Crain v. State

52 So. 31, 166 Ala. 1, 1910 Ala. LEXIS 324

• Court: Supreme Court of Alabama
• Decided: February 10, 1910
• Status: Published

Opinion

DOWDELL, C. J.

While it is true that much latitude is permissible upon the cross-examination of a witness touching his sincerity, memory, etc., even to the asking of questions irrelevant to the issues in the case, yet it is a matter that must of necessity rest largely in the wise discretion of the trial court.

In the present case there was no dispute that the defendant shot and killed the deceased on the mentioned date, and consequently it was immaterial at what hour of the day it was done. The witness Merriwether testified on his direct examination that he looked at the clock just before the shooting, and it was 10 minutes past 11 o’clock. On his cross-examination he was asked where the hands were pointing, to which question the solicitor objected, and the objection was sustained. While the question was not an improper one as touching the knowledge and accuracy of the witness as to the precise time of the shooting, and might well have been permitted, we are unable to see that the defendant was prejudiced by its refusal, in view of the fact that the defendant did not deny the shooting of the deceased. We are satisfied that no injury resulted therefrom to the defendant, and, such being the case, the ruling, if erroneous, should not constitute reversible error. — Code 1907, § 6264.

In the laying of a predicate for the introduction of evidence of confessions made by the defendant, the question, “Were there any promises, threats or induce-meats made to the defendant before the statements were made by him?” is not open to the objection that it called for a conclusion of the witness, and was properly allowed by the court.

When taken in connection with the declaration, made by the defendant after the shooting, that, if the deceased was not dead, he (defendant) would go back and finish him, the question by the solicitor, “Did he come back?” and “What did the defendant then say or do?” were properly allowed as against the objections stated. The bill of exceptions recites: “The court overruled the objection, and allowed the witness to testify what the defendant said and did at that time. To which overruling the defendant then and there duly excepted. The evidence showed that the 'defendant came back in a short time to where the deceased was shot and was lying, and ordered the witness away, and shot several times at witness as he ran away. The evidence was admissible as tending to show malice.

The court in its general charge to the jury, in submitting the' issues, stated the tendencies of the evidence for the state and defendant without an invasion of the province of the jury. In the admission of evidence the court necessarily passes upon its tendency as proof as matter of law.

Written charges numbered 1 to 8, refused to the defendant, were palpably and inherently bad. Each of said charges required a verdict of not guilty if any one of the jury entertained a reasonable doubt of the defendant’s guilt. This is not the law. So long as any one of the jury has a reasonable doubt of the defendant’s guilt, there can be no conviction; but such a state of the case does not authorize an acquittal, the result would be a mistrial.

Since writing the foregoing part of this opinion a supplemental brief by counsel for appellant has come into our hands, wherein it is urged that the special act which provides for the drawing of juries in capital cases in Jefferson county, and under which the jury in the present case was drawn, approved February 26, 1907 (Loc. Acts 1907, p. 238), is unconstitutional and void. An inspection of the journals of the Legislature discloses that in the passage of said act, which originated in the House, the bill upon its introduction was referred to the standing committee on local legislation, and was never reported back by that committee, but instead thereof, was reported back to the House by a different standing committee, to wit, the judiciary committee. This was a palpable violation of section' 62 of the Constitution of 1901, which is as follows: “No bill shall become a law until it shall have been referred to a standing committee of each House, acted upon by such committee in session and returned therefrom, which facts shall affirmatively appear upon the journal of each House.” See Tyler v. State, 159 Ala. 126, 48 South. 672; Walker v. City of Montgomery, 139 Ala. 468, 36 South. 23. The act in question must be declared void.

It affirmatively appears from the record in this case that the special jurors, 45 in number, drawn for the special venire, and from which the jury that tried the defendant were selected and impaneled, were drawn under said void statute. The jury, therefore, that tried the defendant, was unauthorized by law. The conviction and sentence was illegal. It follows that the judgment appealed from must be reversed, and the cause remanded for another trial according to law.

Reversed and remanded.

Anderson, Sayre, and Evans, JJ., concur.