MELTON v. STATE
7 Div. 141
Court of Appeals of Alabama
May 18, 1926
Rehearing Granted June 8, 1926
21 Ala. App. 419 | 109 So. 114
“It is sometimes said that the testimony of a witness at a former trial cannot be read if he is present at the trial, but its admissibility does not depend so much on the presence or availability of the witness as it does on the availability of the testimony; and the testimony of Stewart was just as unavailable as if he had walked over the state line where process could not be served upon him. * * *
“If a witness cannot prevent the use of his testimony by stepping outside the jurisdiction of the court, or the acquiring of an interest or other act which disqualifies him as a witness, it would appear that he cannot defeat the use of testimony given when he was competent, and which was reduced to writing, by claiming a statutory privilege and refusing to testify viva voce when called to the witness stand.”
The above-quoted portion of that decision goes to the spirit of the rule and the reason therefor. We think it sound and peculiarly applicable to the case at bar. Here, witness Emmet Wren, upon the first trial of this case, voluntarily took the stand as a witness and gave testimony of the fact and circumstances involved upon this trial. That he had a right so to elect cannot be questioned. Having elected to testify, his evidence given upon the first trial was competent and legal. Upon the second trial, upon intimation or by instruction from the court, he availed himself of his constitutional right not to testify. By this action his testimony was not available to the state, through no fault of the state, and so far as the effect of his refusal to testify is concerned made his testimony which he had formerly given as inaccessible to the state as if he had been dead or out of the jurisdiction of the court. As stated in the Stewart Case, supra, the admissibility does not depend so much on the presence or availability of the witness as it does on the availability of the testimony; and the testimony of Emmet Wren here, when he reserved the right not to testify, was just as unavailable as if he had moved permanently from the state, or if he had died.
Upon the former trial, this defendant had full right and opportunity to cross-examine this witness. As stated, we think, from what has been said, that the evidence was competent and that the court below ruled correctly in so holding. A different question might be presented if the witness Emmet Wren were on trial.
We see no error of a reversible nature, and therefore affirm the judgment of conviction from which this appeal was taken.
Affirmed.
- Criminal law 336.
Proof that offense was not committed within county entitles defendant to discharge.
- Criminal law 336.
If state fails to prove venue on plea of not guilty, defendant is entitled to verdict of acquittal.
- Criminal law 564(8).
Location of county boundary line to determine venue does not call for expert testimony, but may be proven by general reputation.
- Criminal law 346.
Evidence that certain place was outside of county, but not identified as place where defendant was charged with having made whisky, held properly excluded.
- Criminal law 753(1).
General affirmative charge held properly refused, where evidence on question of venue, presented by plea in abatement, was in conflict.
- Intoxicating liquors 236(19).
Evidence held sufficient to sustain conviction for distilling.
- Criminal law 1171(1).
Solicitor‘s argument in liquor prosecution that “liquor men are better organized than the Ku Klux Klan of Oklahoma,” while not legitimate, held not prejudicial.
On Rehearing.
- Criminal law 706.
Permitting solicitor, in prosecution for distilling, to ask defendant on cross-examination questions which told jury that defendant had shot his brother at some other time, and had possession of prohibited liquor at another time, held erroneous.
- Criminal law 696(2).
Motion to exclude answer to illegal question need not be made, where answer is strictly responsive, and ruling on propriety of question necessarily ruled on admissibility of responsive answer thereto.
Appeal from Circuit Court, Shelby County; E. S. Lyman, Judge.
Leland Melton was convicted of distilling, and he appeals. Reversed and remanded on rehearing.
In his argument to the jury the solicitor made the following statement:
“I want to state something you have learned this week, gentlemen, these liquor men are better organized than the Ku Klux Klan of Oklahoma.”
Defendant objected to this remark, and moved to exclude it.
The evidence was insufficient to sustain a conviction. Biddle v. State, 19 Ala. App. 563, 99 So. 59; Farmer v. State, 19 Ala. App. 560, 99 So. 59; Guin v. State, 19 Ala. App. 67, 94 So. 788; Hanson v. State, 19 Ala. App. 249, 96 So. 655; Knight v. State, 19 Ala. App. 297, 97 So. 163; Lee v. State, 19 Ala. App. 569, 99 So. 56; Williamson v. State, 20 Ala. App. 394, 102 So. 485; Moody v. State, 20 Ala. App. 572, 104 So. 142; Stanley v. State, 20 Ala. App. 387, 102 So. 245; Harbin v. State, 19 Ala. App. 623, 99 So. 740; Ammons v. State, 20 Ala. App. 283, 101 So. 511. Refusal of the court to exclude objectionable remarks of the solicitor on motion of defendant is ground for a reversal. Scott v. State, 110 Ala. 48, 20 So. 468; Thomas v. State, 18 Ala. App. 268, 90 So. 878; Anderson v. State, 209 Ala. 36, 95 So. 171. The rulings of the court on the cross-examination of defendant constituted reversible error. Lowery v. State, ante, p. 352, 108 So. 351.
Harwell G. Davis, Atty. Gen., and Chas. H. Brown, Asst. Atty. Gen., for the State.
Rulings on testimony offered to the plea to the jurisdiction were without error. Amos v. State, 96 Ala. 125, 11 So. 424; Bufkins v. State, 20 Ala. App. 457, 103 So. 902. The affirmative charge was properly refused to defendant. Pellum v. State, 89 Ala. 28, 8 So. 83; Galis v. State, 20 Ala. App. 300, 101 So. 778.
SAMFORD, J. [1, 2] The defendant interposed a plea to the jurisdiction of the court, alleging that, if committed at all, the offense was not committed in Shelby county. This fact was jurisdictional, and, if the plea had been proven, the defendant would have been entitled to his discharge from the circuit court, or, if the state had failed to prove the venue on a plea of not guilty, the defendant would have been entitled to a verdict of acquittal. Bufkins v. State, 20 Ala. App. 457, 103 So. 902.
[3] The location of the boundary line of Shelby county did not necessarily call for expert testimony of a surveyor, but could be proven by general reputation as to where the line was, and, whether the witness knew the exact location of the county line or not, he could from a general repute say whether a particular place was in the county. Tidwell v. State, 70 Ala. 33; Bufkins v. State, 20 Ala. App. 457, 103 So. 902; Miller v. Cullum, 4 Ala. 576; Farmer v. City of Mobile, 8 Ala. 279. The rulings of the court upon admission of testimony by state‘s witnesses on the issue presented by the plea in abatement were free from error.
[4, 5] The defendant undertook to prove by certain witnesses that a certain place was more than one-fourth of a mile outside of Shelby county, but this place was not identified as the point at which defendant was charged with having made whisky, and such evidence was properly excluded. The evidence being in conflict upon the question presented by the plea in abatement, the general affirmative charge was properly refused. Galis v. State, 20 Ala. App. 300, 101 So. 778.
[6] We have noted the long list of citations of authorities to sustain propositions of law announced. We are familiar with these decisions and the principles they announce, but none of these are applicable to the case at bar. The defendant and two others were found at a whisky still in Shelby county. The still was in operation, the fermented beer was there in large quantities, the defendant and two others were walking about the still, the defendant had smut on his hands and face, and still slop on his clothes, and, when the officers came, he fled. The evidence was sufficient to make the question of guilt a jury question, and we would not be authorized to disturb their verdict.
[7] The remark of the solicitor to which exception was taken ought not to have been made. Such statements have no place in legitimate argument, but this case was fairly tried and presented to the jury under a clear charge of the court. Upon the whole record we do not think the remark of the solicitor is sufficient error upon which to predicate a reversal.
The refused charges, when stating correct principles of law, are covered by the court‘s oral charge.
We find no error in the record, and the judgment is affirmed.
Affirmed.
On Rehearing.
[8] On cross-examination of defendant the solicitor was allowed to ask this question: “Were you living at the same place at the time they went there and found all that whisky in your barn?” This question was objected to, objection was overruled, and exception reserved. The solicitor was also allowed to ask defendant on cross-examination: “At the time you shot your brother down there, were you living” (at the same place). Objection and exception to this question was taken. The court overruled the objection on the theory that the evidence tended to fix time and place of the offense for which the defendant was being here prosecuted. Both of these questions assumed as proven facts irrelevant to this issue, and facts which, if true, could only have the effect of prejudicing the defendant before the jury trying his case. It said to the jury: Whether guilty here or not, this defendant at one time shot his own brother, and he was also at another time in possession of a quantity of liquor. The method of examination was manifestly unfair, and should not be allowed. The form of the questions asked had the effect of getting into the
[9] There is a line of cases which hold that, where motion to exclude the answer to an illegal question is not made, the error of the court in overruling the objection to the question is waived. Haney v. State, 20 Ala. App. 236, 101 So. 533. But this rule does not obtain where the answer is strictly responsive to the question and the ruling of the court on the propriety of the question necessarily ruled on the admissibility of a responsive answer thereto as evidence. Troy Lbr. & Con. Co. v. Boswell, 186 Ala. 409, 65 So. 141.
The opinion is extended, application for rehearing is granted, and the judgment of the lower court is reversed, and the cause is remanded.