Opinion
4 Div. 404.
May 10, 1938. Rehearing Denied May 24, 1938.
Appeal from Circuit Court, Henry County; D.C. Halstead, Judge.
Ralph Reeves was convicted of grand larceny, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Reeves v. State, 236 Ala. 268, 182 So. 92.
The following charges were refused to defendant:
"1. If there is a probability of defendant's innocence, growing out of all the testimony in the case, then the jury should acquit the defendant.
"2. If the jury believes the evidence in this case, they cannot find the defendant guilty in the count in the indictment charging larceny."
W. L. Lee and Alto V. Lee, III, both of Dothan, for appellant.
Contradictory statements made by a witness out of court, at variance with statements made by him on the stand, are admissible for impeachment purposes when the predicate is properly laid. 70 C.J. 1011, 1019, §§ 1219, 1221; Clifton v. Gay, 21 Ala. App. 412, 109 So. 168; Liberty Life Assur. Soc. v. Woodard, 219 Ala. 24, 121 So. 30. A charge that if there is a probability of defendant's innocence growing out of all the evidence in the case, the jury should acquit the defendant, states a correct charge, and when requested in writing should be given. Shaw v. State, 125 Ala. 80, 28 So. 390; Adams v. State, 175 Ala. 8, 57 So. 591; Davis v. State, 188 Ala. 59, 66 So. 67; Edwards v. State, 205 Ala. 160, 87 So. 179; Lovelady v. State, 24 Ala. App. 502, 136 So. 871.
A. A. Carmichael, Atty. Gen., and Chas. L. Rowe, Asst. Atty. Gen., for the State.
To impeach a witness by contradictory statements, the predicate laid and the questions asked the impeaching witness must be substantially the same as to time, place and person. The question asked here did not conform to the rule. Ex parte Phillips, 188 Ala. 57, 66 So. 3; Faulk v. State, 4 Ala. App. 177, 59 So. 225; Terry v. State, 16 Ala. App. 430, 78 So. 460; McClellan v. Lyle-Taylor Grain Co., 205 Ala. 59, 87 So. 596; Powell v. State, 7 Ala. App. 17, 60 So. 967; Sullivan v. State, 22 Ala. App. 140, 114 So. 73; Hardy v. State, 18 Ala. App. 319, 91 So. 891. Charge 1 requested by defendant is a proper statement of law, but the refusal of it was without error since the court had charged that before the defendant could be convicted the jury must be convinced of his guilt beyond a reasonable doubt. Barnes v. State, 22 Ala. App. 581, 118 So. 239; Lagle v. State, 23 Ala. App. 400, 126 So. 181; Smith v. State, 25 Ala. App. 445, 148 So. 336; Deloney v. State, 225 Ala. 65, 142 So. 432. Charge 2 was refused without error; the affirmative charge is not proper where there is a conflict in the testimony. Pipkin v. State, 21 Ala. App. 179, 106 So. 391; Prophett v. State, 25 Ala. App. 20, 141 So. 257. Charge 3 being covered by the oral charge was refused without error. Lindsey v. State, 23 Ala. App. 411, 128 So. 209. Where there is no testimony impeaching the accused's character for veracity, it is not error to exclude testimony of his reputation for veracity. Carter v. State, 145 Ala. 679, 40 So. 82; Stone v. State, 208 Ala. 50, 93 So. 706; McGuire v. State, 2 Ala. App. 218, 57 So. 57.
The indictment was in two counts. The first count charged grand larceny, and the second count charged that the defendant did buy, receive, conceal, or aid in concealing personal property, knowing the same to have been stolen. The defendant was convicted under the first count of the indictment, which eliminates a consideration of rulings relating only to the second count.
The evidence was in conflict. That is, the evidence for the State tended to prove that the defendant was guilty as charged, in that he feloniously took and carried away, some time during the month of December, a belt of the value of $75 the property of C. F. Wilkerson. The evidence being in conflict, the question of guilt was properly submitted to the jury.
It is insisted by the defendant's counsel that the court committed reversible error in refusing to permit the defendant to ask Robert Espy, a witness for the defendant, that: "Sometime just before peanut picking and just after cotton picking, in the fall of 1936, if you didn't go down to a place above Headland towards Newville, to some creek there, and if riding along with Mr. Wilkerson if Mr. Wilkerson didn't tell you some of his crowd had lost one of his belts."
It is, of course, permissible to attack the credibility of a witness by showing that at other times and places he has made statements which are inconsistent with, or contrary to, the testimony then being given in court. In order to make such testimony admissible, it is the well-established rule that the same questions as to time, place and person, and statements alleged to have been made, must be put to the impeaching witness so as to identify the statement with those included in the predicate. A strict adherence to this rule is required in order to prevent the witness' testimony from appearing to be mere hearsay. McDaniel v. State, 166 Ala. 7, 52 So. 400; Terry v. State, 16 Ala. App. 430, 78 So. 460.
In the instant case, both the answer of the witness Wilkerson, whose testimony is sought to be impeached, and the question propounded to Espy, the impeaching witness, are too vague and indefinite to meet the rule.
Moreover, there is no testimony tending to prove that the belt inquired about of Espy is the belt included in the indictment and the subject of this prosecution.
Regarding refused charge 1, this court in Barnes v. State, 22 Ala. App. 581, 118 So. 239, 241, said: "Where the jury had been charged that, before the defendant could be convicted, the jury must be convinced of his guilt beyond a reasonable doubt — 'a requirement far more rigorous against the state and far more favorable to the defendant' — "there could be no injury to the defendant in refusing the charge." Edwards v. State, 205 Ala. 160, 87 So. 179.
The charge in this case and that in the Barnes Case, supra, are so similar as to make the above quotation entirely applicable, in view of the fact that the court in its oral charge and in several written given charges had covered this exact point.
The evidence being in conflict, refused charge 2 was properly refused.
Refused charge 3 was amply covered by the court in its oral charge. Where this is the case, charges requested by the defendant to the same effect are refused without injury.
It is insisted that the trial court committed error in refusing to permit the defendant to prove, by several witnesses, his general good character for veracity. The defendant had testified as a witness, and the court allowed him to prove his general good character, but refused to permit him to go further and bolster his testimony by proving his general good character for veracity, and that he was worthy of belief in a court of justice. He had not been impeached as a witness and: "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.' " Stone v. State, 208 Ala. 50, 93 So. 706, 707. When testifying as a witness his credibility may be impeached like that of any other witness, and when this is undertaken he may prove his general good character for truth and veracity, but, unless his character as a witness is attacked, such evidence is not admissible.
Other exceptions are without merit.
We find no error in the record, and the judgment is affirmed.
Affirmed.