Garner v. State

58 So. 213 | Ala. Ct. App. | 1912

PELHAM, J.

The defendant’s conviction of selling whisky in violation of the prohibition laws was based on the evidence of one Jack Jennings, Avho was examined as a Avitness for the state and testified to having purchased a pint of whisky during the forenoon on Christmas Eve, 1909, from the defendant in his place of business, a restaurant, located in the city of Anniston. The Avitness stated on cross-examination that he Avas somewhat under the influence of whisky at the time of the transaction. The defendant testified that he Avas not in his place of business during the forenoon of the day in question after 8:30 o’clock in the morning; that he did not return until 2 o’clock in the afternoon, and that he did not sell whisky to the state’s witness as testified by him; that he did not see Jennings on that day Avhile he (defendant) was at his store. One Jeff Furguson, who was examined as a witness for the defendant, testified that lie was in the defendant’s place of business during all of tbe forenoon of tbe day in question; that be was in charge of tbe defendant’s business as an employee; that .the defendant was not there after 8:30 o’clock in tbe morning until about 2 o’clock in tbe afternoon; and that tbe state’s witness Jennings was not in tbe defendant’s place of business on tbe forenoon in question. Testimony in behalf of tbe defendant, by bis witnesses Law Davis and W. H. Marion, tended to show that tbe state’s witness bad made conflicting statements in reference to the transaction and sought to obtain money from tbe defendant in connection with bis (Jennings) testimony as a witness in tbe case. Tbe defendant introduced two witnesses who testified to tbe good character of tbe defendant, and tbe state introduced two witn esses who testified to tbe good character of tbe state’s witness.

On the cross:examination of tbe state’s witness, tbe defendant’s counsel asked him, “Where did you go from there?” having reference to tbe time and place of tbe illegal transaction in question testified to by tbe state’s witness. Tbe solicitor objected to tbe question, and tbe court sustained tbe objection, and refused to permit it to be asked. If tbe state’s witness bad testified truthfully on bis direct examination, the defendant was undoubtedly guilty, and tbe defendant necessarily must rest upon discrediting or showing the falsity of the testimony of this witness. Under such circumstances the range of cross-examination should not be restricted within bounds so narroAv as not to embrace questions affording the defendant a reasonable opportunity to test tbe accuracy, and show, if be can, tbe falsity of tbe statements of the Avitness as to his whereabouts, etc., just prior to or immediately after the transaction in question. Tbe defense depended upon showing that tbe testimony of the state’s witness was a fabrication, and the defendant’s right of cross-examination, if so abridged and confined to snch limits as to be useless to him, amounts to a denial of an absolute and valuable right; for, while the court has a large discretion as to the range and extent to be permitted on cross-examination, the discretion does not extend to the denial of cross-examination going to substantial matters within legitimate bounds. The power of cross-examination should not be curtailed to an extent that it would not serve its purpose of being an “efficacious means available for the exposure of artful fabrications of falsehood by witnesses in our courts of justice.—Davis v. Hays, 89 Ala. 563, 8 South. 131.

No doubt the court’s ruling was based on the idea that it was not permissible to prove any subsequent act of the witness after purchasing the whisky, which act constituted the offense charged; but it is not a question of whether such testimony was admisible with, reference strictly to the main transaction. The range of inquiry on cross-examination is not confined to such limits, but must, of necessity, have greater latitude.—Clark v. Ziegler, 85 Ala. 154, 4 South. 669; Davis v. Hays, supra. The purpose and object in propounding the question is clearly shown, not only to have reference to proving where the witness went after he bought the whisky, but to challenge and test by pertinent and substantive cross-examination the truth of the witness’ statement of having been at the defendant’s place of business at the time testified to by him on direct examination. It was important to the defendant to sift the testimony of the state’s witness in reference to his whereabouts and movements in connection with having been at the place at the time testified to by him, with the object of destroying the effect or showing the fabrication of the testimony given on direct examination, and the right of the defendant to do this in an appropriate way, it seems to ns, was denied by the court in refusing to permit the question to be propounded.—Yarbrough v. State, 115 Ala. 92, 22 South. 534. See, also, Buist v. Guice, 105 Ala. 518, 16 South. 915; Insurance Co. v. Copeland, 86 Ala. 551, 6 South. 143, 4 L. R. A. 848; Snell v. Roach, 150 Ala. 469, 43 South. 189.

The erroneous ruling of the court in refusing to allow the defendant to subject the witness Jennings to proper cross-examination within legitimate bounds must work a reversal of the case, and a discussion of the other questions presented is unnecessary.

Reversed and remanded.