469 So. 2d 1321 | Ala. Crim. App. | 1985
John Charles Neary was indicted and convicted under a three-count indictment charging trafficking in cannabis and cocaine and the possession of various controlled substances. Alabama Code 1975, §§
At trial, on cross examination by the prosecution, Neary testified, without objection, that in 1976 in New York he pled guilty to a misdemeanor for possession of marijuana and was sentenced to three years' probation and received a $3,000.00 fine.
In instructing the jury, the trial judge stated:
"Now, concerning the testimony of the witness, you have heard evidence of the testimony that the defendant has previously been convicted of, and I don't remember the exact charge as it was listed out of the State of New York, but it was possession of marijuana, as I recall it, in the State of Alabama we would call it violation of uniform Alabama controlled substances act, however, since it is out of a different jurisdiction I believe it would be possession of marijuana out of New York. Now, this is known as a crime involving moral turpitude. Now, as a matter of law, it is the law that if a witness has heretofore been convicted of a crime involving moral turpitude it goes to his credibility as a witness. In other words, you may take this into account in determining how much weight and how much credibility you will give to his testimony as a witness and that is the sole purpose for which this evidence is admitted. Now, you might in some way think that since he was guilty of an offense in New York that that makes him guilty of this. That is not the reason for which that testimony is admitted. That testimony was admitted because it has been determined that that offense is what is known as a crime involving moral turpitude and as I said, that is the sole purpose for which that testimony was admitted as to how that would weigh as to his credibility as a witness."
Proper and timely objection was made to this portion of the oral charge.
A conviction for an offense involving moral turpitude can affect a defendant's credibility and the weight the jury is to give his testimony. Johnson v. State,
The misdemeanor and felony offenses of possession of marijuana are not crimes involving moral turpitude. Ex parteMcIntosh,
In State v. Teague,
In reversing and remanding this cause, we make no determination on the validity of the search warrant. The matter of the vagueness of the warrant was raised only after an evidentiary hearing had been held and the trial judge had denied the defendant's motion to suppress. On appeal, the State argues that this issue was not even raised in the trial court. This confusion is obviously due to the manner in which the issue was presented to the circuit court and the fact that different judges presided at the suppression hearing and at trial. It is to the benefit of both the prosecution and the defense that we leave this issue open for the presentation of further evidence and argument guided by the principles we have set out in Teague, supra.
The judgment of the circuit court is reversed and the cause remanded.
REVERSED AND REMANDED.
All Judges concur. *1324