. Tuggle was convicted of assault with intent to murder, and he appeals. Reversed and remanded.

J. B Powell, of Jasper, for appellant.

Harwell G. Davis, Atty. Gen., and O. B. Cornelius, Asst. Atty. Gen for the State.

BRICKEN P.J.

From a judgment of conviction for the offense of assault with intent to murder and sentence of from 10 to 11 years, defendant appeals.

The organization of the court as shown by the transcript met every requirement of Supreme Court rules 26, 27, 175 Ala. pp. xix, xx, as no question was made against the organization of the court to try this case, or against the lawful power of the court to try it at that term or at that time. The record proper has been examined and is free from error. The insistence in this connection is without merit.

Numerous rulings of the court upon the admission of testimony were excepted to and are now insisted upon as error. It appears that many of these rulings were so palpably free from error we shall refrain from a consideration of them in detail.

Appellant strenuously insists that the court injuriously affected the substantial rights of the defendant by having in several instances admitted in evidence illegal testimony and afterwards of its own motion excluded it. In the case of Davis v. State, 18 Ala. App. 482, 93 So. 269, this court, in dealing with a similar insistence, said:

"When *** illegal testimony has been admitted, it is always a serious question as to how far such testimony, though withdrawn in the most explicit and emphatic manner, has injuriously affected the party against whom it was admitted."

And the Supreme Court of Alabama has said:

"This court has always regarded the practice with cautious disapproval." Maryland Casualty

Co. v. McCallum, 200 Ala. 154, Page 816 75 So. 902.

In the instant case, however, we have examined the testimony first introduced and then excluded, and, while such rulings are not to be commended, we are of the opinion that by the action of the court here complained of no error appears to sufficiently affect the substantial rights of the defendant, which necessitate a reversal of the judgment appealed from, and because of these rulings we are not willing to predicate a reversal thereon.

It appears that witness John Mann was an important witness for the defendant, and that his testimony in behalf of defendant, if believed, was very material. On cross-examination of this witness he (Mann) testified: "The feeling between me and Manasco [the alleged injured party] is not good." Over the objection of defendant the state was then permitted to ask the further question of this witness: "He raided you up there two or three times, and they fined you in the mayor's court, didn't he?" And over the objection of defendant the witness was required to answer this question, and the court declined to exclude the affirmative answer of witness, to which ruling the defendant reserved an exception. In these rulings the court committed error necessitating the reversal of this case. It was proper for the court to allow the state to show by this witness that the feeling between him and the prosecutor (injured party) was not good, that character of testimony being permissible as tending to affect his credibility; but, where such feeling or bias is admitted, it is not permissible to allow a party to go further and show the cause of such feeling or bias, and the details of the transaction or occurrence which is supposed to have engendered the bad feeling. In Allen v. Fincher, 187 Ala. 599, 602, 65 So. 946, 948, the Supreme Court said:

"As the multiplication of issues is not desirable, it would seem that the better rule would require the party against whom a witness is testifying to develop, on cross-examination, the fact of the bias of the witness. If, on the cross-examination, the witness admits the fact showing his bias, then there should, at once, be an end of the matter."

It is very evident that the purpose of the...