Watson v. State

• Decision Date: 02 September 1924
• Docket Number: 4 Div. 954
• Citation: 102 So. 492,20 Ala.App. 372
• Parties: WATSON v. STATE.
• Court: Alabama Court of Appeals

102 So. 492

20 Ala.App. 372

WATSON v. STATE.

4 Div. 954

Court of Appeals of Alabama

September 2, 1924

Rehearing Denied Nov. 18, 1924

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Frank Watson was convicted of burglary and grand larceny, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Watson, 102 So. 494.

Marcus J. Fletcher and J. Morgan Prestwood, both of Andalusia, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

FOSTER J.

The defendant, Frank Watson, and one Albert Dunson, were jointly indicted for burglary and grand larceny, the indictment containing two counts, one charging burglary and one grand larceny. A severance was ordered, and a general verdict of guilty was rendered against the defendant.

The evidence for the state tended to show that the store of one Gus Bryan was broken into and a trunk of pistols taken therefrom; that on the evening before the alleged burglary the defendant was observed looking in the show window of the store at some pistols. There was evidence of a confession by defendant that he and another had broken into the store and had taken a trunk containing pistols therefrom. The evidence for the defendant consisted chiefly of a denial of any participation in the offense, and also a denial of any confession on his part.

On cross-examination Gus Bryan, a witness for the state, was asked, "Did you ask Dunson anything about it?" He answered, "Yes, sir." He was then asked, "What did he say?" Objection of the state to this question was sustained, and defendant excepted. Dunson was jointly indicted with the defendant for the same offense, but was not on trial at the time, and it was not shown that the statement inquired about was made in the presence of the defendant. The question called for hearsay testimony, and the objection was properly sustained. Admissions of guilt of third persons unsworn to are within the rule prohibiting hearsay evidence. Owensby v. State, 82 Ala. 63, 2 So. 764; West v State, 76 Ala. 98; Ott v. State, 160 Ala. 29 49 So. 810.

The whereabouts of Albert Dunson was not relevant to any issue in the case. Moreover, such evidence was afterwards brought out by the defendant and he had the full benefit thereof. Error if any, in excluding evidence is cured by the subsequent admission thereof. Utreinor v. State, 146 Ala. 26, 41 So. 285; Kirby v. State, 151 Ala. 66, 44 So. 38; Roden v. State, 3 Ala.App. 202, 58 So. 72.

Gus Bryan, a state's witness, was recalled for further cross-examination by the defendant, and, after testifying that he went before the grand jury in 1920 when the indictment was found, was asked by counsel for defendant: (1) "Now did you tell the grand jury how many pistols there were?" also (2) "You told the grand jury the kind of store this was, did you?" To which he replied, "I did." Counsel for defendant asked the witness: (3) "Did you tell the grand jury this was a dry goods store?" The court sustained the state's objection to each of the questions numbered 1 and 3, and excluded the answer to question numbered 2, and to each ruling of the court the defendant excepted.

A wide latitude is allowed in the cross-examination of witnesses for the purpose of testing their accuracy, their recollection and their means of knowledge of the facts about which they testify. The extent of the cross-examination is largely in the discretion of the trial court, and on appeal the court will not be put in error if it affirmatively appears that this discretion was not abused, and that the party complaining was not injured in his...