Johnson v. State Ex Rel. Jones

Alabama Court of Appeals

Johnson v. State Ex Rel. Jones

74 So. 972, 16 Ala. App. 4, 1917 Ala. App. LEXIS 91

CourtAlabama Court of Appeals

DecidedMarch 23, 1917

Docket8 Div. 467.

StatusPublished

Cited by2 cases

This text of 74 So. 972 (Johnson v. State Ex Rel. Jones) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. State Ex Rel. Jones, 74 So. 972, 16 Ala. App. 4, 1917 Ala. App. LEXIS 91 (Ala. Ct. App. 1917).

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Opinion

BROWN, P. J.

[1] The conversation between Ollie Johnson, the father of the defendant, and the prosecutrix is not shown to have been in the presence of the defendant. It was shown that the defendant and Done-hue, the constable, “were standing in the door”; but whether the door was the door to the room in which the conversation took place, or some other door, the distance of the door from the parties in conversation, the volume and tone of their voices, were not shown.

[2] For silence in the face of accusation to be admissible as a confession or an admission against interest, it must he shown that the party accused heard and understood the charge and that he was silent. Rowlan v. State, 14 Ala. App. 17, 70 South. 953; Martin v. State, 39 Ala. 523.

[3] The admission of the testimony as to this conversation over the defendant’s objection cannot be justified on the ground that the defendant had offered a part of the conversation, and the state was entitled to show all, as was held in Webb v. State, 100 Ala. 47, 14 South. 865. While it is shown that the witness Ollie Johnson had testified as a witness in behalf of the defendant before this conversation was offered and had testified that he said to Mrs. Jones that he was ready for trial, this statement was brought out on cross-examination by the solicitor, and cannot be made the basis for the admission of the entire conversation on the theory that defendant had offered a part of the conversation and the state had the right to show all that was said.

[4] If a fact is irrelevant, it cannot be shown by autoptie proferenco or otherwise. Wigmore, Evidence, § 1154. The fact that the child’s eyes resembled in color the eyes of its maternal grandfather clearly had no tendency to show that the defendant was the father of the child, and that was the issue before the jury. Paulk v. State, 52 Ala. 427.

[5] The other matters complained of pertain to the rulings of the court in allowing the cross-examination of the witness to extend to irrelevant matters. This was a matter of discretion that will not be reviewed. Cox v. State, 162 Ala. 66, 50 South. 398.

Reversed and remanded.

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BROWN, P. J.

[1] The conversation between Ollie Johnson, the father of the defendant, and the prosecutrix is not shown to have been in the presence of the defendant. It was shown that the defendant and Done-hue, the constable, “were standing in the door”; but whether the door was the door to the room in which the conversation took place, or some other door, the distance of the door from the parties in conversation, the volume and tone of their voices, were not shown.

[2] For silence in the face of accusation to be admissible as a confession or an admission against interest, it must he shown that the party accused heard and understood the charge and that he was silent. Rowlan v. State, 14 Ala. App. 17, 70 South. 953; Martin v. State, 39 Ala. 523.

[3] The admission of the testimony as to this conversation over the defendant’s objection cannot be justified on the ground that the defendant had offered a part of the conversation, and the state was entitled to show all, as was held in Webb v. State, 100 Ala. 47, 14 South. 865. While it is shown that the witness Ollie Johnson had testified as a witness in behalf of the defendant before this conversation was offered and had testified that he said to Mrs. Jones that he was ready for trial, this statement was brought out on cross-examination by the solicitor, and cannot be made the basis for the admission of the entire conversation on the theory that defendant had offered a part of the conversation and the state had the right to show all that was said.

[4] If a fact is irrelevant, it cannot be shown by autoptie proferenco or otherwise. Wigmore, Evidence, § 1154. The fact that the child’s eyes resembled in color the eyes of its maternal grandfather clearly had no tendency to show that the defendant was the father of the child, and that was the issue before the jury. Paulk v. State, 52 Ala. 427.

[5] The other matters complained of pertain to the rulings of the court in allowing the cross-examination of the witness to extend to irrelevant matters. This was a matter of discretion that will not be reviewed. Cox v. State, 162 Ala. 66, 50 South. 398.

Reversed and remanded.

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74 So. 972, 16 Ala. App. 4, 1917 Ala. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-ex-rel-jones-alactapp-1917.

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