74 So. 366 | Ala. | 1916
Lead Opinion
— One Johnson was convicted of violating the prohibition law. On the trial the defense introduced a witness who testified to defendant’s good character. On the cross-examination of this witness, over the objection and exception of the defendant, the state’s counsel was permitted to ask the witness if he had not been recently convicted of the offense for which the defendant was on trial. The witness answered: “Twice— city court and circuit court.” For this ruling the Court of Appeals has reversed the trial court and remanded the cause.
1. The latitude allowed upon the cross-examination of a character witness was considered by this court in Carson v. State, 128 Ala. 60, 29 South. 609, where the rule was thus stated:
“Much latitude is allowed upon cross-examination of a witness as to character, even sometimes to the extent, within the sound discretion of the trial court, of asking questions which may call for irrelevant evidence. This for the purpose of testing the accuracy, credibility and sincerity of the witness. As to how a witness makes up his .estimate of character is a proper subject of inquiry upon cross-examination.”
This court is committed to the doctrine that the trial court will not be reversed, except in an extreme case of abuse of this discretion, for permitting the cross-examination of a witness on irrelevant and immaterial matters, to test his memory or accuracy, credibility, interest, or sincerity; interpreting the tendency of modern practice to be favorable to great latitude in this regard. — Marler v. State, 68 Ala. 580; Cox v. State, supra; Ingram v. State, 67 Ala. 67; Burger v. State, 83 Ala. 36, 3 South. 319; Lowman v. State, 161 Ala. 47, 50 South. 43. It is evident that in this cross-examination there was no abuse of discretion by the trial court.
2. The testimony was admissible as having a tendency to show the bias or interest of the witness in favor of the cause or the person on trial. — Underhill on Cir. Ev. § 222; Cook v. State, 152 Ala. 66, 44 South. 549; Patton v. State, 197 Ala. 180, 72 South. 401; Bullington v. State, 13 Ala. App. 61, 69 South. 319. In McCormack v. State, 133 Ala. 133 Ala. 202, 207, 32 South. 268, 269, the court said: “The interest of a witness in the cause may always be shown as affecting the credibility of his testimony. It was doubtless upon this theory that the solicitor was permitted on cross-examination of Woodward, the proprietor of the Palace Saloon and the employer of the defendant, to ask him if a prosecution was not pending against him for the same offense.”
Mr. Wigmore defines three different kinds of emotion constituting untrustworthy partiality, viz.: “Bias, interest, and corruption. Bias, in common acceptance, covers all varieties of hostility or prejudice against the opponent personally, or of favor to the proponent personally. Interest signifies the specific inclination which is apt to be produced by the relation between the witness and the cause at issue.”
So, also, independently of any prejudice or feeling as to the parties, the feeling of a witness in respect to the case which is being tried may be brought out to affect his credibility. — State v. Sam, 53 N. C. 150; Cambeis v. Third Ave. R. Co., 1 Misc. Rep. 158, 20 N. Y. Supp. 633.
The application of this principle has found illustration in this state. In Prince v. State, 100 Ala. 144, 14 South. 409, 46 Am. St. Rep. 28, it was held to be error for the trial court to sustain an objection to the question propounded on cross-examination to the state’s witnesses:
“State whether the company you are working for is taking any interest in the prosecution of the defendant.”
The court said: “In weighing testimony the jury ought to be in possession of all facts calculated to exert any influence upon the witness. It cannot be said as a conclusion of law that an employee testifying in a matter in which he knows his employer is interested, personally, or pecuniarily, is, or is not, wholly unbiased. It is proper for the jury to know the character of the interest of the employer, how it is to be affected, and in what way it is manifested. An employer may act from a sense of public duty, or be interested in seeing that another has a fair trial; or it may be that he is actuated by pecuniary interest, or a spirit of revenge, or vindictiveness, and may use his position as employer to bias the evidence of his employee. We think it safe to hold that when an employee is testifying, it may be shown that his employer is interested in the prosecution.” — Harrison v. State, 12 Ala. App. 284, 68 South. 532.
In Mason v. State, 12 Ala. App. 227, 67 South. 715, it was held proper to show on cross-examination of a witness for the accused that the witness had worked for the defendant’s father, on the ground that this was within the rule admitting such evidence to show bias. In the case o f Drum v. Harrison, 83 Ala.
So in Stahmer v. State, 125 Ala. 72, 27 South. 311, a proceeding to raise the assessment of property for taxation, it was held that, where a witness for the taxpayer testified that the value of the property was less than its assessed value, it was competent for such witness to be asked, upon cross-examination, whether or not the assessment of his property had' been raised, in order to show bias on the part of the witness. His social and business relations with the party, his intimacy or hostility, and such other circumstances as might create bias, may properly be considered. — 5 Jones, Ev. §§ 828, 901; McLaughlin v. Mencke, 80 Md. 83, 30 Atl. 603; Magness v. State, 67 Ark. 598, 50 S. W. 554, 59 S. W. 529; 2 Ency. of Ev. 407. See, also, Phillips v. State, 161 Ala. 60, 49 South. 794; Gosdin v. Williams, et al., 151 Ala. 592,
In the instant case, the testimony that the witness had been recently twice convicted of a like offense to the'one for which the defendant was on trial not only illustrated his estimate of the character of the defendant, but also tended to show a possible bias or interest on the part of the witness for the cause or offense for which the defendant was being prosecuted.
There was error in the reversal of the judgment of the trial court. Let the writ be granted, and the judgment of the Court of Appeals be reversed.
Concurrence Opinion
— (concurring). — It was of course not competent to impeach the character of defendant’s character witness by showing that he had been convicted of violations of the prohibition law, since, as properly held by the Court of Appeals, that kind of crime does not involve moral, turpitude. Nor do I think that the fact of such convictions could be shown for any purpose, except on cross-examination, as in the instant case.
But, as illustrative of the mental and moral attitude of the witness towards the offense for which the defendant was on trial, and so, as suggestive of his possible or probable bias against the state in this particular case, I think the trial judge cannot be put in error for allowing him to be interrogated on cross-examination as to his own repeated commission of the same offense. It fairly permits an inference of bias, of more or less value accord
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“The range of external circumstances from which probable bias may be inferred is infinite. Too much refinement in analyzing their probable effect is out of place. Accurate concrete rules are almost impossible to formulate, and where possible are usually undesirable. In general these circumstances should have some clearly apparent force, as tested by experience of human nature, or, as usually put, they should not be too remote.” — 2 Wigmore on Ev. . 949.
The case of Stahmer v. State, 125 Ala. 72, 76, 27 South. 311, referred to in the opinion of Justice Thomas, exhibits an application of the rule in question which, in my opinion, cannot be distinguished from the circumstances of the instant case.
For these reasons, I concur in the conclusion that the action of the trial judge was not revisable or reversible error, and that the judgment of conviction should, as for this ruling, have been affirmed.