Forman v. State , 190 Ala. 22 ( 1914 )

de Graffenried, J.

The opinion, in this case was prepared for the court, by

The defendant in this case was indicted for, and convicted of, murder in the first degree.

(1, 2) At common law, a defendant’s general character was not subject to attack by the state until he himself had put his character at issue. Since the adoption of the statute which permits a defendant in a criminal case to take the stand as a witness and' testify as such in his case, this court has held that, for the purpose of impeaching his testimony, the state may introduce evidence tending to show Ms general bad character. A general inquiry, in such a case, into the moral character of the defendant is permissible for the purpose of affecting his credibility as a witness, and for no other purpose. — Sweatt v. State, 156 Ala. 85, 47 South. 194; Dolan v. State, 81 Ala. 11, 1 South. 707.

(3, 4) In this case the defendant testified in his own behalf as a witness, but he offered no evidence as to his general character or as to his general character for peace and quiet. This being the situation, the state had no right, against the seasonable. objection of the defendant, to offer evidence tending to show that the defendant was a man whose general character for peace and quiet'was bad; and in permitting the state, agMnst the seasonable objection of the defendant, to offer this evidence to the jury, the trial court committed reversible error. — Sweatt v. State, supra; Dolan v. State, supra.

The state had a right, for the purpose of impeaching the defendant as a witness, to offer evidence tending to show that he was a man whose general character prior to the homicide was, in the community in which he lived, bad; but, as already stated, under the situation of the evidence in this case, it had no right to show that, prior to the homicide, the defendant’s general character for peace and quiet was, in the community in which he lived, bad.

(5) 1. We deem it wise to direct attention to the fact that in all criminal cases, ivhenever the character of the defendant becomes the subject of evidence on the part of the state or of the defendant, the evidence as to such character must be limited to the character which the defendant bore in his community prior to the time of the commission of the offense for which he is being tried. The question in all such cases is: What was the general character of the defendant up to the time of the commission of the alleged offense? and not, what was the general character of the defendant on the day of the trial? — Robinson v. State, 5 Ala. App. 45, 59 South. 321.

In the Instant case the trial court seems to have disregarded the above rule.

(6) 2. It is the unquestioned law of this state that no unfavorable inference can be drawn, and no unfavorable argument to a jury made, by counsel against a party to a cause because of the absence of the testimony of a witness in a cause, when that witness is accessible to both parties, and can be introduced by and examined by either party as a witness. — Hutcherson v. State, 165 Ala. 16, 17, 50 South. 1027, 38 Am. St. Rep. 17; Du Bose v. Conner, 1 Ala. App 456, 55 South. 432; Etheridge v. State, 124 Ala. 106, 27 South. 320; Earle v. State, 1 Ala. App. 183, 56 South. 32.

In this case, so the bill of exceptions recites: The “solicitor, in his closing argument to the jury, made the following argument to the jury: Where is Raymond Smith? How do they account for the fact that Raymond Smith did not testify in this case?’ ”

The defendant seasonably objected to this argument of the- solicitor, but the court overruled the objection, and permitted the argument to remain with the jury.

As Raymond Smith was equally accessible to the state and the defendant, and as the state could, if it had seen proper so to do, have used the said Raymond Smith as a witness, the court committed reversible error in not sustaining the defendant’s objection to said argument and in not excluding it from the jury. Authorities, supra.

(7) 3. Charge 7, requested by the defendant, is a copy of a charge which this court held to be.bad under the facts shown by the bill of exceptions in Gaston v. State, 161 Ala. 37, 49 South. 876. Under - the facts shown by the bill of exceptions in the present record the trial court was free from error in refusing said charge.

(8) 4. A critical examination of the evidence in this case convinces us that, under the evidence as it exists in the bill of exceptions, the trial, court committed no error in refusing charges Y and F. We recognize the integrity of the rule which says that the right to interfere for the protection of others to the extent of taking life when necessary includes such persons as master and servant, parent and child, guardian and ward, and uncle and nephew; but, in our opinion, that rule, under the evidence in the bill of exceptions in this case, furnished no basis to the trial court for giving to the jury the above charges. The case must be again tried,, and we refrain from discussing this phase of the evidence.

(9) 5. Charge X was abstract, and was properly refused.

(10) 6. There are several methods whereby a witness may be impeached. There are no degrees in these forms or methods of impeachment. One method is as effectual as the other, provided the impeaching evidence is believed by the jury. The trial court properly refused charge W, which was requested in writing by the defendant.

7. Under the evidence set out in the present bill of exceptions the trial court was free from error in refusing charge C, requested by the defendant. A charge somewhat similar to this charge was held to be good by the Court of of Appeals in Black v. State, 5 Ala. App. 87, 59 South. 692, but we direct attention to the fact that this charge is not a copy of the charge which was held good as applied to the facts in Bluitt v. State, 161 Ala. 14, 49 South. 854.

(11) 8. During the progress of the solicitor’s argument he was permitted by the trial court to comment upon the fact that no evidence had been developed on the trial tending to reflect upon the character of the deceased. This being the situation of the evidence, the trial court might well have excluded this portion of the argument of the solicitor from the jury. We make this statement in view of the fact that this case must again be tried. — Dryman v. State, 102 Ala. 130, 15 South. 433.

9. In the above opinion we have discussed all of the questions presented by this record which we deem of importance.

For the errors pointed out the judgment of the court below is reversed, and the cause is remanded to the court below for further proceedings in accordance with the views above expressed.

Reversed and- remanded.

Anderson, C. J., and McClellan, Sayre, and de Graffenried, JJ., concur.