Opinion
4 Div. 275.
April 9, 1974.
Appeal from the Circuit Court, Russell County, James B. Caldwell, J.
Charles E. Floyd, Phenix City, for appellant.
The trial court committed error requiring a new trial for the defendant when it overruled and denied the motion of the defendant that a deputy sheriff, namely, Charlie King, be placed under the rule concerning witnesses as all other witnesses at the trial of the defendant, when the said deputy would be a material witness in behalf of the State and had served subpoenas upon witnesses and summons upon member of the jury venire for the trial of the defendant, and did remain in the courtroom during the entire time of the trial of the defendant both prior to and subsequent to his testimony as a witness. Chancellor v. State of Alabama, 291 Ala. 413, 282 So.2d 242; Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424; Oliver v. State, 232 Ala. 5, 166 So. 615; Owens v. Florida, 68 Fla. 154, 67 So. 39; Miles v. State, 261 Ala. 670, 75 So.2d 479. Anything which tends to show bias or inclines the witness to swear against a defendant is relevant and the range of external circumstances from which probable bias may be inferred is infinite. Sowell v. State, 30 Ala. App. 18, 199 So. 900; McElroy, The Law of Evidence in Alabama, Vol. 1, Sec. 149.01 and Sec. 149.01(9).
William J. Baxley, Atty. Gen., and John M. Gruenewald, Asst. Atty. Gen., for the State.
Exclusion of witnesses from the courtroom is entirely a matter of discretion with the trial court, and not of right; this discretion is not reviewable. DeFranze v. State, 46 Ala. App. 283, 241 So.2d 125; Beddow v. State, 39 Ala. App. 29, 96 So.2d 175, Id. 266 Ala. 694, 96 So.2d 178, Id. 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414. To be admissible, tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main event. Smitherman v. State, 33 Ala. App. 316, 33 So.2d 396; Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216. The extent of cross-examination on irrelevant facts, for the purpose of testing bias or credibility of the witness' testimony is a matter resting largely in the discretion of the trial court, and his ruling will not be disturbed unless it appears that he has abused his discretion to the prejudice of the complaining party. Nelson v. Johnson, 264 Ala. 422, 88 So.2d 358.
Appellant-defendant, an indigent at the time of the trial and on this appeal, was indicted for burglary in the first degree and convicted therefor. The charge was that of burglarizing the occupied dwelling in the nighttime with intent to steal. The sentence was fifteen years in the penitentiary.
I.
Contention one is that the trial court erred in permitting a deputy sheriff, a material witness for the state, to be excused from the invoked rule of sequestration for the witness and permitted him to remain in the courtroom during the trial.
The deputy had served attendance subpoenas on both the jurors and witnesses in the case. He did not serve as bailiff of the trial jurors nor did he have charge of them any time during the trial.
There was no error in such excusal. The action of the court was discretionary. Ledbetter v. State, 34 Ala. App. 35, 36 So.2d 564, cert. den., 251 Ala. 129, 36 So.2d 571; Alabama Digest, criminal Law, 665(2).
II.
Contention two is that the trial court committed reversible error in sustaining the state's objections to certain questions of the counsel for the defendant to the victim of the burglary. The purpose of the questions was to show the victim's social relationship with the defendant's mother. An objection was sustained to a question, "Mr. Floyd: Do you still see her?" An objection was also sustained to the question, "How did you help his mother?"
Counsel for the defendant argues in his brief that he should have been allowed by the court to go into such relationship and as to whether or not such relationship was continuing, and thereby establish interest or bias on the part of the victim. We state parenthetically that the victim was robbed of some money by the defendant.
It appears to us that the evidence was remote and irrelevant in its objective and would shed no light on the existence of bias.
Besides, it was proper for the defendant first to lay a predicate by first asking the witness as to the state of his feelings toward the defendant, and if he denies bias, then resort may be had to facts tending to show it. Maples v. State, 44 Ala. App. 491, 214 So.2d 700(7). This was not done. Such procedure is not necessary at all times. Wells v. State, 292 Ala. 256, 292 So.2d 471(4).
The trial court did not err in sustaining the state's objections to the questions, supra. We find no error in the record. The judgment of conviction is affirmed.
The foregoing opinion was prepared by the Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the court.
Affirmed.
All the Judges concur.