93 So. 706 | Ala. | 1922
The trial and conviction was for murder in the first degree, and the death penalty was imposed.
In a criminal case the duty is laid upon this court to "consider all questions apparent upon the record or reserved by bill of exceptions," that are properly presented for our consideration under the statute as construed by this court, and "render such judgment as the law demands." Assignments of error by a defendant appealing are not necessary in a criminal case. Davis v. State,
The fact that the accused was under arrest at the time of the confession did not render his declarations inadmissible, after a proper predicate had been laid. Curry v. State,
After the defendant, his wife and sister had testified in his behalf, the state introduced as a witness Mr. Bynum, who testified that he was raised in the town of Scottsboro, and had "known Joe Stone 25 or 30 years, and his wife, Aunt Lou, and sister, Emma, about same time; their general character is bad." On objection the testimony was "limited to truth and veracity" by the court. Witness, continuing, said: "If interested, they are not to be believed on oath." On cross-examination the witness said:
"I don't know what others say about Joe's character for truth. I have never heard it discussed. I have an opinion of my own."
Defendant's counsel moved to exclude the testimony of this witness upon the ground that he "never heard his character discussed as to truth, and don't know what others say" thereof. The court overruled the motion of defendant to exclude this evidence, and duly reserved exception. On defendant's further objection the court excluded the statement that witness "had an opinion of his own." The effect of this ruling declining to exclude this evidence of defendant's general character for truth and veracity was to permit the witness to testify that defendant's general character was bad, and, of his "character for truth," that it was bad, without requiring the witness to declare the proper predicate. He should have been required to testify that he knew the general character of the defendant inthe neighborhood in which he lived, or had lived, before being permitted to state his "general character is bad," and before declaring that, "if interested," defendant "was not to be believed on oath." On cross-examination the insufficiency of knowledge of the witness was tested, and the admission made that witness did not know what others say about defendant's "character for truth"; that he "never heard it discussed," but that the witness had "an opinion of his own." The fact that thereafter, on defendant's motion, the court excluded the witness' statement that he had "an opinion of his own" did not relieve the injurious effect of the former ruling with respect to evidence of defendant's general bad character and evidence of bad character for truth and veracity without a proper predicate.
It should ever be borne in mind in dealing with character and veracity that the character evidence of a party to the litigation or prosecution and character evidence of such party for truth and veracity are separate and distinct; and the rules applicable are not the same in each of the dual testimonial capacities that results, when an accused offers himself as a witness: (1) In "his capacity as an accused"; and (2) "his capacity as a witness." Hughes on Ev. p. 43, § 9; 1 Wharton's Crim. Ev. (10th Ed.) § 433, p. 908; Smith v. State,
When an accused has testified as a witness, the credibility of his testimony may be impeached like that of any other witness. One method of impeachment is by the state showing his general bad character, or general reputation for truth and veracity in the neighborhood in which he lived or conducted his business, or in which he had theretofore lived or had business dealings. This testimony may cover the time to that of his trial. A defendant so impeached, if he wishes and *52
can, may sustain his general character or reputation for truth and veracity by evidence covering the period to the time indicated. Charley v. State,
"It was not sought to elicit the fact that the witness knew the general character or reputation of the defendant * * * in the neighborhood in which he lived," or had theretofore lived.
The question for decision involves no right of defendant to introduce negative testimony in support of his good character, which right has been long recognized by the old text-writers and authorities. Mr. Justice Somerville, in Hussey v. State,
"That the best character is generally that which is least talked about," and that "the courts have found it necessary to permit witnesses to give negative evidence on the subject, and to state that 'they never heard anything against the character of the person on whose behalf they have been called.' " Wharton, Cr. Ev. (8th Ed.) § 58; 1 Wharton, Law Ev., § 49; 1 Taylor's Ev., § 350; 1 Bishop, Crim. Proc. (3d Ed.) § 1117.
Early cases in this and other jurisdictions are Reg. v. Cary, 10 Cox Cr. Cas. 25; Hadjo v. Gooden,
It is a question of defendant's character or reputation, and whether properly made the subject of inquiry in a court of justice; and, if so, it means the estimate in which the individual is generally held in the community in which he resides or has resided. Glover v. State, supra; Watson v. State,
The impeaching witness who has sworn to the general character of a defendant or has impeached a defendant or witness for truth and veracity may be properly cross-examined as to the sources of knowledge of the witness on which he bases the opinion given of the general reputation of defendant or of witness in the respects indicated. It follows on reason and authority that the witness called to speak as to the character or reputation of the defendant or his witness cannot give the results of his own personal experience and observation, or express his own opinion, or merely speak from "rumor," but must have the "requisite knowledge" — the fact of his general character or reputation in the neighborhood where the defendant resides or has resided or does business or has done business, in connection with the personal observation of the witness, must be the basis of the evidence he is permitted to give. Haley v. State,
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN, SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.