Roberts v. State , 122 Ala. 47 ( 1898 )

DOWDELL, J.

— The defendant was tried and convicted on an indictment for forcibly ravishing one Annie IlattoAvay. Before entering npon the trial the Avitnesses were put under the rule, both State and defendant having invoked the same. W. B. Sanders, a physician, and a Avitness for the defendant, in violation of the rule of exclusion, remained in the court room during the trial, and heard a part of the testimony of one Dr. Pennington, Avho Avas examined as an expert on behalf of the State. On the objection of the State, the court refused to let the witness Dr. Sanders testify. It was stated at the time by the defendant that Dr. Sanders Avas only offered as an expert. Tavo other Avitnesses, physicians, Avere called and examined as experts by defendant in his behalf. It is contended by counsel for defendant that the court erred in not allowing the witness Sanders to testify, because, as it is urged., expert testimony does not fall within the rule of exclusion of Avitnesses. As to AAhat AA'itness or witnesses may be excludedfromtlieruleAvhen invoked is a matter resting in the sound discretion of the trial court; and its rulings in this respect are not subject to revision. — Riley v. State, 88 Ala. 193; Berry v. State, 88 Ala. 204; State v. Brookshire, 2 Ala. 303.

In the note to section 432 Greenleaf on Evidence (15th ed.) it is said: “To this rule, an exception is allowed in the case of medical Avitnesses; but even those, on matters of medical opinion, are examined apart from each other,” citing Alison’s Practice, pp. 542-5; Tait on Ev. 420.

It will be observed that under these authorities, the AA’itness is not excepted from the rule of exclusion, during the examination of other Avitnesses on the matters for which he is called. Sanders Avas called as an expert, on the same matters other witnesses were called and examined. So it would seem that under the above authority cited in appellant’s brief, the witness falls within the rule and not the exception, according to the facts in this case.

There is no good reason why witnesses summoned to testify as experts, should be placed upon a higher plane than other Avitnesses, especially as to the matters they are called to testify about. The manifest purpose of the rule is to secure the truth and promote the ends of justice, to have the recollection of the individual witness, of the facts, which he may testify to, uninfluenced by the testimony of other Avitnesses, or in the case of experts, the opinion of the expert, uninfluenced by evidence of another expert. The discretion of the trial court in such cases, is a Avise discretion, and always to be exercised for the promotion, and never at the expense of right and justice.

The distances testified to by the íavo Avitnesses Annie RattoAvay and Blackman were merely estimates or opinions of the Avitnesses, and we think that the other matters of description taken in connection with the two sets of tracks as described by the latter Avitness, leading up to the place where he saAv signs of a “scuffle” on the ground, sufficiently identified the place to render the testimony of this Avitness competent.

It Avas not incumbent on the State to produce at the trial the under-garment, on which, the Avitness Annie Hattoway stated Avas blood in front and behind, and the failure to do so could afford no presumption unfavorable to the prosecution under the facts in the case. The action of the court in arresting the argument of counsel on this line was Avithout error.

What the solicitor said in the course of his argument as to no one knowing better than the defendant, that Annie Hattoway had not told her father about the kissing talk at the coav pen, was but the expression of opinion by the solicitor, and under the testimony of the case, we would not say it Avas a wholly umvarranted opinion. The court did not err in refusing to exclude these remarks of the solicitor.

A mere doubt however honestly entertained is not enough upon Avhich to base an acquittal. Nor is a doubt for which a reason may be given necessarily a reasonable doubt, although a reasonable doubt may be a doubt lor which a reason can be assigned. — Humbree v. State, 81 Ala. 67. The written charges requested by the defendant and numbered 9 and 19 fall under the above propositions, and were properly refused.

Charge numbered 22 is conceded by counsel for appellant in their brief to be bad.

Charge 24 was not offensive to the rule against giving-undue prominence to particular parts of the evidence, but comes within the exception to that rule as laid down in the cases of Harris v. State, 96 Ala. 24, and Smith v. State, 88 Ala. 73. It was error to refuse this charge.

For the errors pointed out the judgment of the circuit court is reversed and the cause remanded. The defendant will remain in custody until discharged by law.