Williams v. State , 33 Ala. App. 304 ( 1947 )

In the brief and supplemental brief in support of the application for rehearing in this cause the Attorney General argues that our opinion in this cause is erroneous on the following grounds.

First, that the questions as to the reputation of the appellant as a police officer are too general, and do not call for a trait of character germane to the offense here charged. This argument is already covered in our opinion and we do not think that further discussion is indicated.

The Attorney General argues further that: "These questions propounded by appellant's counsel, to which objection was sustained, did not limit the time of the reputation of the appellant as being prior to the date of the offense. The question as framed called for evidence as to the man's reputation as a police officer up to the date of trial. Conceding for the sake of argument, the relevancy of such evidence and antedating the crime, it is a rule of law that where both competent and incompetent testimony is called for by a single question, the court may properly sustain objection to the question, since the court is not bound to separate the legal from the illegal."

This argument in support of the trial court's action in sustaining the state's objection to the questions above set out was not presented at the oral argument made on submission of this cause nor in the original briefs filed by the State, and the writer of the opinion overlooked this point until called to our attention in the brief of the Attorney General filed in support of the State's application for a rehearing.

Further study of this record by this writer has produced no facts from which it can be inferred that the defendant below ceased to be a policeman after the homicide, or that he did not occupy such a status at the time of the trial below. Inquiries to show a defendant's reputation for peace and quietude, and the questions now being considered are clearly of that character, must be limited to the time preceding the commission of the offense for which he is being tried. When not so limited they are properly excluded. Jenkins v. State, 212 Ala. 484,103 So. 458; Smith v. State, 197 Ala. 193, 72 So. 316. The questions under consideration are framed without limiting the scope of their operation to the time preceding this homicide, but by their verbiage included the time up to the trial below. As a result competent and incompetent testimony was called for by each question. Under such circumstances a court is not bound to separate the admissible from the inadmissible and will not be put in error for sustaining an objection to a question containing such dual characteristics. Brooks v. State,32 Ala. App. 389, 27 So. 2d 48. We therefore now conclude that error cannot be cast upon the trial court for sustaining the objections to the questions now discussed for the reason that the same were not properly limited to the period of time preceding the homicide. We adhere however to our original view that had the questions been properly predicated then the objections thereto should have been overruled.

We have found no other questions raised by the record which in our opinion warrant discussion. Defendant's refused written charges 1, A-1, A-2, and A-3 are affirmative in nature and were properly refused under the developed evidence of this case. Refused written charges 20, and B were invasive of the province of the jury, or covered by other written charges given at the request of the defendant.

In view of the above discussion it is our opinion that the application for rehearing should be granted, and this cause affirmed. It is so ordered.

Application for rehearing granted, and cause affirmed.

CARR, J., concurs in the conclusion.