Billingslea v. State , 85 Ala. 323 ( 1888 )

STONE, 0. J.

We think it clear that it was not permissible to call out from the witness, Hutchings,.what testimony he had given before the grand jury. A party on trial for a public offense has the constitutional right “to be confronted 'by the witnesses against him.” The right of cross-examination is scarcely less sacred than this; and parties, whose conduct is undergoing investigation before a grand jury, have no right to be present, and are not permitted to be represented before that body. It is a grand inquest, but it is secret, and ex parte.

The record before us shows that the witness was asked if he had not given certain testimony before the grand jury, when interrogated in reference to the charge against this defendant. This question was objected to, the objection overruled, and defendant excepted. This was not enough to raise the question. We can not know that any answer was given to this question, or, if given, that it was not favorable to defendant. The record fails to inform us that this question was answered. — Phœnix Ins. Co. v. Moog, 78 Ala. 284, 309, and citations.

The testimony showed that, when this witness was examined before the grand jury, his testimony was reduced to writing, and signed by him. Against the objection and exception of defendant, this memorandum was allowed to be shown to the witness, and examined by him. He recognized and acknowledged his handwriting to the memorandum. He was asked: “Befreshing your recollection by the statement of your testimony before the grand jury, state to the jury wbetber or not, within a week prior to the time you were a witness before the grand jury, at said July term of this court, you saw the defendant and others play a game of cards in a room in the Buby Hotel in this city ?” This question was leading; but trial courts are allowed a discretion in permitting leading questions to be put to one’s own witness. It does not appear to have been objected to on that account. The witness answered, “In the neighborhood of a week ? yes, sir.” This question and answer were separately objected and excepted to. The witness, on cross-examination, “stated that without said written statement he could not have recollected the time at which said game of cards was played, apart from that received from said written statement.”

The testimony of the witness was clearly revived recollection. He had before him a paper,- the contents of which he had approved, as evidenced by his signature; and we must presume he would neither have approved or signed it, if he had not, at the time, known it stated the facts. The testimony was legal. — 1 Greenl. Ev. §§ 436-7; Acklen v. Hickman, 63 Ala. 494.

The rulings of the court are in accordance with our views, and are free from error.

Affirmed.