Leatherwood v. State

85 So. 875, 17 Ala. App. 498, 1920 Ala. App. LEXIS 149

• Court: Alabama Court of Appeals
• Decided: June 15, 1920
• Docket: 1 Div. 385.
• Status: Published

Opinion

BRICKEN, P. J.

[1] The defendant requested 'the following charge, which the court refused to give:

“The court charges the jury, if the witness Berry Minge had been impeached, his entire testimony may be disregarded, unless corroborated by the testimony not so impeached.”

[2, 3] The refusal of this charge was error. Churchwell v. State, 117 Ala. 124, 23 South. 72; Prater v. State, 107 Ala. 26, 32, 18 South. 238; Horn v. State, 98 Ala. 23, 13 South. 329; Elmore v. State, 92 Ala. 52, 9 South. 600; Jordan v. State, 81 Ala. 20, 1 South. 577. It was error for the reason that the charge is not abstract, as several witnesses testified that they knew the general character of witness Berry Minge, and that they also knew his general reputation for truth and veracity; that his character in each particular was bad, and upon the strength of which they would not believe this witnessi on oath in a court of justice. This evidence was without conflict or dispute, the state not having introduced any witness who testified to the contrary in this connection. Neither is it objectionable as being argumentative; and, further, it simply asserts that if the jury believe from the evidence that the witness named has been successfully impeached, and if they believe from the evidence said witness is shown to be a man of bad character and unworthy of ^belief, they are authorized to disregard his evidence altogether; the charge does not require them to do so, and hence was not invasive of the province of the jury. Prater v. State, supra. The credibility of witnesses is a matter for the consideration of the jury, guided by such instructions from the court as the nature and character of the evidence and the particular case may require.

In the Churehwell Case, supra, the Supreme Court said:

“If the charge asked by defendant is faulty, in that it is too favorable to the state, in the use of the words ‘unless it be corroborated by other testimony not so impeached,’' the state cannot complain of this. It should have been given. For the refusal of this charge, the judgment must be reversed.” ■

In Prater v. State, supra, the court, .in dealing with a similar charge, said:

The charge “is not abstract or argumentative; but asserts simply that if the evidence convinces the jury that the witness [naming him] is a man'of bad character and unworthy of belief, they are authorized to disregard his evidence altogether. The jury certainly had this right on the hypothesis of this charge, and they should have been so instructed.”

Eor having refused the above charge, the judgment must be reversed and the cause remanded.

Other questions presented need not be considered, as in all probability they will not again occur upon another trial of this case. The rulings of the court upon the evidence appear to be free from prejudicial error.

Reversed and remanded.