Wells v. State

• Decision Date: 06 December 1973
• Citation: 292 So.2d 471,292 Ala. 256
• Parties: In re Charles Eugene WELLS, Alias v. STATE of Alabama. Ex parte Charles Eugene Wells. SC 511.
• Court: Alabama Supreme Court

Page 471

292 So.2d 471

292 Ala. 256

In re Charles Eugene WELLS, Alias v. STATE of Alabama.

Ex parte Charles Eugene Wells.

SC 511.

Supreme Court of Alabama.

Dec. 6, 1973.

J. Massey Relfe, Jr., Birmingham, for petitioner.

William J. Baxley, Atty. Gen., Montgomery, and Herbert H. Henry, Asst. Atty. Gen., Birmingham, for the State.

BLOODWORTH, Justice.

We granted certiorari to review a decision of the Court of Criminal Appeals, 52 Ala.App. 351, 292 So.2d 465.

Briefly, the facts of the case are as follows. On the evening of August 9, 1968, petitioner Wells went to the house where his wife and ten children were living. An argument ensued between petitioner, his wife, Elsie Wells, his son, Ronnie Wells, and his daughter, Brenda Blackmon. According to the testimony, during the course of the argument, petitioner fired several shots with a .25 caliber pistol at his wife, and Ronnie Wells fired a shotgun in defense of his mother and sister. The shots resulted in the death of Elsie Wells and the wounding of Brenda Blackmon. There was some conflict in the testimony as to whether Brenda was hit with a pistol bullet or shotgun slug.

Petitioner contends the trial court erred to a reversal in sustaining the state's objection to the following question asked of state's witness, Mrs. Blackmon, daughter of petitioner, viz:

'Q. In fact, I'll ask you this, if it isn't a fact that you instigated a prosecution against your father for assault with intent to murder on you. Isn't that a fact?'

(During a colloquy with the trial judge, the word 'instigated' was apparently changed to 'initiated.')

The Court of Criminal Appeals affirmed, holding: (1) there was no definite ruling by the trial judge on this point; and (2) if there were such ruling, it was within the discretion of the trial judge to control the extent of cross-examination.

We reverse and remanded.

We must respectfully disagree with the author of the opinion (an able and distinguished veteran trial judge and practitioner) that (1), there was no definite ruling by the trial judge. The trial judge clearly sustained the objection and cautioned the attorneys not to go into the matter, that it was collateral and highly prejudicial.

As to the Court of Criminal Appeals' holding (2), that such ruling was within the trial court's discretionary power to control the cross-examination, we do not altogether agree, as we shall hereinafter indicate.

The Court of Criminal Appeals cites Benefield v. State, 44 Ala.App. 339, 208 So.2d 449, cert. den. 282 Ala. 19, 208 So.2d 455 (1967) (Headnote 5, Criminal Law k1153(4), Witnesses k372(1)), for the proposition that, in developing interest or bias of a witness, the range of cross-examination rests largely in the discretion of the trial court and that the court's rulings will not be disturbed unless it clearly appears that the defendant was prejudiced by the rulings. We agree this very general proposition of law expresses the rule of our cases.

In contrast, however, there is our case of Green v. State, 258 Ala. 471, 64 So.2d 84 (1953) (Headnote 1 & 2), in which this court reversed a defendant's conviction of murder in the first degree because the trial judge refused to permit cross-examination of an important prosecution witness on collateral matters which tended to show bias of the witness. There, this court noted that 'the extent to which a witness may be cross-examined depends in some instances on the importance of his testimony' and quoted approvingly from 74 A.L.R. 1154, viz:

'* * * a witness may be testifying in reference to matters peculiarly within his knowledge, and as to which contradiction is difficult, where the turn of a phrase may control the disposition of the case. In such instances, it is submitted, a very searching inquiry as to circumstances indicating the existence of intellectual bias, or of emotional hostility, should be allowed. * * *'

In Louisville & N.R. Co. et al. v. Martin, 240 Ala. 124, 198 So. 141 (1940), this court stated with regard to cross-examination of a witness to show that witness' bias:

'We are, of course, mindful of the rule that the range of cross-examination rests largely in the discretion of the trial court, and the court's ruling thereon will not be here revised unless it is made clearly to appear that error intervened to the prejudice of the objecting party.

'But the right of cross-examination is a valuable right 'probably and generally the most effective instrumentality for eliciting the witness' 'means of obtaining correct and certain knowledge of the facts to which he bears testimony." (citations omitted)

'The question is discussed in Wilson v. State, 195 Ala. 675, 71 So. 115, 117, with reference to expert witnesses, as here, and we there observed: 'It is usual in cross-examination that great liberty is allowed by the court. * * * And while the right to cross-examine may be afforded the defendant, yet if it is so circumscribed and limited as to strip it of its benefit, the right 'loses its substance and becomes a shadow."'

The court went on to hold that refusal to permit defense counsel to cross-examine plaintiff's witness on collateral matters which indicated bias was reversible error.

Title 7, § 443 provides that, 'the right of cross-examination Thorough and Sifting, belongs to every party as to the witnesses called against him. * * *' (Emphasis added)

It thus appears to be our rule that, notwithstanding the range of cross-examination to develop bias is largely discretionary, where the witness' testimony is important to the determination of the issues being tried, there is little, if any, discretion in the trial judge to disallow cross-examination on matters which tend to indicate the bias of the witness.

Furthermore, our rule is that the fact that a witness has been a complaining witness in another criminal action against the defendant is relevant and material to the issue of the witness' bias. (See Ala. Dig., Vol. 19A, Witnesses, k370(3).)

In Hill v. State, 210 Ala. 221, 97 So. 639 (1923) (Headnote 8), this court held, in a prosecution for murder, it was proper for defense counsel to ask whether a state's witness, and son of defendant, had sworn out a warrant against the defendant on another matter as tending to show feelings of ill will toward the defendant on the part of the witness. (The error in excluding this inquiry was, however, held not to be error to reverse in view of witness' concession of that fact on rebuttal.)

Similarly, in Allen v. Fincher, 187 Ala. 599, 65 So. 946 (1914) (Headnote 8), this court held in an action for slander it was error to exclude testimony showing that a witness for plaintiff prosecuted defendant for a matter connected with the controversy as going to the issue of bias.

In Beal v. State, 138 Ala. 94, 35 So. 58 (1903) (Headnote 1), this court held in a trial for forgery a prosecution witness may be cross-examined on whether or not he prosecuted defendant by swearing out a warrant against him in an action arising out of the same controversy.

And, in Lodge v. State, 122 Ala. 97, 26 So. 210 (1899) (Headnote 1), this court held admissible, to impeach a 14 year old prosecution witness, who was under the control of his parents, evidence that the witness' father, who had instituted the instant prosecution, had also commenced another prosecution against the defendant, as going to the issue of bias. This seems in accord with the general rule. See generally 98 C.J.S. Witnesses § 560 Ls.

Following the rule of these cases, we would have to conclude that the trial judge...