63 So. 15 | Ala. Ct. App. | 1913
— This case has been before the Supreme Court on a former appeal. — Watts v. State (Sup.) 59 South. 270. Many of the questions presented in this transcript, going to the rulings of the trial court on the evidence, are the same, or involves the same matters, that were considered and disposed of on the former appeal, and will not be again discussed.
The state introduced as a Avitness on rebuttal Dr. C. W. Williams, Avho was asked about, and testified on his examination in chief only to, the sanity of the defendant at the time he killed his Avife. On cross-examination by the defendant, this Avitness, in answer to a question as to whether the defendant possessed a good character, testified: “He is considered a good citizen, but not considered a real good man at all.” The solicitor was thereupon, against the proper objection of defendant, permitted on re-examination to ask the following question of' the witness: “I will ask you, Doctor, if prior to that time, the time he killed his wife, you had heard in the discussion of his character that he had killed his first wife.” To this question the witness answered : “Yes, sir; I have heard a good deal said about
It is not to be questioned that, bad tbe defendant brought out by this state’s' witness on cross-examination, as new matter about which be bad not been examined on bis-direct examination, that tbe defendant possessed a good character, tbe state ón re-examination could have cross-examined tbe witness with respect to this new matter, injurious to and in opposition to tbe state’s contention, brought out by tbe defendant, as fully as if the' witness bad been introducéd by tbe defendant in tbe first instance; for, although tbe right of cross-examination guaranteed by tbe Constitution relates to opposing witnesses (Wray v. State, 154 Ala. 36, 45 South. 697, 129 Am. St. Rep. 18, 16 Ann. Cas. 362), and tbe statutory right given “belongs to every party as to tbe witnesses called against him. [italics ours]” (Code, § 4017), yet when new matter is brought out on a cross-examination against tbe interest of the party calling tbe witness in tbe nature of a surprise, tbe party may on re-examination cross him as to it, even though tbe incidental effect may be tbe impeachment of the witness. — Thomas v. State, 117 Ala. 178, 23 South. 665.
However, cross-examination presupposes tbe hostility óf tbe witness, or' that tbe matter testified to upon
Tbe reason for tbe rule, or rather tbe exception to tbe rule, wbicb makes tbe class of questions under discussion on an issue of character admissible only on cross-examination, and renders tbe answers thereto competent evidence solely under this exception, is based on tbe right to test tbe credibility and soundness of tbe opinion of tbe witness, and elicit tbe data on which be testifies, when be has testified to tbe good character of a party as opposed to the contention of the one who subjects the toitness to this test by cross-examination. Tbe witness in this instance was not in any sense an opposing witness hostile to tbe state, nor did be, injuriously to tbe state’s contention on this matter, depose to tbe good character of tbe defendant. Tbe answer elicited was tantamount to saying, in effect, that while tbe defendant was considered a good citizen, be was not a man of good character. Tbe statement was in no sense equivalent to saying that tbe defendant was a man of good character, and only in that event would tbe state have the right on re-examination to cross-examine its own witness with respect to particular rumors affecting tbe good character testified to, for tbe purpose, not of proving or disproving tbe defendant’s good character as a matter of independent evidence, but only as affecting tbe bias of a hostile witness, or tbe extent of tbe information and credibility to be given to tbe testimony of
It could not be doubted for a moment that, had the Avitness Williams testified in ansAver to the question put to him by defendant's counsel, on the issue of the defendant’s character that it Avas not good, or bad, it would then be incompetent and improper to permit the state to cross:examine the Avitness for the purpose of supporting and lending color to his own testimony, by bringing out as independent evidence the rumors and reports concerning the conduct or particular acts he had heard as establishing the bad character of the defendant as deposed by him, and yet in effect there would be no substantial difference as a legal principle in declaring this to be the correct rule than holding that the state, under the conditions shoAvn by this record, should be permitted to elicit from its own witness (Williams), as independent evidence, Avhat he had heard affecting the defendant’s character in support of and to lend color to his statement, favorable to the state’s contention on this issue, that the defendant was “not considered a real good man at all.”
The defendant had introduced proof in support of his plea of insanity, and the court committed no error in admitting the testimony of the various witnesses on rebuttal, who testified to the sanity of the defendant.—Howard v. State, 172 Ala. 402, 55 South. 255, 34 L. R. A. (N. S.) 990.
We find no reversible error in any of the other rulings of the court on the evidence.
The correct propositions of Iuav contained in the refused charges (aside from the charge above referred to in this opinion) seem to be fully covered by the numerous given instructions requested by the defendant. These charges are all faulty, some of them patently bad, and as the case must be reversed for the errors pointed out, we do not deem it necessary or beneficial to discuss in detail charges that may have no connection with another trial.
Reversed and remanded.