Opinion
7 Div. 113.
August 2, 1951. Rehearing Denied August 21, 1951.
Appeal from the Circuit Court, Etowah County, J.H. Disque, Jr., J.
Conforming to opinion of the Supreme Court in response to certified question, 256 Ala. 111, 54 So.2d 628, which is as follows:
To the Honorable, The Court of Appeals of Alabama
Judicial Building Montgomery, Alabama
Dear Sirs:
The Court of Appeals under the provisions of § 88, Title 13, Code of 1940 has certified for our answer the following:
"The Judges of this court are in disagreement and 'unable to reach an unanimous conclusion' as to certain controlling questions in the case of Chastain v. State, from Etowah Circuit Court, now pending in this court.
"Our court has under consideration in this case the following written charge:
" '18. I charge you gentlemen of the jury that the absence of sufficiently satisfying evidence before the jury may offer grounds for a reasonable doubt of the defendant's guilt, in which event you would acquit the defendant.'
"The Supreme Court in Carwile v. State, 148 Ala. 576, 39 So. 220, held that charge 8 was good and should have been given. Charge 8 was as follows:
" 'The absence of sufficient satisfying evidence before the jury may offer ground for reasonable doubt of the defendant's guilt.'
"In Griffin v. State, 150 Ala. 49, 43 So. 197, 199, the Supreme Court by McClellan, Jr., observed:
" 'Refused charge numbered 22 is as follows: "The absence of sufficiently satisfying evidence before the jury may offer ground for reasonable doubt of defendant's guilt." This charge was well refused, since it substitutes the word "offer" for the word "afford." The writer is of the opinion that, if correctly worded, the charge should have been refused, because, among other reasons, it is indefinite and uncertain, in that it does not hypothesize of what the jury must be "sufficiently satisfied," and, besides, assumes the absence of evidence.'
"In the case of Gaston v. State, 161 Ala. 37, 49 So. 876, 878, the charge under consideration was:
" '(21) I charge you that the absence of sufficiently satisfying evidence may be a ground for reasonable doubt of defendant's guilt.' (Italics ours.)
"McClellan, Jr., again speaking for the court, held:
" 'Charge 21 has been approved as charge 8 in Carwile's Case, 148 Ala. [576], 585, 39 So. 220.'
"In attempting to reconcile these authorities, the Judges of our court have disagreed and therefore, as authorized by law, the following abstract question is hereby certified to your court for an opinion as guidance to our court in said cause, towit:
"1. Does the charge under consideration state a correct proposition of law?"
Charge 18 does not state a correct proposition of law. We agree with the writer of the opinion in Griffin v. State, 150 Ala. 49, 43 So. 197, when he said: "it is indefinite and uncertain, in that it does not hypothesize of what the jury must be 'sufficiently satisfied,' and, besides, assumes the absence of evidence."
LIVINGSTON, C. J., and BROWN and FOSTER, JJ., concur.
LAWSON and SIMPSON, JJ., dissent.
E.G. Pilcher, Martin Hinton and H.C. Orme, Jr., all of Gadsden, for appellant.
A witness may not be impeached on immaterial matter. Endsley v. State, 26 Ala. App. 605, 164 So. 396; Nolan v. State, 207 Ala. 663, 93 So. 529. It is improper, even on cross-examination, to ask questions eliciting witness' knowledge of the conduct or particular acts of the person whose character is in issue. Moulton v. State, 88 Ala. 116, 6 So. 758, 6 L.R.A. 301; Way v. State, 155 Ala. 52, 46 So. 273; May v. State, 218 Ala. 656, 120 So. 163. Refusal of defendant's requested charges was error. Terry v. State, 17 Ala. App. 527, 86 So. 127; Kennedy v. State, 140 Ala. 1, 37 So. 90; Caldwell v. State, 160 Ala. 96, 49 So. 679; Gaston v. State, 161 Ala. 37, 49 So. 876.
Si Garrett, Atty. Gen., and Thos. F. Parker, Asst. Atty. Gen., for the State.
When defendant testifies as a witness, his credibility may be impeached like any other witness. Stover v. State, 24 Ala. App. 596, 139 So. 573. Erroneous admission of evidence is not ground for reversal, if the fact testified to is proved by other evidence not objected to. Crenshaw v. State, 205 Ala. 256, 87 So. 328. A witness testifying as to defendant's good character can be cross-examined as to whether he had heard of defendant's trial for commission of a similar offense. Cox v. State, 13 Ala. App. 265, 69 So. 240; Lewis v. State, 14 Ala. App. 72, 71 So. 617; Sparks v. State, 23 Ala. App. 257, 123 So. 292; Lowman v. State, 161 Ala. 47, 50 So. 43; Williams v. State, 144 Ala. 14, 40 So. 405. A witness to character may be cross-examined as to what he has heard in the community touching the character in question. Montgomery v. Crossthwait, 90 Ala. 553, 8 So. 498, 12 A.L.R. 140, 24 Am.St.Rep. 832. The court will not be put in error for refusing charges covered by those already given. Lowman v. State, supra; Terry v. State, 17 Ala. App. 527, 86 So. 127.
On an indictment charging murder in the first degree, the defendant was convicted of murder in the second degree and his punishment fixed at 10 years imprisonment in the penitentiary. From the judgment of conviction and the action of the court in overruling the motion for a new trial this appeal is prosecuted.
We see no necessity for detailing the testimony. The evidence is without dispute that appellant killed Rowan Cowan, his daughter's sweetheart, by shooting him with a rifle. The killing occurred at defendant's home. The principal witnesses for the State were defendant's wife and children. Their testimony tended to prove the defendant guilty of murder. Appellant's testimony and that of his witnesses tended to show that he shot in self defense.
The killing being admitted, the question of whether the defendant was justified in so doing was, under the conflicting testimony, for the determination of the jury.
State's witness, Sue Chastain, in response to a question by defendant's counsel, stated she was the owner of the premises occupied by defendant as his home. Later, as a witness in his own behalf, defendant testified, both on direct and cross examination, that he held the title to the property. Whereupon, the State, over defendant's objection, introduced evidence by defendant's wife showing title in Sue Chastain. The defendant, having first brought out the testimony complained of, cannot predicate error upon the ruling of the court in admitting immaterial evidence in rebuttal of immaterial evidence introduced by him. Morgan v. State, 88 Ala. 223, 6 So. 761; Winslow v. State, 92 Ala. 78, 9 So. 728; Royal Insurance Company v. Robertson, 242 Ala. 460, 6 So.2d 880; Bradford v. Birmingham Electric Company, 227 Ala. 285, 149 So. 729; Windham v. Hydrick, 197 Ala. 125, 72 So. 403.
Defendant's witness, Frank Ledbetter, having testified that he knew defendant's reputation for peace and quietude and that it was good, the court properly allowed the State to ask witness on cross examination, this question: "(Q) Did you hear that in 1948 his wife took out a warrant for him, for assault and battery?" The witness answered "No."
The question was competent for the purpose of testing the value and weight of the evidence of the witness. The law is well settled that a character witness may be asked on cross examination if he had heard of specific acts of misconduct on the part of defendant, but may not be questioned as to the fact of such particular acts. Bowen v. State, 217 Ala. 574, 117 So. 204; Thompson v. State, 100 Ala. 70, 14 So. 878; Jones v. State, 31 Ala. App. 504, 19 So.2d 81; Mullins v. State, 31 Ala. App. 571, 19 So.2d 845; Vinson v. State, 32 Ala. App. 74, 22 So.2d 341, certiorari denied 247 Ala. 22, 22 So.2d 344; Williams v. State, 144 Ala. 14, 40 So. 405.
The same question was propounded, without objection or exception, to other of defendant's character witnesses, and the answer of each was in the negative.
Notwithstanding no error was committed in this respect and the answers to the questions were not harmful to defendant, at the close of the examination of the character witnesses, on motion of the defendant to exclude this testimony the court instructed the jury as follows:
"I'm going to sustain the motion, gentlemen, and, gentlemen of the jury, you won't consider any reference to any warrant against this defendant for an assault and battery. Just forget that those questions were asked, gentlemen; just erase all of that matter from your minds entirely."
Defendant's requested charge 9 was refused without error. Waller v. State, 32 Ala. App. 586, 28 So.2d 815 and cases there cited.
The history of refused charge 2 was in Bringhurst v. State, 31 Ala. App. 608, 20 So.2d 885. Its refusal was without error.
Requested charge 11 was properly refused. Bringhurst v. State, 31 Ala. App. 608, 20 So.2d 885.
Refused charge 12 was amply covered by charges given for defendant and by the oral charge.
Requested charge 14 refused to defendant was approved in the following cases: Brown v. State, 118 Ala. 111, 23 So. 81; Gregory v. State, 140 Ala. 16, 37 So. 259; Howard v. State, 151 Ala. 22, 44 So. 95; Baker v. State, 19 Ala. App. 437, 97 So. 901; Wilson v. State, 14 Ala. App. 87, 71 So. 971. But was held bad in the following cases: Browning v. State, 28 Ala. App. 129, 180 So. 105; Rountree v. State, 20 Ala. App. 225, 101 So. 325; Ex parte State ex rel. Atty. Gen. Baker v. State, 210 Ala. 320, 97 So. 903; Deloney v. State, 225 Ala. 65, 142 So. 432.
Requested charges 16 and 22, which are identical, were properly refused on the authority of Hurston v. State, 235 Ala. 213, 178 So. 223.
Under the provisions of Section 88, Title 13, Code of 1940, the question of the correctness of refused charge 18 was certified to the Supreme Court. The court held that said charge does not assert a correct proposition of law. (The Reporter will set out the opinion of the Supreme Court).
Refused charge 32 was not applicable. The guilt of the defendant did not depend upon the testimony of a single witness. Powell v. State, 20 Ala. App. 606, 104 So. 551; Wilson v. State, 34 Ala. App. 219, 39 So.2d 250.
Charge 23 was amply covered by other charges given at the request of defendant.
Charges 25, 26 and 27 were covered by the oral charge and numerous charges given for defendant.
Refused charges 36, 40 and 41 were amply and fairly covered by court's oral charge.
Charge 33 asserts correct proposition of law but was fairly and substantially covered by court's oral charge.
Charges 34, 35, 38, 39 and 42 omit essential elements incident to doctrine of self defense and were properly refused.
Charge 29 was approved in Wilson v. State, 243 Ala. 1, 8 So.2d 422, but was fairly and substantially covered by court's oral charge.
A careful search of the record discloses no errors prejudicial to appellant and the judgment of the trial court is affirmed.
Affirmed.
The charge about which you inquire, Charge 18 in the case of Chastain v. State, from Etowah Circuit Court, now pending in your court, is in all material respects the same as Charge 8 which this court held was good and should have been given in Carwile v. State, 148 Ala. 576, 39 So. 220.
Charge 22 which this court held refused without error in Griffin v. State, 150 Ala. 49, 43 So. 197, was in the exact language of the charge considered in Carwile v. State, supra. No reference is made in the opinion in Griffin v. State to the holding in Carwile v. State, supra. As we construe the opinion in the Griffin case, the action of the court was based on the fact that Charge 22 in that case used the word "offer" rather than the word "afford." Yet the word "offer" was used in the charge held good in Carwile v. State, supra. I do not understand that the court concurred in the views of the writer of the opinion, Justice McClellan, that even if Charge 22 had been correctly worded it should have been refused because it is indefinite and uncertain in that it does not hypothesize of what the jury must be "sufficiently satisfied" and also assumes the absence of evidence.
Justice McClellan, who wrote the opinion for the court in the Griffin case, in Gaston v. State, 161 Ala. 37, 49 So. 876, evidently had his attention called to the case of Carwile v. State, supra, and upon the holding in that case held that Charge 21 in the Gaston case had been approved in the Carwile case. The only distinction between the charge in the Carwile case and that under consideration in the Gaston case is that the word "be" was substituted for the word "offer."
In so far as I have been able to determine, the holdings in the Carwile and Gaston cases above referred to have not been expressly overruled, and Gaston's case being the last expression of the court, I am of the opinion that Charge 18 should be held to be a good charge. However, I think the charge is nothing more than a reasonable doubt charge and its refusal should not constitute reversible error where the trial court's oral charge sufficiently covers the law of reasonable doubt.
These charges were refused to defendant:
"2. I charge you gentlemen of the jury that if there is one single fact proved to the satisfaction of the jury which is inconsistent with the defendant's guilt, this is sufficient to raise a reasonable doubt and you should acquit the defendant.
"9. The court charges the jury that the only foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the defendant is guilty as charged in the indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt, and, if the prosecution has failed to furnish such measure of proof, and to so impress the minds of the jury of his guilt, you should find him not guilty.
"11. The court charges the jury that if, upon a consideration of all the evidence, the minds of the jury or any member of the jury is left in a state of reasonable doubt and uncertainty, by the evidence or any part of the evidence, of defendant's guilt, then you cannot convict the defendant.
"14. I charge you gentlemen of the jury that you must find the defendant not guilty, if the conduct of the defendant upon a reasonable hypothesis is consistent with his innocence.
"16. I charge you gentlemen of the jury that if the evidence for the state consists of testimony as to the truth of which the jury has a reasonable doubt, you must not convict the defendant, although you may not believe the testimony of the defendant's witnesses.
"18. I charge you gentlemen of the jury that the absence of sufficiently satisfying evidence before the jury may offer grounds for a reasonable doubt of the defendant's guilt, in which event you would acquit the defendant.
"32. I charge you gentlemen of the jury that if the conviction depends upon the testimony of a single witness, the truth of which you have a reasonable doubt, you cannot convict the defendant and your verdict should be one of not guilty."