Bush v. State , 19 Ala. App. 650 ( 1923 )

I cannot agree with the position taken by BRICKEN, P.J., in his opinion on rehearing in the following particulars:

First. I am of the opinion that charge 1 states a correct proposition of law as based upon the evidence in this case, and that it is not subject to the criticism stated, that it is not based upon a "belief of the evidence." True, the charge as written and presented to the court is not so hypothesized, and, if the charge had been refused by the court, the criticism would have been correct; but such was not the case. The court gave the charge as requested, and thereby not only inferentially, but in express terms, adopted it as a part of the court's oral charge, which several times stated and referred to the evidence in the case. Nor does the rule that the giving of a correct charge does not cure the error of giving an incorrect one apply here. The charge given becomes a part of the oral charge, based upon the evidence in the case, and, when so taken and considered, is cured of a defect in phraseology which would have justified the court in refusing to make it a part of his charge. The charge in Davis' Case, 188. 59, 66 So. 67, and in Edwards Case, 205 Ala. 160, 87 So. 179, cited in Judge BRICKEN'S opinion, were refused by the court. I have also examined a large number of decisions of this court and the Supreme Court, and in each instance, where a charge was held bad on account of omission to predicate the rule asked upon the evidence, the charges were refused, and therefore never became a part of the court's oral charge, nor did they have the benefit of the announcement by the court, as was the case here:

"The written charges given you are not in conflict with the court's oral charge and are to be considered by you along with and as a part of the court's oral charge."

Second. I am still of the opinion that given charges 6 and 7 correctly state the law, and that the defendant had, in those charges, every benefit to which he was entitled. The jury has not the right to reject the testimony of a witness, unless the jury is reasonably satisfied from the evidence that such witness has intentionally and corruptly sworn falsely to a material fact in the case. The maxim of the law, "falsum in uno, falsum in omnibus." must be applied with great caution. Grimes v. State, 63 Ala. 166. Every witness is presumed to testify truthfully, until the contrary be made to appear from the evidence, and then only when it is so ascertained from a consideration of evidence. Moore v. Jones, 13 Ala. 296. It is the function of the jury to weigh and determine, from the evidence, as to whether a witness has willfully sworn falsely to a material fact, and before they can reject the testimony of a witness, their minds must be reasonably satisfied of that fact. There is a distinction between, "if the jury believe," and, "if the jury are reasonably satisfied," as used in the charges under consideration. "Belief" imparts a higher degree of proof that "reasonable satisfaction." Therefore when the court gave, at the request of defendant, in writing charges 6 and 7, the ruling was favorable to defendant.

Third. I am also of the opinion that the court did not commit reversible error in admitting the testimony of Bob Strickland and James Mason, taken on the preliminary hearing of this case before the justice of the peace, and offered in evidence by the state. These witnesses were examined on cross-examination by defendant's counsel as to what these witnesses testified on the preliminary trial of this case. This was done in the most minute manner, the examining counsel ostensibly reading the questions from the stenographic report of the preliminary trial. In some instances the witnesses admitted, and in some denied, having so testified. Where one party has brought out a part of a conversation or transaction, on the trial of a case, the other party is entitled to the whole and to prove the entire conversation or transaction by the best available evidence. The stenographic report of a witness' testimony, when properly identified and attested, is the best evidence of what transpired on the examination. As was said in Kennedy's Case,85 Ala. 326-331, 5 So. 300, 301:

"The court did not err in refusing to allow him to be cross-examined as to garbled extracts taken from the writing, with a view of contradicting or impeaching him. The court properly required that the entire writing should be shown, or read to the witness, and go the jury." Wills V. State, 74 Ala. 21; Gunter v. State, 83 Ala. 96, 3 So. 600.

The objection being general, if the testimony was relevant for any purpose the objection was properly overruled.

I am of the opinion that this court reached a correct conclusion in affirming the judgment, and the application should be overruled.

On Hearing After Mandate from Supreme Court.