Lodge v. State , 122 Ala. 97 ( 1898 )

DOWDELL, J.

— The defendant was tried and convicted of carrying a pistol concealed ahont his person. The prosecution began upon a warrant issued upon the affidavit of one Otto Gordon, who was the principal Avitness for the State upon the trial of the defendant, was a boy fourteen years of age, and the son of M. and Mrs. A. Gordon. The defendant sought to prove by this witness on cross-examination, ill avüI and a state of bad feeling on the part of both M. Gordon and Mrs. A. Gordon towards the defendant. This testimony was objected to by the State, on the ground that it was irrelevant and immaterial, and the objection Avas sustained. The defendant also sought to prove by this witness, as tending to show ill will on the part of M. Gordon, the father, toAvards the defendant, the fact of a prosecution then pending against the defendant, commenced on affidavit of M. Gordon, charging him Avitli adultery Avith one Belle Turner, which evidence Avas objected to by the State and the objection was sustained by the court.

That it is competent to show the state of feeling of a AA’itness when called to testify cannot be doubted; the purpose being to give the jury all of the facts necessary to a full and fair consideration of his evidence, and to enable them to determine the degree of credit to be accorded the same.

It Avas decided in Prince v. The State, 100 Ala. 144, that it Avas competent for the defendant in a prosecution to sIioav that the employer of a Avitness, testifying in behalf of the State against the defendant was taking interest in the trial of the case; the court using in that case the following language: “In weighing testimony the jury ought to be in possession of all the facts calculated to exert any influence upon the Avitness. It cannot be said as a conclusion of law that an employé testifying in a matter in Avhich he knows his employer is interested personally or pecuniarily, is, or is not, Avholly unbiased. It is proper for the jury to know the character of the interest of the employer, Iioav it is to be affected, and in Avhat way it is manifested. An employer may act from a sense of public duty, or be interested in seeing that another has a fair trial; or it may be that he is actuated by pecuniary interest, or a spirit of revenge, or vindictiveness, and may use his position as employer to bias the evidence of his employé. We think it safe to hold, that when an employé is testifying, it may be shown that his employer is interested in the prosecution.”

While it cannot be stated as a conclusion of law, that a son of tender years testifying against a party, towards whom his parent entertained ill feelings, that his testimony Avould or Avould not be wholly unbiased, nevertheless, it being but natural for the child to be more or less impressed Avith the sentiments and feelings of the parent, it is proper for the jury to be informed as to the state of bad feeling of the parent towards the defendant, if it be a fact, and such state of feeling, is also knoAvn to the child. We think tbe reasoning for the admissibility of evidence of this character is more cogent in the case of a child, who is under parental care and control, testifying as a witness, than in the case where the relationship is only that of employé and employer. This evidence should have been alloAved, and the court erred in sustaining the solicitor’s objection.

There Avas no error in the refusal of the court to alloAV the defendant to introduce impeaching evidence as to M. Gordon and Mrs. A. Gordon; neither one of these persons having testified as witness in the case. Nor vvas there any error in admitting the evidence as to the general bad character of Belle Turner. She having testified as a witness in the case, it was competent to impeach her testimony by proof of general bad character.

For the error pointed out in refusing to allovv the defendant to show the state of bad feeling of the father and mother of the witness, Otto Gordon, towards the defendant, the judgment must be reversed and the cause remanded.

Eeversed and remanded,