Pelham v. State , 22 Ala. App. 529 ( 1928 )

The homicide complained of in this indictment, and for which appellant was convicted of murder in the second degree, grew out of a trivial matter alleged to have occurred between state witness Walter Johnson and the defendant, relative to 75 cents claimed by Johnson to be due him by the Vredenburgh Lumber Company for four hours' work that Johnson claimed the defendant, who was the foreman of the planer mill, failed to "turn in" for him. The evidence shows that Oliver, the deceased, though no kin to Walter Johnson, interested himself in Johnson's behalf, and approached the defendant in a belligerent manner about the matter. The evidence shows also without dispute that the defendant had recently discharged Johnson from his working at the planer mill. There was no evidence showing, or tending to show, any ill will or bad feelings upon the part of defendant towards deceased before the difficulty. It is manifest, from the record, that said Walter Johnson was the moving spirit in the difficulty, and that, as a result of his activities, the difficulty occurred, resulting in the death of Oliver. In this connection the defendant, on cross-examination of Johnson, the principal state witness, undertook to ascertain his (Johnson's) movements just prior to the difficulty, and it is apparent that the witness was very reluctant in giving evidence of these important details. After having testified that he went to deceased's house for supper, and that he and the deceased came back together and were looking for the defendant, and found him in the commissary, witness stated: "I went in there and told him Mr. Oliver wanted to see him." Here the record shows the following:

"Q. Now you were hanging around there on the outside of the store, waiting for Mr. Pelham? A. He was out there and I went in the store —

"Q. To spy and see if he was in there? A. I went in there to tell him that Mr. Oliver said he wanted to speak to him.

"Q. Did you go back out there to where Mr. Oliver was? A. I don't remember.

"Q. Isn't it a fact that you did go back there, Mr. Johnson? A. I went out there in a little while."

Here counsel for defendant said: "Come clean with it."

We agree with the trial court in ruling that this was an improper manner of examining a witness, and that counsel for defendant had no right to admonish the witness in such manner. Nor should the solicitor have been allowed to state as a fact before the jury, "He's coming clean." The exception reserved in this connection must be sustained. The remark was unauthorized, improper, and prejudicial. It was but the conclusion of the solicitor, and invasive of the province of the jury.

We are of the opinion that there was also error in the ruling of the court improperly abridging the cross-examination by defendant of state witness Willis Hall. The testimony of this witness was highly damaging to defendant, and was in direct conflict with much of the evidence in this case. The witness was asked: "What are your feelings towards Mr. Pelham here?" and he answered: "They are good." In order to test the truth and sincerity of this statement, defendant undertook to show that his feelings were in fact not good, and that he entertained hard feelings towards defendant because of his children having gotten some of the company's wood which Pelham had been required by the company to sell. The court sustained the solicitor's objection to this line of inquiry, and would not permit him to ask witness if they did not get after him about it. Evidence of this character is always admissible in order to show prejudice, ill will, and bias of a witness as against the accused; the reason therefor is 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. Lodge v. State, 122 Ala. 97, 26 So. 210, 82 Am. St. Rep. 23. "In weighing testimony the jury ought to be in possession of all the facts calculated to exert any influence upon the witness." Prince v. State, 100 Ala. 144,14 So. 409, 46 Am. St. Rep. 28.

Other points of decision are insisted upon as error, but these questions will probably not arise upon another trial; hence need not be discussed.

Reversed and remanded.