Knox v. State

Alabama Court of Appeals

Knox v. State

92 So. 206, 18 Ala. App. 358, 1921 Ala. App. LEXIS 277

CourtAlabama Court of Appeals

DecidedDecember 20, 1921

Docket6 Div. 698. [fn*]

StatusPublished

Cited by3 cases

This text of 92 So. 206 (Knox v. State) 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

Knox v. State, 92 So. 206, 18 Ala. App. 358, 1921 Ala. App. LEXIS 277 (Ala. Ct. App. 1921).

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Opinions

BBICKEN, P. J.

This defendant was indicted by the grand jury of Jefferson county for the offense of assault and battery upon one Pbil Painter. From a judgment of conviction he appeals.

It appears without dispute that the alleged assault complained of was in fact committed by defendant, and further that, upon the trial of this cause in the court below, no element of self-defense was involved, and that the only issue presented and relied upon by this appellant was the defense, provided for under section 6308, Code 1907, the provision under this statute being that, on 'the trial of any person for an assault or an assault and battery, he may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault; and such evidence shall be good in extenuation or justification, as the jury may determine. It was not contended, nor was there any proof to show, that Painter, the person assaulted, used any opprobrious words or abusive language at'or near the .time of the alleged assault; to the contrary, the defendant himself testified that “the only thing Painter did 'at the time of the assault was to smile or grin.” And thereupon the assault complained of was committed.

[1] It appears that the alleged assault was committed on Sunday, January 2,1921. Many of the exceptions reserved to the court’s rulings upon the testimony relate to the effort of appellant to introduce in evidence an anonymous letter addressed to “Thomas Kilby, in the Governor’s office” and dated at Birmingham, Ala., on December 18, 1920. The court committed no error in its rulings on these questions. The letter which is marked Exhibit B and set out in tbe record, was inadmissible and irrelevant, and tbe court properly so held. Moreover, there was nothing to show, nor was it made known to the court, that defendant would undertake to show or offer to prove, that any opprobrious words or abusive language, either written, printed, or verbal, in which this defendant was concerned, had been used by Painter, the person assaulted at or near .the time of the assault, and, unless this is shown, and the burden of so showing, to the reasonable satisfaction of tbe jury> was upon the defendant, the provisions of section 6308 of the Code 1907, were not available to defendant, and his defense based upon this statute must fall.

[2] An effort was also made by defendant to introduce in evidence a copy of “tbe Advance” a newspaper published by Painter in tbe city of Birmingham. Tbe issue offered was dated December 4, 1920. Tbe record recites :

“This paper contained language insulting, abusive and derogatory of Conrad Austin and the men working under him, of whom defendant was one.”

Pretermitting the character of language alleged to have been used, the court properly sustained the objection to the introduction of this newspaper in evidence, as from its date it was too remote as to time of the difficulty to be admissible, and there was nothing to show that the paper or the objectionable language alleged to have been contained therein had come to the knowledge of the defendant so recently as to be “at or near the time of the *360 assault.” Brooke v. State, 155 Ala. 78, 84, 46 South. 491, 493.

[3, 4] Witness Sid Cowan was examined by the state as a state witness. It was therefore permissible for the defendant to undertake to show bias, ill feelings, prejudice or animosity, of this witness toward the defendant at the time of the trial in which he testified, in order to enable the jury to estimate his credibility. And it is the custom or general practice to first interrogate the witness on cross-examination as to his feelings in this respect, and the general rule is that, on crossTexamination of a witness, any fact may be elicited which tends to show such bias or partiality, and, if the witness denies the facts showing the bias, the cross-examining party may call other witnesses to contradict him. Byrd v. State, 17 Ala. App. 301, 84 South. 777. While this is the general rule, we see no reason why the fact indicating bias may not be as well proved in any other legal way, because it is the fact, and not its mode of proof, which goes to the credibility of the witness. Jones v. State, 76 Ala. 8. Underhill on Evidence (2d Ed.) p. 452.

[5] On cross-examination of witness Co-wan, no effort was made to show his feelings towards the defendant. The defendant did propound several questions, touching this matter, to his (defendant’s) witness N. C. Smith. We are of the opinion that these questions were in the main objectionable a^ being too general and in not confining the state of feelings of witness Cowan towards defendant to the time he testified as an adverse witness against him. These questions as framed may have related to witness’ state of feelings at a time too remote to make the testimony material here. But whether this is true or not, error, if any, committed by the court in this connection was cured by witness Cowan being recalled, and, on recross-examination admitted that he did not like the defendant, and that his feelings toward him were unfriendly.

Other exceptions reserved to the court’s rulings upon the testimony are without merit. These rulings have each been examined, and no error of a prejudicial nature appears. It does appear that, in these rulings, the court confined the testimony to the res gestae and to the other issues involved upon this trial.

The exceptions to the portions of the oral charge of the court are also without merit. This charge, when taken as a whole, is free from error, and the substantial rights of the defendant have not been thus injuriously affected.

The general charge was properly refused to defendant.

The other refused charges are not numbered, but each of them was properly refused, as the propositions of law involved in these charges were fairly and substantially covered by the oral charge of the court, as well as by the special charges given at request of defendant. These- charges were also properly refused as abstract, there being no evidence adduced upon this trial to show or tending to show that, if any opprobrious words or abusive language were used by Painter, the- assaulted party, directed to or in connection with defendant, that they were so used at or near the time of the assault, in contemplation of the law on this subject; and, if not so used, they were incompetent for any purpose as not coming within the terms of the statute.

No error appears, therefore the judgment of the circuit court is affirmed.

Affirmed.

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BBICKEN, P. J.

This defendant was indicted by the grand jury of Jefferson county for the offense of assault and battery upon one Pbil Painter. From a judgment of conviction he appeals.

It appears without dispute that the alleged assault complained of was in fact committed by defendant, and further that, upon the trial of this cause in the court below, no element of self-defense was involved, and that the only issue presented and relied upon by this appellant was the defense, provided for under section 6308, Code 1907, the provision under this statute being that, on 'the trial of any person for an assault or an assault and battery, he may give in evidence any opprobrious words or abusive language used by the person assaulted or beaten at or near the time of the assault; and such evidence shall be good in extenuation or justification, as the jury may determine. It was not contended, nor was there any proof to show, that Painter, the person assaulted, used any opprobrious words or abusive language at'or near the .time of the alleged assault; to the contrary, the defendant himself testified that “the only thing Painter did 'at the time of the assault was to smile or grin.” And thereupon the assault complained of was committed.

[1] It appears that the alleged assault was committed on Sunday, January 2,1921. Many of the exceptions reserved to the court’s rulings upon the testimony relate to the effort of appellant to introduce in evidence an anonymous letter addressed to “Thomas Kilby, in the Governor’s office” and dated at Birmingham, Ala., on December 18, 1920. The court committed no error in its rulings on these questions. The letter which is marked Exhibit B and set out in tbe record, was inadmissible and irrelevant, and tbe court properly so held. Moreover, there was nothing to show, nor was it made known to the court, that defendant would undertake to show or offer to prove, that any opprobrious words or abusive language, either written, printed, or verbal, in which this defendant was concerned, had been used by Painter, the person assaulted at or near .the time of the assault, and, unless this is shown, and the burden of so showing, to the reasonable satisfaction of tbe jury> was upon the defendant, the provisions of section 6308 of the Code 1907, were not available to defendant, and his defense based upon this statute must fall.

[2] An effort was also made by defendant to introduce in evidence a copy of “tbe Advance” a newspaper published by Painter in tbe city of Birmingham. Tbe issue offered was dated December 4, 1920. Tbe record recites :

“This paper contained language insulting, abusive and derogatory of Conrad Austin and the men working under him, of whom defendant was one.”

Pretermitting the character of language alleged to have been used, the court properly sustained the objection to the introduction of this newspaper in evidence, as from its date it was too remote as to time of the difficulty to be admissible, and there was nothing to show that the paper or the objectionable language alleged to have been contained therein had come to the knowledge of the defendant so recently as to be “at or near the time of the *360 assault.” Brooke v. State, 155 Ala. 78, 84, 46 South. 491, 493.

[3, 4] Witness Sid Cowan was examined by the state as a state witness. It was therefore permissible for the defendant to undertake to show bias, ill feelings, prejudice or animosity, of this witness toward the defendant at the time of the trial in which he testified, in order to enable the jury to estimate his credibility. And it is the custom or general practice to first interrogate the witness on cross-examination as to his feelings in this respect, and the general rule is that, on crossTexamination of a witness, any fact may be elicited which tends to show such bias or partiality, and, if the witness denies the facts showing the bias, the cross-examining party may call other witnesses to contradict him. Byrd v. State, 17 Ala. App. 301, 84 South. 777. While this is the general rule, we see no reason why the fact indicating bias may not be as well proved in any other legal way, because it is the fact, and not its mode of proof, which goes to the credibility of the witness. Jones v. State, 76 Ala. 8. Underhill on Evidence (2d Ed.) p. 452.

[5] On cross-examination of witness Co-wan, no effort was made to show his feelings towards the defendant. The defendant did propound several questions, touching this matter, to his (defendant’s) witness N. C. Smith. We are of the opinion that these questions were in the main objectionable a^ being too general and in not confining the state of feelings of witness Cowan towards defendant to the time he testified as an adverse witness against him. These questions as framed may have related to witness’ state of feelings at a time too remote to make the testimony material here. But whether this is true or not, error, if any, committed by the court in this connection was cured by witness Cowan being recalled, and, on recross-examination admitted that he did not like the defendant, and that his feelings toward him were unfriendly.

Other exceptions reserved to the court’s rulings upon the testimony are without merit. These rulings have each been examined, and no error of a prejudicial nature appears. It does appear that, in these rulings, the court confined the testimony to the res gestae and to the other issues involved upon this trial.

The exceptions to the portions of the oral charge of the court are also without merit. This charge, when taken as a whole, is free from error, and the substantial rights of the defendant have not been thus injuriously affected.

The general charge was properly refused to defendant.

The other refused charges are not numbered, but each of them was properly refused, as the propositions of law involved in these charges were fairly and substantially covered by the oral charge of the court, as well as by the special charges given at request of defendant. These- charges were also properly refused as abstract, there being no evidence adduced upon this trial to show or tending to show that, if any opprobrious words or abusive language were used by Painter, the- assaulted party, directed to or in connection with defendant, that they were so used at or near the time of the assault, in contemplation of the law on this subject; and, if not so used, they were incompetent for any purpose as not coming within the terms of the statute.

No error appears, therefore the judgment of the circuit court is affirmed.

Affirmed.

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92 So. 206, 18 Ala. App. 358, 1921 Ala. App. LEXIS 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knox-v-state-alactapp-1921.

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